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 48(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.

ONTARIO COURT OF JUSTICE

DATE: 2016·07·26

COURT FILE No.: 13251/15

CITATION: Catholic Children’s Aid Society v. F.Y.I., 2016 ONCJ 463

BETWEEN:

THE CATHOLIC CHILDREN’S AID SOCIETY

Applicant,

— and —

F.Y.I. and W.I.A.

Respondent parents

Before Justice Sheilagh O’Connell

Heard on June 8, 2016

Decision released on July 26, 2016

Chris Andrikakis ............................................................ counsel for the applicant society

Gesta J. Abols ................................................. counsel for the respondent mother, F. Y. I.

Barry Nussbaum .............................................. counsel for the respondent father W. I. A.

O’CONNELL J.:

Part One- Introduction:

[1] The respondent F.Y.I. (“the mother”) seeks an order that the child of this protection application, Y. H., almost 3 years old, be placed in her temporary care and custody, subject to the supervision of the Catholic Children’s Aid Society (“the society”).

[2] The society supports the order being sought however it is not opposed to the current temporary ‘without prejudice’ order continuing, in which the child was placed in the temporary care and custody of the paternal grandparents, subject to society supervision, following the apprehension of the child.

[3] The respondent W.I.A. (“the father”) opposes the motion and seeks an order that the children remain in the temporary care and custody of the paternal grandparents, subject to society supervision.

[4] The child was apprehended on September 14, 2015 and placed in society care on a temporary without prejudice basis. Following an assessment, the child was placed in the paternal grandparents’ care on a temporary without prejudice basis.

Part Two- The Issues:

[5] The issues at this stage in the protection hearing are the following:

a. Is this an originating temporary care and custody motion or a motion to vary an existing temporary order?

b. If this is not an originating temporary care and custody motion, and instead, this is a variation of an existing temporary order, then has the mother established that there has been a material change in circumstances affecting the child’s best interests since the making of the last order which justifies making the requested change being sought?

c. If this is an originating temporary care and custody motion, then who had charge of the child immediately prior to society intervention and the apprehension of the child under Part III of the Act?

d. Once the court determines who had charge of the child immediately prior to society intervention, what temporary order should the court make?

[6] Although these may appear to be overly technical issues, the legal distinctions are very important as different legal tests apply to an originating temporary care and custody motion and a motion to vary a temporary order under the Child and Family Services Act (“the Act”). The determination of which legal test applies will have very significant ramifications for the parties involved in this child protection case.

Part Three- The Position of the Parties:

[7] The mother and the society submit that this is an originating temporary care and custody hearing under subsection 51 (2) of the Act, and as such, it has yet to be determined by the court.

[8] The legal considerations on a temporary care and custody motion are set out under subsections 51 (2), (3), (3.1) and (3.2) of the Act. Section 51 (3) sets out the test that a court must apply at an originating temporary care and custody motion.

[9] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there is a real possibility that if the child is returned to the parent or person having charge of the child, it is more probable than not that the child will suffer harm and that the child cannot be adequately protected by terms of an interim supervision order.

[10] The mother further submits that the society has not discharged its burden and the child must be returned to her as she was the only person who had charge of the child immediately prior to society intervention.

[11] The society concedes that with the benefit of further information regarding the mother’s circumstances, the child could be returned to her care under society supervision. The society agrees with the mother that she had charge of the child prior to society intervention, and thus, she receives the benefit of the test to be applied under section 51(3) of the Act. Alternatively, the society submits that both the mother and the father had charge of the child prior to intervention, but the society supports the mother’s plan of care.

[12] The father submits that the temporary care and custody hearing has already been disposed of, or alternatively, due to the lapse of time since the “without prejudice” temporary custody order then the current “without prejudice” temporary order should now be treated as a “with prejudice order”. As such, the legal test to change an existing temporary order is set out under subsection 51(6) of the Act.

