---
# WARNING
The court hearing this matter directs that the following notice 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:
(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
**Sudbury Court File No.:** C-527-02
**Date:** 2015-08-31
**Ontario Court of Justice**
**In the Matter of the Child and Family Services Act**
**Between:**
The Children's Aid Society of the Districts of Sudbury and Manitoulin
Dawn Dubois, for the applicant
**— And —**
P.H.
J.S.
George Fournier, for the respondent father
Gerald Brouillette, Office of the Children's Lawyer, counsel for the child
**Heard:** August 28, 2015
**Before:** Kukurin J.
---
# Decision
## [1] Issue
The issue in this decision is on variation of an order of temporary care and custody.
## [2] Motion Claims
These are Reasons for a decision on a motion (at Tab 17) brought by the applicant society in this child protection case for:
(a) an order for leave to amend its child protection application; and
(b) an order varying an existing order for temporary care and custody; and
(c) an order for interim paternal access.
## [3] Deferred Motion
The motion at Tab 17 was brought contemporaneously with a motion (at Tab 18) for an order pursuant to s.54 of the [Child and Family Services Act](https://www.ontario.ca/laws/statute/900011) (CFSA) requiring the respondent father in this case to undergo a 'psychosexual assessment', that is, an assessment for Sexual Preference Testing including a psychological assessment and phallometric testing. However, the society elected not to proceed with this motion at this time, and is deferring it to a later date.
---
# Leave to Amend Application
## [4] Judicial Leave to Amend
Judicial leave to amend a child protection application is not required if a significant event happens after the original document (in this case, the original child protection application) was filed. It is abundantly clear that multiple significant events have taken place in that interval. Accordingly, the society can amend without leave. If, out of an abundance of caution, it wants judicial leave to do so, it is granted. No one present opposes this claim.
## [5] Service on Mother
The amended application, and the society's related plan of care, is already filed in the continuing record, and ironically, contemporaneously with its motion for leave to amend. Of note is the fact that the Respondent mother was not served with the initial application. An order was made dispensing with service on her. The society was then seeking an order placing the child with 'kin' for six months. The amended application asks for something more intrusive. It seeks an order for society wardship for six months. Such an order starts a clock ticking. The clock is a 'time in society care' clock, which has statutory limitations on how long a child may remain a society ward. Beyond these limitations, if removal of a child from the child's family is to continue, it is often by a permanent removal. Accordingly, the mother should be served with the amended application, or the society should convince the court, preferably by motion, that service of this amended application should also be dispensed with.
---
# Variation of Temporary Care and Custody
## (a) Background
## [6] Judicial Oversight and Statutory Definitions
The child protection case rarely has a brief lifespan. The present case, for example, is already eight months old. Children's Aid Societies are given powers to intervene in families for the purpose of protecting children from harm. However, those powers are limited by the same statute that creates them. The most critical limitation is judicial oversight. The society has to start a court proceeding if it wishes to have a child protection order. The most critical step in such a proceeding is the judicial finding that the child who is the subject of the proceeding, is a child in need of protection. A child in need of protection is defined in the statute, and it is the responsibility of the society to convince the court that the child falls within one of the several statutory definitions. In the present case, the only definition, or ground, relied upon by the society is found in s.37(2)(d) of the CFSA. It is not relying on s.37(2)(c) for such a finding.
## [7] Source of Risk
As for the source of the risk of sexual harm, the society's evidence points a finger primarily at the child's father as the person who had charge of the child. There is some secondary evidence that risk of sexual harm also arises from the father's failure to protect the child from contact with another person who also poses a risk of such harm. There appears to be a consensus that the father was, indeed, "the person who had charge of the child immediately before intervention" by the society, notwithstanding that she had not been living with him for over half a year by that time. To hold otherwise would make it impossible to rely on s.37(2)(d) grounds as these link the risk of harm to the person who had charge.
## [8] Statutory Timelines and Bifurcated Proceedings
We are not even at the finding stage of this case. This, despite the statutory imperative in the CFSA to the court to fix a date for the hearing to determine if the child is in need of protection. This kind of delay is unfortunately not unusual in child protection cases. The determination of whether a child is in need of protection should not be allowed to drift. The statute provides a three month period within which it is expected that the hearing for a finding will take place. This is some statutory guidance to the court, but also to societies and to respondents in such cases, as well. The CFSA contemplates a bifurcated proceeding. The finding is the first part of the case. Only if a finding is made does the court move on to the second part which involves the disposition. Timelines for completion of the entire case is four months.
