WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
[1] . . .
[2] (c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45. (8) Prohibition: identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
45. (9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
Court File No.: C61360/13
Date: 2015-08-21
ONTARIO COURT OF JUSTICE
BETWEEN:
CHILDREN'S AID SOCIETY OF TORONTO
Mae-Tuin Seto, for the Applicant
APPLICANT
- and -
G.M., J.A., T.C., J.C. and A.D.
Cherry E. Isaacs-Reynolds, for the Respondent, G.M. Pius L. Okoronkwo, for the Respondent, J.A. Lance Carey Talbot, for the Respondent, T.C. The Respondents, J.C. and A.D., Not Attending Julia Tremain, for the Office of the Children's Lawyer, on behalf of the children, E.L.-C. and J.M.-C.
RESPONDENTS
Heard: August 18, 2015
Justice S.B. Sherr
ENDORSEMENT
Part One – Introduction
[1] The Children's Aid Society of Toronto (the society) has brought a motion within its status review application seeking to place the subject children, E.L.-C. (age 9) and J.M.-C. (age 7) (the older children), in the temporary care and custody of their maternal grandfather, subject to terms of supervision.
[2] The maternal grandfather resides in the Cayman Islands with the respondent, G.M. (the mother) and the older children's two younger siblings, J.P.A., (age 2) and E.M.-D. (age 4) (the younger children). The maternal grandfather is not a party to this case, but supports the society's motion.
[3] The society also seeks an order that the older children have telephone or Skype access to the respondent, T.C. (the father)[1] and his partner (S.T.) a minimum of once per week, and to the respondent J.C. (the paternal grandmother), a minimum of once every other week.
[4] The society's motion is supported by the mother, J.A. and counsel for the older children.
[5] The society's motion is opposed by the father.
[6] The paternal grandmother has filed an Answer/Plan of Care opposing the society's request to place the older children with the maternal grandfather. She did not attend on this motion or file any responding material. A.D. has not participated in any of the court proceedings.
[7] The father filed a cross-motion asking that the older children be placed in the joint temporary care and custody of himself and S.T., subject to the supervision of the society. In the alternative, he seeks increased access to the older children.
Part Two – Factual Background
[8] All four children came to the attention of the society in June of 2013, when the mother traveled to Jamaica and left them with an inappropriate caregiver. E.M.-D. was apprehended by the society, J.P.A. went to live with her father (J.A.) and the older children went to live with the paternal grandmother.
[9] The society commenced a protection application. On August 13, 2013, the older children were placed in the temporary care and custody of the paternal grandmother, with access to the mother and father to be arranged between the parties.
[10] On September 27, 2013, the older children were apprehended from the care of the paternal grandmother by Durham Children's Aid Society (Durham) after the older children made disclosures of inappropriate physical discipline by her and their paternal uncle. The paternal grandmother denied the allegations of physical discipline. She also denied that the paternal uncle resided in her home, despite disclosures to the contrary by the older children.
[11] The older children were placed in the temporary care of Durham. The case was then transferred to this court.
[12] The older children have remained in foster care since September 27, 2013.
[13] Multiple plans were presented to care for the older children by the mother, the father and S.T., and by the paternal grandmother. In December of 2013, the maternal grandfather put forward a plan to care for all four children that was assessed by International Social Services (ISS).
[14] On June 10, 2014, the society received a positive home-study from ISS with respect to the maternal grandfather's plan. It recommended placement of all four children with him.
[15] Police checks for the maternal grandfather and his son, who also resided in the home, came back clear.
[16] The maternal grandfather visited Canada from November 30, 2014 to December 10, 2014 and attended many visits with the four children.
[17] The father and the paternal grandmother opposed a placement of the two older children with the maternal grandfather.
[18] The parties reached an agreement that the younger two children would be placed with the maternal grandfather in the Cayman Islands and the older children would remain in care. The society would continue to assess all plans during the status review period.
[19] On January 27, 2015, the parties filed a Statement of Agreed Facts consenting to a finding that the younger children were in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) of the Child and Family Services Act (the Act) (and the youngest child was also found in need of protection under clause 37(2)(i) of the Act) and an order placing them with the maternal grandfather, subject to society supervision, for a period of six months. The parties asked the court to hold off making the order until travel arrangements to the Cayman Islands could be made.
[20] On February 10, 2015, the parties consented to a finding that the older children were in need of protection pursuant to clauses 37(2)(b) and (i) of the Act. The parties consented to a disposition of six months society wardship, with access to family members in the discretion of the society.
