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,
(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.
(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.
(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 No. 28/16
CITATION: Windsor-Essex Children’s Aid Society v. P. A., 2016 ONCJ 459
DATE: 2016-07-21
Ontario Court of Justice
Applicant Counsel Windsor-Essex Children’s Aid Society Helen Trentos
Respondents
P. A. Paul Mingay
M. B. Tara Gatten
K. J. In default
David Sandor, for Childrens’ Lawyer on behalf of the children
Heard: July 6, 2016
ENDORSEMENT
The Motion
The respondent mother, P. A. (the “mother”) seeks permission to move the residence of her three children to the Regional Municipality of Peel.
This request is supported by the Society and counsel for the children.
The respondent father M. B. (the “father”) does not want the court to permit the move of his child, the youngest of the three.
The decision on this motion will unavoidably affect the other children.
Facts
The Parents and Children
The mother is the mother of three children: D. A. J., born … 2002, C. S. J., born … 2005 and D. V. B.-A., born …, 2009 (“De.”).
K. J. is the biological father of D. and C.
The father is the father of De.
The mother and the father were in a relationship beginning September 2008 and separated in October 2010.
The mother and father entered into a parenting agreement on October 24, 2014 which provided that De. would live with the mother and the father on a shared parenting basis. The child resided with the mother from Friday after school until Monday morning, and with the father from Monday after school until Friday morning.
Criminal Proceedings and Society Involvement
That access arrangement continued until November, 2015 when the father was charged with forcible entry, theft under and assault. The alleged victim is the mother.
The Society started a child protection application in respect of these three children by application issued January 13, 2016.
At the return of the temporary care and custody hearing on January 19, 2016, this court made an order placing the children in the temporary care and custody of the mother subject to terms and conditions. One of the conditions is that the three children reside in the County of Essex during the course of the order and that the mother not change the residence of the children outside of the county without further order of the court.
The order also provides that the father is to have access with De. a maximum of three times per week for a maximum of three hours per visit, supervised by the Society or by a Society approved third party.
The child protection application remains outstanding. There is a summary judgment motion scheduled to address the issues of finding and disposition returnable July 28, 2016.
The mother agrees that the children are in need of protection on the basis advanced by the Society, namely; concerns about the father’s mental health and the outstanding criminal charges related to forcible entry, theft under and domestic assault.
The father disputes the Society’s claim that the children are in need of protection.
The children have been in the full time care of the mother since November 4, 2015.
Mother wants to move
The mother wants to move with all three children to Mississauga.
The father opposes the relief sought by the mother only as it pertains to De. He does not want her residence moved outside of the County of Essex.
The mother was originally from Mississauga and has resided in the Windsor area for the past seven years.
She has been unable to secure suitable employment in Windsor.
The mother has secured a good paying job in Mississauga working fulltime for her cousin cleaning houses. She would like to move there on August 1, 2016. Her plan is to stay with the cousin for a brief period of time and then secure an apartment for herself and her children.
The mother has many friends as well as family in Mississauga.
The mother does not have any family in Windsor, nor does the father. He too is from Mississauga.
The mother does not feel safe in Windsor as the father broke in to her townhome on at least one occasion. She has had to change her locks more than once. The father stole items from her home. But, the father denies that he did any of this.
There is in place at this time a non-association order whereby the father is not able to communicate or contact the mother. This has been outstanding since November 3, 2015 following the criminal charges being laid against the father.
The father does not provide any financial support to the mother for the child.
The father does not have access with the older children.
It is the mother’s evidence that the father has friends and family in Mississauga with whom he can stay so as to facilitate access.
Father wants De. to stay
The father describes that he has a close and loving bond with the child which grew while the shared custody arrangement was in place.
The father’s evidence is that “[w]e also have family that resides in Detroit…that De. knows and looks forward to spending time with.”
On April 14, 2016, the father completed a Triple P seminar series on parenting. He also attended the Raising Healthy Children program at St. Michaels Catholic School.
The father is in school full-time training to become a chef. He will be fully licenced as a chef by 2020. He cannot afford to reside in Mississauga. He undertakes volunteer work as a cook in the community.
The father’s access was stopped following the criminal proceedings. However, it resumed on March 14, 2016, and takes place on Tuesdays and Fridays from 6:00 p.m. until 8:00 p.m.
The father’s position is that the move to Mississauga would make it difficult for him to have access with De. At this time he does not have a vehicle. He also deposes that he has no funds for bus or train travel.