[13] If the father is correct, then the onus or burden of proof shifts to the mother from the society to establish, on credible and trustworthy evidence, that there has been a material change in circumstances relating to the child’s best interests that justifies a change in the existing status quo. This burden on the mother is a high legal threshold.

[14] The father submits that the mother has not met this burden and that it is in the child’s best interests to remain with the grandparents, and to preserve the status quo pending the final outcome of this child protection hearing.

[15] Alternatively, the father submits that if the court determines that this is an originating temporary care and custody hearing, then both the parents and grandparents had charge of the child prior to the society’s intervention. If the court determines that the society has not discharged its burden, then the child should be returned to the father and the grandparents subject to society supervision.

Part Four-Evidence and Materials Filed:

[16] In order to determine these issues, the history and facts of this case must be examined. In making my determination, I considered the following evidence:

a. Affidavit of society worker Marta Campos, sworn September 18, 2015;

b. Affidavit of society worker Cindy Lee, sworn December 2, 2015;

c. Affidavit of kinship assessment worker Wende Wehby, sworn December 2, 2015;

d. Responding Affidavit of mother sworn December 7, 2015 and CAMH psychiatric report and assessment of mother attached;

e. Responding Affidavit of father sworn December 31, 2015;

f. Supplementary Affidavits (2) of mother, both sworn March 2, 2016;

g. Supplementary Affidavit of father, sworn March 3, 2016;

h. Updating Affidavit of society worker Aileen Raquel, sworn May 12, 2016;

i. Affidavit of father sworn June 3, 2016;

j. Answers and plans of care filed by both parents.

Part Five- Background Facts:

[17] The mother is eighteen years old and the father is twenty-five years old. The mother is a permanent resident of Canada, having arrived from Colombia with her family as a young girl. She is currently completing high school. The father is a college student from Saudi Arabia, living in Canada on a student visa. He is attending an automotive training centre program. The father is currently in the process of applying for permanent resident status.

[18] The parents met at a party when the mother was fifteen years old and the father was twenty-two years old. The parties started dating and the mother became pregnant. The child, Y. A.H. was born on […], 2013, when the mother was sixteen years old. The child is almost three years old.

[19] The paternal grandparents, ages 54 and 55 respectively, were born and raised in Saudi Arabia and are Saudi citizens. They came to Canada in 2013 and were traveling back and forth between Canada and Saudi Arabia. They met the mother and child on their second visit to Canada when the child was approximately 10 months old. They are currently living in Canada on a visitor’s visa. Their visa is valid until approximately 2018. They have applied for permanent residency status in Canada and their application is pending. They are both retired and are receiving pensions from Saudi Arabia.

[20] The society became involved when the hospital where the mother gave birth contacted them to advise that the mother was a minor parent and the father was twenty-three years old. There did not appear to be any issues regarding the parents’ relationship at that time, and the appropriate referrals were made. The society remained involved on a voluntary basis however the file was closed in January of 2015.

[21] Prior to the child being brought into care, she was residing with the father and the mother in the paternal brother’s apartment in Toronto. The paternal grandparents were visiting at the time and were also living in the apartment, along with the paternal aunt.

[22] On September 14, 2015, the society became re-involved after receiving a referral from the Children’s Aid Society of Toronto (CAST) regarding the mother[^1]. On September 11, 2015, the police had arrested the mother under the Mental Health Act as she had attempted to jump off the balcony of the family home and was expressing suicidal thoughts. The police found her with a kitchen knife under her scarf and she admitted that she was going to commit suicide.

[23] The mother was taken to the Centre for Mental Health and Addiction (CAMH) where she was admitted on September 11, 2015. The mother was discharged later that day to her mother’s home. No medication was prescribed, but she was referred to a psychiatrist at the CAMH Crisis Clinic for future therapy sessions.

[24] On that day, the police had no concerns about the care of the child or the family home environment. The father agreed that the mother would not be allowed back into the home until a children’s aid society worker could assess the situation given the concerns about the mother’s mental health.