## [9] Importance of Time and Family Separation
This emphasis on time is important. The importance is amplified in those child protection cases where the child is removed from the family. When the child is with 'kin', the separation from family is somewhat attenuated. When the child is in the care of the society, every day counts. The impact of a separation of a child from its family can be lessened by access visits. However, access visits are light years removed from the 24/7 contact that the child had with its family members prior to being removed.
## [10] Initial Circumstances
The foregoing is all a preamble to our present circumstances. The child is 14 years old. She ordinarily resides with her father. It is uncertain if the child was actually apprehended. The father was being investigated by police as a result of information obtained from school acquaintances of the child. He was, in fact, arrested and charged with sexual offences, not involving the child in this proceeding as the victim, but rather two other girls (AD and SM). His bail conditions from May 2, 2014 prohibited him from contact with either of them and with his daughter. He made arrangements for his daughter to stay with their pastor's family. She did so for a while. The society designated the pastor's home as a place of safety, which suggests that there was an apprehension. However, the fact that this took place in May 2014 and the society did not start its case until December 2014, suggests the contrary.
## [11] Change of Placement
In any event, the society became disenchanted with the placement in the pastor's household. By July or August 2014, the child was staying with a maternal aunt M. and her husband D.. How she came to be there is not clearly disclosed in the evidence, although it appears that the father was somehow instrumental in this change of placement.
## [12] Initial Court Order
This was the situation when the society filed its child protection application in December 2014. It was requesting (in its motion at Tab 3) an order for temporary care and custody of the child with her maternal aunt. This was, in fact, ordered on a "without prejudice" basis on January 7, 2015, not surprisingly as the child was already residing there and the father was barred from contact with her. An order was made for access to the father, in the discretion of the society, and to be supervised in the discretion of the society, but any paternal access was contingent on the prohibition against father-daughter contact being removed as a bail condition in the father's bail release recognizance in his criminal proceedings.
## [13] Criminal Charges Withdrawn
The father attests that all criminal charges against him were withdrawn on March 4, 2015. The society may have believed otherwise, but it seems clear now that this was so. The father entered into a section 810 Criminal Code recognizance on this date which prohibits him from communication or association with the girls AD and SM, as well as with AD's mother, for a period of one year. The prevailing belief, based on speculation more than fact, is that the withdrawals and the peace bond were the outcome of plea bargaining between the crown and the defence in the criminal prosecutions. In any event, all agree that, with the withdrawal of the charges, the recognizance of bail ended, as did the father's prohibition against contact with his daughter.
## [14] Unsupervised Access
The child's maternal aunt M., and her husband D., thereupon allowed father-daughter contact or access. It appears that most, but not necessarily all of this contact was supervised by one or the other of them. The society became aware of this at some point and took exception to this, since an order existed that provided that paternal access was to be in its discretion. It could not exercise such discretion if it had no advance notice of such contact. On the other hand, an interim supervision order was in place which suggests that the society was supposed to be monitoring the placement and what was going on.
## [15] Placement with J. and T.
In any event, this case underwent a settlement conference and was adjourned to May 11, 2015. On that day, a temporary care and custody hearing took place. By then, problems had developed in the child's placement with her maternal aunt and uncle. A temporary care and custody order was made placing the child with J. (the brother of her uncle D.) and his wife, T.. She has remained there from May to the present. However, this was only meant to be a short term placement. T. and J. are apparently unable or unwilling to continue as the child's temporary caregivers and custodians. They have provided a deadline of September 2, 2015 for a new placement to be found for the child. The order of May 11, 2015 was not made "without prejudice" but made following a formal hearing. There are no reasons endorsed for this order of temporary care and custody despite s.53 CFSA. No transcript of this temporary care and custody hearing has been provided for the present motion to vary the order made then. It is possible that reasons were given orally.