[21] The parties entered into a Statement of Agreed Facts in January of 2015 to support this order that included the following facts:
a) There were concerns regarding the mother's substance abuse involving marijuana, unsound judgment and decision-making, neglect and lack of suitable and secure housing.
b) J.M.-C. disclosed physical discipline by the paternal grandmother on more than one occasion and disclosed that his paternal uncle had used a belt on his forearm and hip. E.L.-C. reported that the paternal uncle beat them. The older children both reported that the paternal uncle lived in the home, contrary to what the paternal grandmother advised the society.
c) The society had serious protection concerns about the father due to his involvement with the criminal justice system. He had 21 records of arrest. His criminal record dated back to 2002. He had approximately 9 convictions for offences including robbery, trafficking cocaine, possession of cocaine, assault, possession of prohibited or restricted firearm with ammunition and personation with intent.
d) The father was serving a federal sentence of three years, nine months, for firearm offences. He was released on parole on July 4, 2014. However, he tested positive for drug use. He was arrested at court on September 15, 2014, his parole was suspended and he was returned to the penitentiary, with a new expected release date of June 16, 2015.
e) The society had protection concerns about S.T. because of her criminal history for breach of trust and because in 2011 she was convicted for bringing drugs into the jail when visiting the father. The trial judge found that she was wilfully blind to bringing the drugs to the father. The society was also concerned about S.T.'s minimization of the father's criminal history and the risks it posed to the older children. S.T. advised the society that she knew that the father was involved in the possession and selling of drugs and firearms.
f) There was a high degree of conflict between S.T. and the mother.
g) The paternal grandmother had a protection history with child protection agencies dating back to 1985 related to various concerns, including inadequate adult supervision, behaviour management issues with her children, domestic violence and the use of physical discipline.
h) The paternal grandmother had refused to accept services recommended by the society in order to address the protection concerns. Her position was that she did not inappropriately discipline the older children and services were unnecessary.
i) The society had received positive hair strand tests for marijuana use from the mother. The mother participated in a substance abuse program and demonstrated several gains, including a sharp decrease in her marijuana usage. The mother was inconsistent in meeting with her drug counselor after this program. The mother's visits with the children were positive and her visits were expanded. She had challenges maintaining stable housing.
[22] On March 4, 2015, the court made the orders sought by the parties with respect to the younger children and they went to live with the maternal grandfather in the Cayman Islands.
[23] The mother also moved to the Cayman Islands to live with the maternal grandfather and the younger children. She continues to reside there.
[24] The society issued its status review application seeking to place the older children with the maternal grandfather on July 7, 2015.
[25] The father was released on parole in June of 2015. He will be living in a halfway house until October 30, 2015. He is subject to a curfew requiring him to be back at the halfway house by 1 a.m. each day. He can leave again at 7 a.m. The terms of his release prohibit him from consuming alcohol.
[26] The father plans to live with S.T. once he is released from the halfway house. He deposed that they are looking for a larger apartment to accommodate the older children.
[27] The older children visited the father three times in total over the nearly two years that they have been in care and he was in prison. He presently sees the children twice a week, for two hours each visit, at the society offices.
[28] S.T. exercised access to the older children at the society offices while the father was in prison and has gone with the father on access visits since he was released from prison.
Part Three – Legal Considerations
[29] The society and the father are both asking to change the final protection order in this status review proceeding on a temporary basis.
3.1 Statutory Considerations
[30] Clause 65(1)(a) of the Act provides that on a status review application, the court may, in the child's best interests, vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order.
[31] Subsection 64(8) of the Act provides the authority and criterion for making temporary care and custody orders in a status review proceeding. This subsection reads as follows:
Interim care and custody
(8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody.
[32] Justice John Kukurin discussed the test to be applied in paragraph 16 of Children's Aid Society of Algoma v. S.S., 2010 ONCJ 332, as follows:
16 Subsection 64(8) does not create a presumption in favour of whomever has care and custody of a child. It goes further than a presumption. The use of the words "shall remain" implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child requires a change in that status quo. In my view, the use of the word "require" in this provision is not accidental. "Require" is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation. Moreover, the criterion for determining that there is a requirement for a change is the best interests of the child. Whenever this test is to be applied under the statute, the person making the determination must take a number of listed considerations into account.
[33] The onus to satisfy the court falls on the party seeking to change the status quo. See: Children's Aid Society of Toronto v. S.G., 2011 ONCJ 746.