[25] However, on September 14, 2015, the child’s father, who had been caring for the child after the mother was admitted to CAMH, was arrested earlier that day on outstanding drug related criminal charges. Police officers apprehended the child due to concerns related to both parents not being able to care for the child. The child was transferred to the care of the society.

[26] The society made the decision to apprehend the child because it believed that there was a risk that the child is likely to suffer harm in the parent’s care at that time due to the following:

a. the child’s mother attempted to commit suicide and she was following up with service providers to address this issue;

b. the child’s father was arrested for outstanding warrants with respect to marijuana and cocaine related criminal charges;

c. there had been domestic altercations between the parents which the paternal grandparents or in family members appear to have condoned or at least did not prevent the domestic abuse from occurring within the family home. On some occasions, the child had been present during these incidents;

d. the mother reported being fearful of the father’s violence towards her and felt that she could not escape from the relationship or leave the family home with her daughter.

[27] On September 15, 2015, the mother met with the society worker and advised the following:

a. She met the father at a party when she was 15 years old. They started dating and she became pregnant. Initially the father was very nice to her and there were no concerns. When she moved into the father’s apartment, the relationship slowly deteriorated and the father became physically aggressive and controlling.

b. She and the father have had arguments due to their cultural differences and different expectations between her and his family. The paternal family members did not interfere when the father has been violent with her.

c. She tried to jump off the balcony on Friday, September 11, 2015 because she felt trapped and desperate. She acted on an impulse and she was happy that she did not succeed. She did not know why she grabbed a knife in the kitchen.

d. The child’s father, the paternal grandparents, and the paternal aunt, were present in the apartment and intervened in the situation. The child was in the home, but not with her when the mother went to the balcony;

e. Before she tried to jump, she had a verbal altercation with the father. According to the mother, the paternal grandfather told her, “you are not leaving today, you are not leaving tomorrow, you are not leaving never.” She felt helpless and afraid. The father then contacted the police. He told her to go somewhere else if she wanted to kill herself.

f. The mother stated that she is happy that the child is in society’s care. She does not want the child to be cared for by the paternal grandparents as she is concerned that the father will not let her have the child again.

g. The mother stated that she wanted to leave the father for a number of months, but the father and his family opposed her decision to leave.

h. The mother described the father as being violent, abusive and controlling towards her. She told society workers that when the father gets mad or angry with her, he would slap, kick or grab her by the hair. She tried to protect the child during outbursts when the child was present. The child has never been physically hurt during these altercations.

i. The mother stated that the father has never been violent towards the child. The mother admitted to biting the father in self-defence on the day that she attempted to jump off the balcony. She said that the father had slapped her and pulled her hair.

j. The mother stated that she does not wish to reconcile with the father and that she was prepared to cooperate with the society in order to have the child returned to her care.

[28] The father reported the following to the society worker:

a. The father denied being violent towards the mother. When the mother got upset or angry she would become physically violent. The mother broke things in the home, she pushed, hit and bit him. He also described their relationship as volatile.

b. He and the mother had a verbal argument on the day she tried to jump off the balcony. Their argument escalated as the mother became agitated quite quickly.

c. The mother wanted to move out of the home. She wanted to get an apartment for herself and the child and live with her sister. The argument started because the mother wanted the child’s birth certificate and he refused to give it to her. He was afraid that she was going to apply for the child tax benefits and use the money to help her sister. The mother became very agitated. They continued arguing and the paternal grandmother intervened to try to de-escalate the situation. The paternal grandfather also tried to convince the mother to calm down before leaving the house with the child. The mother was yelling that she did not want to be alive and that she did not want to stay there anymore.

d. The father told the mother to go to her mother’s home which she believed her to have misinterpreted as meaning that he did not want her living at his home anymore. Suddenly the mother screamed very loudly and ran to the balcony wanting to jump off. She left the child on the floor in the living room when she ran to the balcony. The paternal grandfather held the mother by the shirt and tried to push her back inside.