## [16] Society's Motion to Vary
The society has brought its motion at Tab 17 seeking a different temporary care and custody order. It says that it has exhausted its search for 'kin' and is opposed to the child returning to her father. It is seeking temporary care and custody, and presumably intends to place the child in a foster home. The father opposes this and wants the child back with him.
## [17] Child's Legal Representation
An order was made on May 29, 2015 for the child to have legal representation. She has a panel lawyer from the Office of the Children's Lawyer. This appointment was, I gather, fairly recent. The child has filed no evidence in the case as yet, although she is entitled to participate, and depending on how one interprets s.39(6), she can participate "as if … she were a party." Her counsel has had only preliminary discussions with her. At this motion, he advised the court and the other parties not only of her position on the motion claims, but also of her position on some of the factual allegations made by the society. This was clearly hearsay, but then, so is most of the pertinent evidence filed to date in this case.
## [18] Amended Application
The society's initial application contained a claim for a disposition that involved placement of the child with her Aunt M. and her uncle D., subject to a six month supervision order with conditions. Developments have relegated that claim to history. The inability of the child to remain with her present 'kin' has prompted the society to amend its claim in its application to one of six months society wardship. That amended application was filed August 21, 2015, eight months after the date of the society's first application.
---
## (b) The Test for Variation of Temporary Care and Custody
## [19] Statutory Framework
Orders for temporary care and custody are made under s.51(2) CFSA. There are four options. The first two involve non-removal orders. The latter two involve orders removing the child from its pre-intervention custodian and caregiver. Which order is made is decided on the basis of the test set out in s.51(3) CFSA. It is not disputed that the order of temporary care and custody made on May 11, 2015 was made under s.51(2)(c) CFSA. The corollary is that the society had met the two part test in s.51(3) at that time.
## [20] Power to Vary
The court is given the power to vary a temporary care and custody order in s.51(6) CFSA. It can do so at any time. Regrettably, the CFSA does not provide any specific statutory guidance as to what criteria the court should apply when deciding whether it should vary an existing order. The good news is that jurisprudence has developed on this very issue and serves as a guide when issues of variation of temporary care and custody orders arise. The bad news is that there is no clear cut judicial consensus as to what criteria are to be applied in making this decision.
## [21] Starting Point and Material Change
It seems logical that there be a starting point for a variation under s.51(6) CFSA. That starting point could be the circumstances prevailing at the time of the order sought to be varied. Or it could be the circumstances at the time of society intervention. What is a pre-requisite for any variation is a change in circumstances from whatever starting point is chosen. Some jurists feel that the change in circumstances has to be a 'material' one.
## [22] Material Change in Circumstances
The mere fact that the child is no longer able to remain in the home where she is constitutes a material change in, at least, her circumstances. However, the variation motion is not simply finding another place for her to reside. There have been other changes since the child was placed in the temporary care and custody of J. and T., the most significant being the imminent eviction of the child from their home. There have been changes even before then dating back to the point when the society commenced its application. These also have been quite significant.
## [23] Broad Considerations
That a change will be made is disputed by no one. What that change should be is what is the crux of this motion. The court necessarily has to look at all of the changes that have taken place to make this determination. It is not enough to say that a removal order was made at one point in the proceeding, and the court dealing with a variation should not now be revisiting the propriety of a removal order continuing, albeit a different removal order. Besides, this court does not know why the prior temporary care and custody order was made. And it ought not speculate on the reasons. My views as to what the court should be considering are that the considerations should be broad rather than narrow. I reiterate comments made by me in a case involving an issue not totally dissimilar from that in the present case.
> Implicit in any order for temporary care and custody is temporality. The fact that such orders are temporary is significant. Among the temporal factors are length of time that the status quo has existed (and why), the length of time before the case comes to trial, the length of time that the children have maintained contact with parents, and the point in time when the proposed change in temporary care and custody is to take place. There may be other temporally related considerations depending on the facts of a particular case. The court should remain cognizant of the overall context in which the variation claim is before the court. History of the parties, of the children, of the case itself may be significant factors that could be relevant to the motion.
## [24] Benchmark for Decision
What should the court be considering as its benchmark for deciding what order it should make? The provisions of s.51(3) certainly seem to be pertinent. The society argues that the test is also one of what is in the best interests of the child. There is also the impact of s.1 of the CFSA, which applies throughout the statute, and sets out the paramount purpose, (which is expressed as a trinity of purposes), as well as additional purposes, provided that they are consistent with the paramount purpose.