[34] Subsection 37(3) of the Act sets out considerations to apply when determining the best interests of a child as follows:
Best interests of child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
The child's relationships by blood or through an adoption order.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
3.2 Temporary Mobility Considerations
[35] The parties relied on my decision of Boudreault v. Charles, [2014] O.J. No. 5779 (OCJ) in arguing the society's temporary motion to send the older children to live with the maternal grandfather in the Cayman Islands. Boudreault reviewed legal considerations in temporary mobility cases. A summary of those considerations is set out in paragraph 25 and paragraph 26 (a) – (g) as follows:[2]
[25] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:
a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.
b) There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.
c) Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent's position will prevail at trial.
[26] The following are additional principles regarding temporary relocation cases:
a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).
b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster, [2003] O.J. No. 4255 (OCJ).
c) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair 2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.
d) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See my comments in: Downey v. Sterling 2006 ONCJ 490, [2006] O.J. No. 5043 (OCJ) and Costa v. Funes [2012] O.J. No. 3317 (OCJ).
e) Courts will be more cautious in permitting a temporary relocation in the absence of a custody order. See: Mackenzie v. Newby, supra.
f) Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father's contact with the child could not override the benefits that the move would have on the child).
g) In assessing whether the three considerations in Plumley, the court must consider the best interest factors set out in subsection 24(2) of the Children's Law Reform Act (the Act) and any violence and abuse in assessing a parent's ability to act as a parent as set out in subsections 24(3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.). The law is summarized in paragraphs 49 and 50 of that case as follows:
49 The law can be summarized as follows:
a) The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
b) The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
c) Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
d) The focus is on the best interests of the child, not the interests and rights of the parents.
e) More particularly, the judge should consider, inter alia:
the existing custody arrangement and relationship between the child and the custodial parent;
the existing access arrangement and the relationship between the child and the access parent;
the desirability of maximizing contact between the child and both parents;
the views of the child;
the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
disruption to the child of a change in custody;
disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new.
[36] While many of the principles in Boudreault are helpful in this matter, the court has to consider that there are other important considerations in child protection cases. Boudreault was a parenting dispute between two parents pursuant to the Children's Law Reform Act. Here, the older children are in foster care pursuant to the Act.
[37] The best interests test under subsection 24(2) of the Children's Law Act is different than the best interests test under the Act – the latter test placing an emphasis on the risk of harm to children, the importance of the child's cultural background, religious faith, the importance of the child's positive relationship with a parent and the child's need to have a secure place as a member of a family.
[38] Subsection 1(2) of the Act states that one of the purposes of the Act is to recognize the least disruptive course of action that is available and is appropriate in a particular case.[3] The preference of placement of children with family and community members as opposed to remaining in foster care is a theme throughout the Act.[4]
[39] The principle of preferring family or community placement to foster care has to be weighed against the principle of making reasonable efforts to return a child to the person who had charge of the child prior to society involvement under the Act (usually (but not always) the child's parents). [5] The reality is that if a child is placed with an extended family member that lives far away on a temporary basis, the parents' opportunity to prove that they can safely parent the child will be severely compromised and this fundamental objective of the Act will be frustrated.[6] This is not in a child's best interests.
[40] A review of these objectives and principles informs the court that if a parent will be unable to provide a realistic plan within a reasonable period of time, it will generally be in the child's best interests to be placed with a suitable family or community member – even if the placement is outside the jurisdiction. What constitutes a reasonable period of time will be determined in large part by how long the child has been in the care of the society. The closer the child is to the statutory time limit for being in care pursuant to subsection 70(1) of the Act,[7] the less time the parent should have to establish that they will be able to present a realistic plan for the child. As stated by Justice Heather Katarynych in Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.):
A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that she faces some better prospects than what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent.