e. The mother then left the apartment twice. The first time she had the child with her. The second time she returned grabbed a knife and left again. By that time, the father had called the police.

f. The mother told him that she was going to decide if she wanted to live with him again after spending a year with the child. The father was afraid that he was not going to see the child or have much contact with her. The mother had threatened him several times that she would not allow him to see the child again.

g. The mother could behave in erratic ways. In the past she obtained a copy of his school schedule and kept track of his whereabouts. The mother threatened to accuse him of assault. Everyone would believe her. She had status in Canada and no one would believe an Arab man.

h. The father acknowledged that the mother had arranged for herself and the child to stay with a maternal aunt in St. Catherine’s towards the end of 2014. The mother and the child lived there for approximately three months. According to the father, when he visited the child in St. Catherine’s, he observed bruises on her.

i. He never saw the mother hurting the child in any way. However, when she was upset and breaking things, there was a risk that the child could get hurt.

j. His mother cared for the child during the day as the mother used to spend the days in her room and he was at school.

[29] On or about September 20, 2015, the father was charged with assault against the mother. He attended the police station with his lawyer and was arrested and eventually released with bail conditions that included a no contact order with respect to the mother.

[30] After the apprehension, the parents were exercising access consistently on Tuesdays and Thursdays. The father and the grandparents came for the first part of the access visit from 10 AM to 11:30 AM at the society offices, semi-supervised, and the mother and her sister came for the second half of the access visits from 11:30 to 1:00 PM, initially fully supervised, however as there had been no concerns during the access visits, the visits were also changed to semi-supervised.

[31] According to the society evidence, the visits with the mother and father and extended family members were positive. The child seemed very connected and comfortable with both sides of the family. However, the society workers observed that the child was very attached to the mother and continued to get very emotional at the end of her visit, despite the mother trying her best to calm and to prepare her for the visit’s end.

[32] On November 18, 2015, following an assessment, the paternal grandparents were approved as kin caregivers for the child. On December 2, 2015, following a motion that was not on consent, the child was placed, on a without prejudice basis, in the temporary care and custody of the paternal grandparents, subject to the supervision of the society and with access to the parents. The father was living with the paternal grandparents at this time.

[33] During the kin assessment, the grandparents reported the following to the society:

a. The paternal grandparent stated that they treated the mother as a daughter. They did not know that their son was in a relationship because they were in Saudi Arabia when he became involved with the mother. They initially wanted their son to marry a Saudi Arabian woman but after meeting the mother, they accepted the relationship. Their son was happy and the child had been born.

b. They stated that the mother had an excellent relationship with the entire family until things started to change last year.

c. They were aware of the ongoing problems between their son and the mother over the past year. They recognize that the mother was very unhappy but stated that she did not confide in them as to why she was so unhappy;

d. The mother’s behavior was unpredictable. When she was angry, she would yell and become physically aggressive, push and break things in the home.

e. They describe the parents as having good days and bad days together. They used to argue and there were physical altercations between them.

f. The paternal grandmother was very involved in the child’s day-to-day care, but it was a mother who took her to the doctor.

g. Sometimes the mother would spend days in her bedroom and the paternal grandmother cared for the child.

h. The incident that led to the society’s involvement started because the mother had demanded the child’s birth certificate and then she had taken the father’s school backpack. She wanted to leave the house and was very agitated. The parents started arguing and there was pushing and shoving between them. The paternal grandmother tried to separate them. However, all the sudden the mother threw the father’s backpack and ran to the balcony. She left the child who crying on the floor.

i. The paternal grandparents never saw the mother maltreating the child however they said that the mother relied upon them for the child’s day-to-day care.

j. The grandparents are committed to present a permanent plan for the child, however they understand that the mother is also presenting a plan and they are prepared to work with the decisions that are made by the society and by the court.

k. They will always be respectful of the cultural and religious differences between the mother and their family. They practice the Muslim faith and they recognize that the mother practices the Catholic faith. They are not against the child learning this religion and they also wish to teach the child the Muslim faith. They will support the child in her decision as she gets older.

l. The grandparents decided to apply for permanent residency in Canada because they wish to remain involved in their children’s life and to provide care for their grandchildren.

m. Although they have not been granted permanent resident status in Canada, they remain hopeful that their application will be accepted. They are very attached to their grandchild and will ensure that access visits between the mother and the child are maintained.