## [25] Manifold Criteria
The end result is that the criteria that apply to a variation of temporary care and custody are manifold and are not necessarily limited to looking at circumstances that date back only so far as the order which is sought to be varied.
---
## (c) Evidentiary Considerations
## [26] Statutory and Rules Framework
Regardless of whether the criteria to be applied is s.51(3) CFSA, best interests, or paramount and secondary purposes of the CFSA, or any combination of them, the determination of the motion claim must be made based on evidence in the case. The CFSA is an unusual statute in that it contains a procedural code for proceedings brought under its Part III. This procedural code is not exhaustive. The Family Law Rules also apply to proceedings under Part III of the CFSA. Both the statute and the Rules have a number of provisions that are evidentiary in nature. A brief review of the more pertinent ones wouldn't be superfluous.
## [27] Motion Evidence Rules
It should not be forgotten that what is before the court is a motion, specifically a motion that falls under Rule 14. The two main evidentiary subrules in Rule 14 are:
**Affidavit Based on Personal Knowledge**
R.14(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.
**Affidavit Based on Other Information**
R.14(19) The affidavit may also contain information that the person learned from someone else, but only if:
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and
(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.
## [28] Section 51(7) CFSA
Section 51 of the CFSA deals with temporary care and custody. The CFSA permits the court a wider than normal latitude to admit and act on evidence for purposes of the temporary care and custody determinations it makes under this section 51. The provision states:
> S.51(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.
## [29] Section 50(1) CFSA
Section 50(1) of the CFSA also applies to temporary care and custody determinations, and indeed to the entirety of any proceeding under Part III.
> S.50(1) Despite anything in the Evidence Act, in any proceeding under this Part,
>
> (a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
>
> (b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.
## [30] Definition of Hearsay
Worthy of mention is the definition of "hearsay" simply because there is so much contained in the affidavits filed as evidence in this case. Hearsay, in its simplest definition is:
> Hearsay n, that which one has been told but has not been directly experienced.
## [31] Hearsay Admissibility
A statement constitutes hearsay in a proceeding if it is tendered as proof of the truth of the assertions contained in the statement. Hearsay is presumptively inadmissible unless it falls within one of the classic exceptions to the rule against hearsay, or unless it meets the criteria of necessity and reliability in the more modern principled approach to admission of hearsay. Perhaps, one further important exception should be mentioned, namely, that hearsay evidence is admissible in proceedings where the governing statute or the Rules applicable to the proceeding allow for its admission. In the case of a motion under s.51(6) for variation of a temporary care and custody order, both the statute and the Rules permit hearsay to be admitted, although this permission is not a carte blanche.
## [32] Multiple Layers of Hearsay
The classic hearsay statement is that made by A, the viva voce witness or the deponent in a sworn affidavit, that B, told A that X had done a certain act. The hearsay arises when this statement is proffered as proof that X had done that act. That classic scenario is not always what appears in the evidence. What is often tendered is hearsay evidence that is "double hearsay" or "triple hearsay". An example is the deponent A stating that B told A that C had told B that C had seen X do a certain act. Another common example in child protection evidence is that the deponent A had learned from society records or other records that B had spoken with C and C had told B that X had done a certain act. Whether this even falls within the definition of hearsay is uncertain. What is more to the point is how any such evidence is dealt with by the trier of fact.
---
# Analysis
## [33] Totality of Evidence
Dealing firstly with s.51(3) CFSA, the test for choosing between a removal order and a non-removal order is not once and for all time. What may have been evidence justifying a removal order on January 7, 2015 (first court date) was not the evidence that was before the court on May 11, 2015 (temporary care and custody hearing date) and is not the evidence before the court now (variation of temporary care and custody hearing date). It is necessary to look at the totality of the evidence to decide which order is the proper one to make.