[41] Other considerations which will impact on whether the proposed temporary move should be allowed in a child protection case include:
a) Whether the proposed move is in the context of a protection application or a status review application. The court will likely apply a stricter test during an original protection proceeding since there has not yet been a finding that the child is in need of protection, the statutory time limits are less likely to have been exceeded, the parents will be just beginning to address the risk concerns and should be given a reasonable opportunity to show that they can safely parent the child.
b) The nature of the protection issues, including the severity of the risk concerns. This will likely dictate how long a parent might take or should be given to address these concerns. If the risk to a child is low to moderate and will likely be addressed in a timely manner, it is not a proportionate response to move a child far away from the parent to an extended family member. The parent should be given every reasonable chance to succeed. The consideration is different if the risk concerns are high and unlikely to be addressed by the parent in a timely manner.
c) Whether the proposed move will involve a change in who is caring for the child. If the change is being proposed in a status review proceeding (as is the case here) the test in subsection 64(8) of the Act and the law set out in paragraphs 32-34 above must be applied.
d) Whether the child is in the care of the society at the time of the motion. It is generally advantageous to a child to be placed with a member of his or her family, rather than remain in a foster placement.
e) Whether the child will be moving to reside with a parent, which move will generally be viewed more favourably than a move to live with an extended family member.
f) How closely the child protection case resembles a domestic dispute. In some cases the society is only involved to monitor high conflict between parents and to protect the child from emotional harm. There may only be a supervision order in place. The closer the case resembles a domestic dispute the more appropriate it will be for the court to apply the principles reviewed in Boudreault in assessing whether to permit a proposed move on a temporary basis with one of the parents.
g) The nature of the relationship between the child and the proposed caregiver.
h) The proposed caregiver's ability to meet the needs of the child in the new jurisdiction, including the child's academic, medical, social, and development needs. It needs to be kept in mind that many children in child protection cases have special needs due to their exposure to substandard parenting.
i) The proposed caregiver's ability to work cooperatively and honestly with the society and to comply with court-ordered terms of supervision.
j) The proposed caregiver's willingness to facilitate any order for access to the left-behind parent and extended family members.
k) The ability and willingness of a child protection agency in the new jurisdiction to monitor any supervision order. Its ability to do so needs to be assessed in the context of the degree of any risk concerns with the caregiver – the higher the risk, the more important the ability to monitor the caregiver becomes.
l) The nature of the relationship between the child and the left-behind parent or parents and their extended families and the possible emotional risk of harm to a child of diminishing those relationships. The court will generally be more reluctant to approve a move where the left-behind parent has been actively involved in raising a child. That parent should be given a longer opportunity, within the parameters of the statutory time limits, to demonstrate that he or she can adequately address the risk concerns.
m) The impact of the move on the left-behind parent or parent's ability to present a positive plan for the child.
n) The child's age, stage of development and degree of maturity.
o) The child's views and preferences.
[42] Many of the temporary mobility principles set out in Boudreault are applicable to the assessment of a temporary mobility motion in a child protection case. The court should be cautious in making such orders when there are material facts in dispute that require testing at trial or when the proposed move involves a long distance. The temporary decision will often have a strong influence on the final outcome of the case. Courts do not like to create disruptions in the lives of children by making an order that may result in further disruption later if the order has to be reversed. Further, a move involving a long distance will severely compromise a parent's opportunity to prove that they can safely parent the child.
Part Four – The Father's Motion
[43] The father seeks an order placing the older children in the temporary joint care of him and S.T., subject to society supervision. He submits that the best interests of the older children require this because:
a) The older children do not want to remain in foster care and they are reaching the statutory time limit (in September of 2015).
b) He and S.T. have a close relationship with the older children.
c) He and S.T. have had positive access visits with the older children since he was released from jail in June of 2015.
d) He and S.T. have a stable relationship.
e) He will be able to live with S.T. as of October 30, 2015.
f) His curfew, while he resides at the halfway house, permits him to be with the older children when they are awake.
g) He and S.T. have stopped using drugs.
h) He and S.T. have learned their lessons from their criminal behaviour and will not repeat it.
i) He has looked into schools and an after-school program for the older children.
j) He listed many members from his and S.T.'s families who will provide them with parenting support.
k) He is employed part-time and S.T. is employed full-time.
[44] The father did not meet his onus of establishing that the best interests of the older children require a change in their care and custody to him and S.T.
[45] Further, the evidence indicates that the father will not be able to present a realistic plan for the older children within a reasonable period of time.