His evidence is that he does not have the type of relationship with his family members in Mississauga such that he would feel comfortable staying with them in order to exercise access. Access visits to Mississauga would therefore require to him incur accommodation costs as well.
Legal Considerations
- The jurisdiction of the court to change the existing temporary care and custody order is found in ss. 51(6) of the Act. This subsection is formulated as follows:
“51(6) The court may at any time vary or terminate an order made under subsection (2).”
This subsection does not set out a test or statutory criteria for the court to apply in determining whether or how to exercise its discretion to vary an order made at a temporary care and custody hearing. In particular, it does not address how to do so in the context of a relocation request.
In circumstances when a change is requested due to a change in risk case law suggests that:
(a) the first consideration for the court is to determine whether a material change in circumstances has occurred since the making of the order sought to be changed. A material change in circumstances is one that is significant and was not contemplated when the order sought to be changed was made; and
(b) if a material change in circumstances has occurred, then the court is to consider how that change affects risk to the child and what proportionate response is required to address that risk having regard to the paramount and other purposes of the Act and the child’s best interests.
The issue of a relocation request within protection proceedings was addressed by Justice Sherr in Children’s Aid Society of Toronto v. G.M. 2015 ONCJ 463, [2015] O.J. No. 4430 (ONCJ). This case dealt with a relocation request within a status review application.
The court reviewed legal principles and considerations established in custody and access relocation case as follows;
35 The parties relied on my decision of Boudreault v. Charles, [2014] O.J. No. 5779 (Ont. C.J.) 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 [footnote omitted]
[25] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, 1999 CanLII 13990 (ON SC), [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 CanLII 53670 (ON CJ), [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 CanLII 191 (SCC), [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.
- The court then considered how these principles and considerations should apply on a Status Review Application under the CFSA as follows;
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.
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.
- The court then summarized the principal considerations at para.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. [emphasis added].
- The legal principles and considerations set out in the Children’s Aid Society of Toronto v. G.M. supra. should apply in child protection applications as well as status review applications. In both types of cases;
(a) One of the purposes of the Act that a court is required to recognize is that the least disruptive course of action that is available and appropriate in a particular case to help a child should be considered. Application of this purpose must be consistent with the best interests, protection and wellbeing of the child: CFSA ss. 1(1) and (2)¶2.
(b) A decision on access is to be made in a child’s best interests: CFSA ss. 58(1)(a); and
(c) The best interest considerations to be considered are found in CFSA ss. 37(3). One aspect of the best interest considerations emphasizes the importance of a child having a relationship with a parent and a secure place as a member of a family.
- I would add that on a request for a temporary order allowing for a parent to move with a child in a child protection case the proponent of the move must address a plan for the left behind or non-relocating parent. This plan must be contextual in that it is to consider the relationship between the child and that parent. It must also detail viable access for the non-relocating parent.
Application of Legal principles
Despite having the support of the Society and the Children’s Lawyer, I find that the mother has not met her onus in demonstrating that an order under ss. 51(6) allowing the mother to move the residence of De. to Mississauga is a proper one.
The mother has not demonstrated that there are compelling circumstances justifying the move before a hearing.
There exists an issue raised by the father to be determined at a hearing, that is, whether the children are in need of protection. The summary judgment motion will be such a hearing.
The economic reasons for the move raised by the mother have been outstanding for some time now. They do not adequately explain why a move is needed before a hearing. The evidence of the mother does not suggest that the job being offered to her is open for acceptance only within a brief window of time. Further, the family support which the mother expects to accept in Mississauga is not time-limited.
The mother’s safety concerns have been and continue to be addressed by the prohibitions in place within the criminal proceedings, preventing the father from associating with the mother.
In short, the evidence does not address what is so compelling about being able to move before a hearing which is scheduled very shortly.
Another concern with respect to the mother’s plan is that it does not sufficiently address how the father would be able to maintain access with the child. She has not taken into account his financial circumstances.
The Children’s Lawyer submitted that access could take place on certain weekends, alternating between Windsor and Mississauga. He submits that the parents need to take the necessary steps to make this happen. While I agree that they should make this effort, the evidence before the court is that both parties have constrained financial circumstances making travelling to allow for access difficult. The distance between Windsor and Mississauga is great when neither party has easy access to affordable transportation and accommodation.
The issue of relocation is better left to the summary judgment motion that is scheduled to be heard shortly.
For these reasons the mother’s motion seeking permission to move the residence of the children prior to a hearing is dismissed.
Justice Barry Tobin
Date released: July 21, 2016