## [34] Initial Evidence Against Father
When this case was commenced, the father was barred from contact with his daughter by a recognizance of bail. He was facing several charges involving alleged sexual offences against two different complainants. In addition, although not the subject of formal charges, the father was alleged to have touched his daughter in a sexually inappropriate manner. He was alleged to have acted inappropriately with his daughter and with some of her peers in ways that were short of actual grounds for sexual offences. For example, he had taken photos of his daughter in a bikini and posted this on her Facebook account. He was also alleged to have exposed the child to another individual whom the society claims is "known to be addicted to pornography" and who had touched the child. Finally, there are allegations of physical and verbal aggression by the father towards his daughter including, on one occasion, pulling her by the hair. It is unquestioned that the time frame for all of this conduct was prior to May 2014, since from that day, he was barred from contact with his daughter. In addition, the bikini post predated mid-January 2014, and the exposure to the porn addict may have been as far back as 2008.
## [35] Father's Response
There was no paternal response to this evidence on the first court date of the society's application in January 2015. A removal order was inevitable at that time, regardless of the quality of the society's evidence. By May 11, 2015, however, the father had responded to this evidence. He denied the Facebook posting allegation and indicated he did not even know the person who was the society's source of this information. He denied touching his daughter or her friends in any inappropriate manner. He indicated that all criminal charges against him had been withdrawn on March 4, 2015 and that he had entered into a peace bond that prohibited contact or communication with the two young complainants in his sexual offence charges, as well as with one of their mothers, but that mentioned nothing about contact with his daughter. His evidence was that his daughter had expressly denied that he had touched her or her friends inappropriately, that she was not fearful of him and that she wanted to return home. He maintained that his daughter had posted her bikini clad photo on her own Facebook page, not him, and that he did not even have her password. He also produced a copy of the daughter's grade 8 school report card as of February 2015 which showed her to be an excellent student with grades in the 70's and 80's (except for mathematics) and no indication of any problem areas.
## [36] Chronology
It is important to be aware of the chronology in this proceeding. This response by the father was filed May 7, 2015, a Thursday, leaving the society little time to reply as the hearing was held the following Monday May 11, 2015. Notwithstanding the responding evidence of the father, the court made a removal order placing the child with different 'kin'.
## [37] Society's Additional Evidence
For the present motion, the society has essentially repeated its evidence from the previous temporary care and custody hearings. In addition, it has added some further evidence relating to the father's lack of co-operation with the society, its difficulty in working with him to structure paternal access visits, his behind the society's back manipulations primarily in arranging visits with his daughter, his threats to sue the society, his somewhat bizarre (from contemporary expectations) statements and behaviours, his lack of insight into himself as being a source of potential harm, and some observations by the society of things that it found either suspicious or inappropriate (female products in a bathroom ensuite to his daughter's intended bedroom in the new home he recently purchased; keeping on his wall a professional photograph of himself, his daughter and SM, one of the children he was charged with sexually interfering).
## [38] Father's Response to Additional Evidence
The father has filed a response to this evidence as well. He outlines his record of access visits which have progressed to twice weekly, of two hours duration, and at his home, but completely supervised. He maintains that he attended the society's Clinically Managed Access program which it had long wanted him to do, and that his performance there was positive. He acknowledged that he was less than co-operative; he was angry and frustrated, in fact, and highly defensive, at being unjustifiably charged with sexual offences, being entangled in the criminal justice system, and facing this child protection case simultaneously.
## [39] Father's Allegations of Fabrication
He indicates his contention that these charges and the society's involvement arose from fabrications by the child AD and her mother following his threat to report to the police and to the society that illegal drugs were being used in their home, something he discovered when his daughter was there on one occasion being babysat. He produce an abstract of text messages that he claims was a threat from either AD or her mother that if he called the police, he would lose his daughter to children's aid. He also produced a photo of what he claims is the child AD smoking a 'bong' and another of drugs he observed in her home.
## [40] Father's Preparations
He asserts that he has arranged for his daughter to attend grade 9 at a high school and to be bussed there, that he has bought clothing for her and that he has purchased a new home with a bedroom for his daughter having its own lock and its own ensuite bathroom. He repeats that his daughter wants to return to his care, that she misses him, and that she has confirmed with her OCL counsel that he has never been sexually inappropriate with her.
## [41] Child's Consistent Denial
The society's evidence confirms that the child has consistently denied sexually improper behaviour on the part of her father and maintains this position to this day, notwithstanding at least two police interviews. It is a fair inference that the society does not believe the child. The society believes the allegations of the children AD and SM to be true.