[46] The court makes these findings for the following reasons:
a) The father has a lengthy history of severe criminality. This includes convictions for violent offences such as robbery, assault and the sale of weapons. There is also a theme of drug use and drug trafficking in his record.
b) The father has exposed the older children to his criminality and high-risk behaviour. He exhibited irresponsible parenting judgment when he did this.
c) The father's criminal behaviour is long-standing and deep-rooted. When he was released on parole in 2014, he could only remain out of jail for two months. What is highly concerning is that this was his opportunity to show that he could change and demonstrate that he could responsibly parent the older children.
d) The father had three positive drug tests in 2014, including for THC and Ecstasy.
e) The father has been in jail for most of this court action. He was out of jail for two months in 2014 and has only been out of jail since June 16, 2015. He has been unavailable to parent the older children.
f) The father has had very limited contact with the older children for the past two years.
g) The father demonstrated very little insight in his material into how his behaviour has placed the children at risk of physical or emotional harm.
h) The father would need to establish a much longer period of abstinence from drug use and criminal behaviour, given his history (at least a year), before his plan could be seriously considered.
i) S.T. also has a criminal record related to breach of trust. S.T. demonstrated terrible judgment when she was found to be wilfully blind to bringing drugs to the father in jail.
j) S.T. has demonstrated little insight into how the father's behaviour has placed the older children at risk of physical or emotional harm. She was aware that the father was bringing drugs and guns into the home and the older children spent considerable time there.
l) The father, S.T. and the paternal grandmother have not taken any meaningful steps to address the protection concerns, such as attending at treatment programs. Other than the father being released from jail, there has been no change in circumstances affecting the risk to the older children.
m) The father essentially presented a plan to have a plan. He is required to live in the halfway house until October 30, 2015. The father and S.T. are still looking for adequate housing for the older children.
n) The father has questionable supports. The children were apprehended from the paternal grandmother's care after allegations by the children of physical abuse by her and a paternal uncle. The paternal grandmother maintains that the older children were lying and has refused requests by the society to attend services to address the protection concerns. The paternal grandmother has a child protection history with her own children. It is noteworthy that the father breached his parole while living at the paternal grandmother's home in 2014. Although she has presented a plan to care for the children she did not attend at this motion or file any material. She has not presented a realistic plan.
o) The physical and emotional risks of harm to the older children would remain unacceptably high if they were placed in the care of the father and S.T.
p) The older children have been in care for almost two years. They have remained in limbo. They need a permanent home. The opportunity for the father to prove himself was when he was released in 2014. He failed. It is now far too late for the older children to attempt this process now.
[47] This evidence also does not support the father's alternative request to increase access. The father needs to establish a longer period of refraining from criminal activity and drug use before it can be consistently safe for the older children to have unsupervised access with him.
Part Five – The Society's Motion
[48] The society met its onus of establishing that the best interests of the older children require a temporary change in their care and control to the maternal grandfather, despite the distance of the move proposed.
[49] The court makes this finding for the following reasons:
a) The children have been in foster care for almost two years, close to the statutory time limit set out in clause 70(1)(b) of the Act.
b) The older children do not wish to remain in foster care any longer. E.L.-C. has expressed a strong view to live with the maternal grandfather in the Cayman Islands. J.M.-C. would prefer to remain in Canada, but does not want to be separated from E.L.-C. Counsel for the older children urged the court to place both of them with the maternal grandfather at this time.
c) It appears that there will be no realistic plan for the older children in Canada within a reasonable period of time. The only realistic option to the society's plan at this time is an order for crown wardship. The father and the paternal grandmother are not realistic placement options.
d) The older children would be reunited with the younger children.
e) The older children would live with a parent, the mother.
f) The maternal grandfather has provided a good plan to care for the older children. It has been endorsed by the Department of Children and Family Services in Cayman Islands (the Department), which has supervised the court order as agent for the society. It has also been endorsed by the society.
g) Very importantly, the maternal grandfather has demonstrated strong parenting skills in caring for the younger children for the past five months. They are happy and thriving in his care. The court wanted to see how he managed two children, before considering whether all four children could be placed with him.[8]
h) The society and the Department reported that the maternal grandfather has been extremely cooperative, honest and forthright with them.
i) The reports of the Department give the court confidence that they are appropriately monitoring the court's supervision order for the younger children.
j) Counsel for J.A., confirmed that the maternal grandfather has been very cooperative in arranging contact between J.A. and his child.
k) The maternal grandfather presents with the following strengths according to the Department reports and the society worker:
i) He is a responsible member of the community. He works for the Ministry of Sports and earns a good income. He runs a camp for young children during the summer.
ii) He has provided appropriate accommodation for the younger children. He owns a large detached property and has no mortgage. The home was described as clean and tidy, well-furnished and maintained and has modern amenities. No health or safety issues were noted by the Department.
iii) He has ensured that all needs of the younger children have been met. The younger children have an established routine.
iv) He has been committed to caring for the younger children for five months.
v) He is 56 years old and in good health (although he has hypertension at times).
vi) The Department social worker was impressed by his understanding of the older children's needs and awareness of the impact of separation and loss on them.
l) There are compelling reasons to make the move at this time. The older children will have the opportunity of starting at a new school at the beginning of a school year. This will give them the best opportunity to succeed at school and form important social relationships. It would be disruptive to their education and harder for them to adapt to a new school if they are subsequently moved later in the school year. It may be many months before a trial could be held.[9] The length of the time that the older children have been in care and their understandable desire to live with family as soon as possible are also compelling reasons to move them now.
m) The father raised some concerns about the society's plan which he argues requires a trial and a testing of the evidence – he argues that the move is premature.[10] The court does not agree. The evidence is overwhelming at this point that this is the best plan for the older children and that the father will not be able to present a realistic plan within a reasonable period of time. A trial is not required to make these findings. The concerns raised by the father can be adequately addressed through the temporary supervision order. The maternal grandfather has proven through his positive parenting of the two younger children that the best interests of the older children require an order that they should be placed with him.
n) If the maternal grandfather parents the older children as well as he has parented the younger children, the society will be encouraged to bring a motion for summary judgment.
[50] The society worker presented a plan for telephone and Skype access to the father, S.T. and the paternal grandmother. It was supported by counsel for the children. The father expressed a concern that the mother would not facilitate this access. However, she will not be the subject of the supervision order – the maternal grandfather will. He has already demonstrated compliance with court orders and has supported J.P.A.'s relationship with his father.[11] There is no evidentiary basis to conclude that his compliance would not continue. The court agrees that this plan is in the older children's best interests and it will be ordered.
[51] The society's motion will be granted. The court was advised that the children will be at camp until August 28, 2015, so the order will become operative on August 29, 2015. The existing order will continue until then.
Part Six – Conclusion
[52] A temporary order shall go on the following terms:
a) The children shall be placed in the care and custody of the maternal grandfather subject to the supervision of the society, on the following terms:
i) The maternal grandfather shall continue to communicate with the society and allow society workers to speak frequently with him and the older children by telephone or Skype or other video conference application.
ii) The maternal grandfather shall continue to cooperate with the Department and comply with their reasonable requests.
iii) The maternal grandfather shall comply with access orders.
b) The father and S.T. shall be entitled to exercise telephone or Skype access to the older children a minimum of once per week. The society shall request that the Department assist in monitoring this order to ensure compliance.
c) The paternal grandmother shall be entitled to exercise telephone or Skype access to the older children a minimum of once every other week. The society shall request that the Department assist in monitoring this order to ensure compliance.
[53] This order shall become operative on August 29, 2015. The existing order shall remain in force until then.
[54] The status protection applications for all four children are adjourned until October 6, 2015 at 10:00 a.m. for a case conference. If a counsel is not available, he or she can coordinate another return date through the trial coordinator's office.
[55] The court thanks counsel for the excellent quality of their presentations.
Justice S.B. Sherr
Released: August 21, 2015
Footnotes
[1] T.C. is the father of the older children. The respondent J.A. is the father of J.P.A. and the respondent A.D., is the father of E.M.-D.
[2] Other considerations are set out in paragraph 26 that are more relevant to domestic than child protection cases.
[3] This objective is reinforced in subsection 57(3) of the Act.
[4] For example, see subsections 37(5), 51(2) and (3.1) and 57(4) of the Act.
[5] For example, see paragraph 1 of subsection 1(2), subsection 51(2) and (3) and section 57 of the Act. Also see: Family & Children's Services of St. Thomas and Elgin v. A.C., 2013 ONCJ 453.
[6] For the ease of reading this, I am referring to the persons who had charge of the child prior to the society starting the protection application as the parents. However, these persons can be someone other than the parents.
[7] Subsection 70(1) of the Act reads as follows:
Time limit
- (1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,
(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or
(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.
[8] The court acknowledges that the placement has not been without problems. The maternal grandfather expressed to the Department social worker that he found it financially very stressful to care for the younger children. More recently, he has advised the society that his stress level is much improved, as the mother is now working and contributing financially.
[9] Priority is given to younger children in assigning trials.
[10] The father raised the issue of the mother's involvement in the plan, given the risk concerns about her, the health of a maternal uncle who may be living in the home, the availability of the maternal grandfather, given his work schedule and the stress on the maternal grandfather of caring for four children.
[11] E.M.-D.'s father has not participated in the court proceedings and has no contact with her.