## [42] Quality of Evidence Against Father
However, there is no direct evidence in this case from either AD or SM. The entirety of their allegations as to sexually improper conduct on the part of the father is recounted by deponents of affidavits who have not themselves observed such conduct, but rather became aware of it from other sources. It is important to scrutinize the chain of the information that the society relies on as justifying a removal order at his juncture.
## [43] Chain of Information - Child AD
The ultimate source of all information about the father's conduct are the children AD and SM, both of whom were said to be under the age of fourteen. The child AD made her allegations to Chantelle Sauve, a child protection worker. There is no affidavit from Chantelle Sauve filed in this case. What is filed are affidavits from other workers, namely:
- Vivian Oystrick (at Tab 4) in which she does not even state that she obtained her information from Chantelle Sauve and clearly did not obtain it from the child AD;
- Kara Legault (at Tab 12) in which she restates some of AD's allegations but has apparently never spoken with AD herself, nor does she identify Chantelle Sauve as the source of her information.
- Nola Hulan (at Tab 19) who, like Vivian Oystrick, recounts what AD disclosed to Chantelle Sauve, but at no time states that she obtained this information from Chantelle Sauve, and clearly did not obtain it herself from AD.
## [44] AD's First-Hand Observations
What AD actually disclosed to Chantelle Sauve that was first hand was her observations of the father giving his daughter massages that went beyond the sexual norms in our society, and that the father once told her (presumably AD, not the daughter) to take off her shirt and bra for a massage, to which she complied and submitted to a massage - until she told him to stop, which he apparently did. Everything else recounted by AD to Chantelle Sauve with respect to the father's inappropriate sexual conduct was not first hand, but was information that AD acquired from the daughter, the same daughter that has maintained consistently that there was no sexual impropriety at any time. AD's only other allegation appears to have originated from SM about another incident for which AD was not present.
## [45] Chain of Information - Child SM
The father was also charged with sexual offences against SM. It is apparent that SM is the cousin of the child in this case and likely the father's niece. The society's evidence indicates that the charges involving another girl (not actually identified by name), aged 14 years, involved allegations of sexual touching of the child's breast and chest area by the father during a sleepover by the child at his home sometime in February or March 2014. This first appeared in the evidence of:
- Vivian Oystrick (at Tab 4) in which it is evident that the source of this information was the child SM with whom she had never spoken. In fact, the source of Vivian Oystrick's information is not identified by name. Her evidence is that SM made disclosures to Sudbury Police, possibly but not conclusively, to Constable Young, who, in turn, communicated information he had obtained to Carolyn Brisson, a "phone screener" presumably employed by the society.
- Nola Hulan (at Tab 19) who never states that she spoke with SM, and basically repeats almost word for word what Vivian Oystrick said in her affidavit, without ever disclosing the name of the person from whom she obtained this information.
## [46] Phone Screener Evidence
Other evidence of the society (Vivian Oystrick affidavit at Tab 4) involved another "phone screener" Julie Toffoli who spoke to a person on January 15, 2014 identifying herself as a friend of the father's family, and who was apparently the initial source of the report about the Facebook post by the father of the bikini clad child. This individual also reported that the father liked to pay girls "to do things with him" and that the daughter was fearful of her father. This same evidence indicates that Julie Toffoli was the phone screener who was contacted by the child's Vice Principal on May 6, 2014 who reported concerns about the child's absenteeism, but also recounted what several of the child's school friends (no names actually identified) had said about the father's conduct, mainly towards his daughter. Vivian Oystrick does not state that Julie Toffoli is the source of her information. She does not say how she acquired the information about the father that she includes in her affidavit. What is of greater interest, however, from an evidentiary point of view, is the fact that Julie Toffoli, who identifies herself as a society Supervisor, has her own sworn affidavit (at Tab 8) which mentions not one word about the dates of January 15, 2014 or May 6, 2015 in which she figured prominently as the society recipient of information from other sources. The inference is that the society chose to put before the court double or triple hearsay rather than single hearsay. Of further note is the lack of any information as to how the individual who made the report on January 15, 2014 knew of the facts she recounted, and how the school friends of the child knew of the factual events that they had disclosed to the Vice Principal.
## [47] Quality of Evidence After Response
It is not difficult to find that a society has met its onus on the test in s.51(3) CFSA when the only evidence is that of the society, even though that evidence is almost entirely hearsay. There is nothing to contradict. There is nothing to even question the veracity. However, once there is a response, especially a response that contradicts the hearsay allegations adduced by the society, it is incumbent on the society to come up with better quality evidence. To produce additional affidavits of others who themselves reproduce the original evidence in their own hearsay does not enhance the quality of the evidence. In other words, repeating something a thousand times does not make it any more true than it was the first time.
## [48] Society Has Not Met Its Onus
Has the society met the onus under s.51(3) at this variation motion? It has not. Its evidence is second, third or fourth hand hearsay. The circumstances in which factual information was initially communicated or relayed is almost non-existent. The details of actual paternal conduct are often sketchy and non-specific. The evidence of sexual impropriety of conduct of the father towards the daughter is denied not only by him but also by her, both of whom are able to provide first hand accounts. No charges were ever laid by police with the daughter as the victim. The charges that were laid with AD and SM as victims have been totally withdrawn by the crown. There is no evidence from either AD or SM that is first hand that contradicts what the father or the daughter say. The peace bond prohibits contact and communication with AD, SM and AD's mother but it would be too remote an inference that this prohibition was sexually related, particularly in light of the father's allegations of fabrication and his evidence of drug use in the household of AD and by AD herself.
## [49] Credibility and Trustworthiness
The evidence that may have been credible and trustworthy at a previous point in time, loses these characteristics as such evidence is challenged. I do not consider the society's present evidence either credible or trustworthy in the current prevailing circumstances.
## [50] Past Conduct Evidence
As for evidence of past conduct of the father towards any child, while this is permissible to consider, that conduct is essentially what the society has presented to the court in hearsay form and relates to AD and SM, evidence that I have found wanting. I would substantially discount the evidence of the society and reject some of it entirely. It does not meet the personal knowledge preference for evidence set out in subrule 14(18) and almost totally fails to comply with the subrule 18(19) pre-condition of identifying by name the source of the information.
## [51] Court's Satisfaction
It is not the society that need have reasonable grounds to believe that there exists a risk that the child is likely to suffer harm, and in this case, it is primarily sexual harm. It is the court that has to be satisfied of this. And the onus is on the society to satisfy the court with admissible evidence. I am not at all satisfied that this first branch of the test in s.51(3) has been met. The second branch is superfluous as the society must meet both parts of the test to justify the order it is seeking. Accordingly, the court is statutorily limited to making an order under s.51(2)(a) or (b) CFSA – a non-removal order.
## [52] Premise of Analysis
This, of course, is based on the premise that s.51(3) should be the criterion for deciding temporary care and custody variation at this point in the case.
## [53] Best Interests of the Child
However, jurisprudence suggests that best interests of the child, if not itself the only criterion, is nonetheless a criterion that the court must apply in making such decisions. Surprisingly, very little has been argued by anyone on how the best interests of the child should impact on the decision on this variation of temporary care and custody motion. If best interests are involved in making the determination in this motion, it necessarily requires the court to address its mind to section 37(3) CFSA.
## [54] Section 37(3) Considerations
In this case, almost all of these considerations weigh in favour of placing the child back in her father's care and custody, at least on a temporary basis. Her wishes, at age 14, are certainly a major factor, especially as she has OCL counsel representing her. Delay in disposition is another factor. The case is eight month old; not even the finding has been made, and it is not likely to resolve soon. The society's claim would place this child in foster care with an undisclosed family, almost certainly strangers to the child. The child and her father are regular attenders at their church but have not been able to attend together as a family for quite some time. The child is a teenager just making the transition from elementary school to high school, an important milestone in her life, and one for which the father has already made arrangements. She misses her father and appears to need his presence as her parent. Her present contact has been limited to only two three-hour visits weekly. The child has repeatedly said that she does not fear her father contrary to what the society has suggested. Her placements with 'kin' have not been successful. The disruption in the continuity of her normal home life has had adverse effects on the child. The society's plan involves at least one more disruption with a potential, based on track record, of more. The society's plan in the short term is not congruent with the best interests considerations in s.37(3) CFSA.
## [55] Risk of Harm
The only consideration in s.37(3) CFSA that might favour the society's claim is the risk that the child may suffer harm by being returned to the care of her father. For the same reasons that apply to the analysis relating to the s.51(3) test, the society's evidence does not have the quality from which can be inferred that the risk it claims actually exists. As for the degree of risk that justified the finding that the child is in need of protection, this consideration is moot as no such finding has ever been made, and perhaps never will.
## [56] Best Interests Conclusion
In summary, the best interests of the child as a factor in the criteria to be applied in determining variation of temporary care and custody does not support the society's claim in its motion. It favours return of the child to her father.
## [57] Paramount and Secondary Purposes
That is not all. The paramount purpose of the statute as set out in s.1(1) and the other or secondary purposes as set out in s.1(2) of the CFSA are always in the background as considerations in anything that takes place pursuant to Part III. This is somewhat of a repetition as promotion of best interests is stated to be the paramount purpose of the statute, along with protection and well being. I have already reviewed the best interests considerations and concluded that they favour re-uniting father and child at this point. For the same reasons, promotion of protection and well being of the child also favour this reintegration. I would add that the "other" purposes, specifically recognition of the least disruptive course of action, and of the respect for continuity of care, and for stable family relationships and desirability for early decision making all favour the return of the child to her father.
## [58] Dismissal of Society's Motion
For the reasons outline above, the claim in the motion of the society to vary the existing temporary care and custody order dated May 11, 2015 by awarding such temporary care and custody in its favour will be dismissed.
## [59] New Temporary Care and Custody Order
The court is required to make a temporary care and custody order each time that a child protection application is adjourned. For obvious reasons, I cannot order that the existing order shall continue as the present placement ends tomorrow. The order warranted by the evidence is one made under s.51(2)(b) which returns the child to the temporary care and custody of her father but subject to a supervision order in favour of the society.
## [60] Conditions
The society has prepared a list of conditions it has requested be made part of any s.51(2)(b) order. These are not contested by the father except those numbered 9, 10 and 11. There is nothing in condition numbered 10 that I see as being objectionable. Conditions numbered 9 and 11 can await inclusion if and when a finding is made that the child is in need of protection.
## [61] Interim Paternal Access
Because of temporal constraints, these reasons will also contain in what follows below, my endorsement on the motion. The society's claim for an order for interim paternal access is moot in view of my decision on temporary care and custody. I would add, however, that interim or final access determinations under Part III are only made under s.58 or s.59 CFSA and the criterion for such orders is always the best interests of the child. Moreover, the court has no statutory right to act on evidence that it considers credible and trustworthy in the circumstances in making access determinations.
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# Endorsement and Order
## [62] Motion Decision
On the motion at Tab 17, on reading the evidence filed and on hearing submissions of counsel:
**There will be an order as follows:**
1. That the claim of the society for leave to amend its Application at Tab 1 is granted.
2. That the claim of the society for variation of the temporary care and custody order of Humphrey J. dated May 11, 2015 to grant temporary care and custody to the applicant society is dismissed.
3. That the child T.H., shall be returned to the temporary care and custody of the Respondent father, J.S., subject to the supervision of the applicant Children's Aid Society of the Districts of Sudbury and Manitoulin and subject to those conditions numbered 1 to 8 and 10 in the list of Terms and Conditions filed by the applicant society on the hearing of the motion at Tab 17.
4. That the claim of the applicant society for paternal access is dismissed as it is not necessary.
## [63] Order to Go
**I am also making a further order as follows:**
1. That the Amended child protection application at Tab 15 is adjourned to September 8, 2015 at 9:30 am to set a date for hearing of the application, specifically for a hearing on the determination of whether the child is a child in need of protection pursuant to s.37(2) of the Child and Family Services Act, such date to be set by the trial co-ordinator pursuant to s.52 for the earliest date that is compatible with the just disposition of the application.
2. That the motion at Tab 18 is adjourned to September 8, 2015 to set a date for the next step on this motion.
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**Released:** August 31, 2015
**Justice John Kukurin**
minicounsel