[34] Following the placement of the child in the temporary without prejudice care of the grandparents, a number of difficulties arose in facilitating access between the mother and the child. Several visits were canceled. Although the child was doing very well in the care of the paternal grandparents, the society remained concerned with the family’s inability to facilitate access between the mother and the child. This was having an impact on the child’s emotional well-being as the child was not able to see her mother on a consistent basis.

[35] The society reported that the mother has made positive gains in her mental health and stability following the apprehension of the child. The mother completed a mental health and psychiatric assessment at CAMH. According to the assessment report filed, the mother did not meet the criteria for any psychiatric diagnosis. The suicidal ideation she expressed was the result of a situational crisis in the context of a highly problematic relationship. The suicidal ideation does not persist. The mother had no identifiable psychiatric disorder. No medication or pharmacological interventions were required. Supportive counseling and supportive resources were recommended. There was no imminent risk of harm to the mother, her daughter or another child or to the father.

[36] The mother has followed up and successfully completed counseling. She obtained appropriate and stable housing. The mother was referred to Rosalie Hall for the completion of her high school diploma. According to the society’s evidence, the mother is participating with a number of supportive services to Rosalie Hall including the parenting group, a leadership group, a counselor, and a parenting group.

[37] The mother is doing exceptionally well in her program. She has excelled academically and presents as a mature young woman who is open to individual counseling, enhancing her enhancing her parenting and developing positive peer relationships. She is consistently attending counseling, actively participating in her high school program, and attending a parenting group as well as a leadership group.

[38] On January 12, 2016, the mother started to have unsupervised home access visits with the child. The mother was well prepared for her access visits, having age-appropriate toys, a tidy home and safe environment as well as a toddler bed set up and ready for the child to rest. There were working smoke and carbon monoxide detectors. The mother and the child were quite excited to spend time with each other at home. The society observed a strong bond between the mother and the child.

[39] The mother has been cooperative throughout with the society and has followed through on all recommendations. She presents as motivated to resume caring for her child. The society supports a return of the child to the mother.

[40] On June 8, 2016, the temporary care and custody hearing was argued.

Part Six-The Law and Analysis:

6.1 Is this an originating temporary care and custody motion or a motion to change?

[41] The father submits that due to the lapse of time, the without prejudice order placing the child in the care of the kin paternal grandparents should be treated as a with prejudice order. As such, this hearing should be treated as a motion to change an existing temporary order under subsection 51 (6) of the Act and not as an originating temporary custody or in custody hearing under subsection 51 (2) of the Act.

[42] The society and the mother do not support this position and submit that this is an originating temporary care and custody hearing under subsection 51 (2) of the Act.

[43] As indicated earlier in these reasons, the distinction is important because different legal tests apply to the two types of motions. If the father is correct and the temporary order is no longer “without prejudice”, then the onus shifts from the society to the mother to demonstrate on credible and trustworthy evidence, that there has been a material change in circumstances relating to the child’s best interests that justifies a change in the existing status quo.

[44] In Catholic Children’s Aid Society of Toronto v. W. I. and D.T. 2014 ONCJ 62, [2014] O.J. No. 620, Justice Stanley Sherr reviews the law on this point at paragraphs 24 to 26 of his decision and states the following:

“24 Some courts have commented that without prejudice orders do not continue indefinitely. In Children's Aid Society of Toronto v. K.N. 2008 ONCJ 340, [2008] O.J. No. 3074 (Ont. C.J.), Justice Brian Weagant wrote at paragraph14:

‘I do not agree with the proposition that an order made "without prejudice" can bind the court prospectively and indefinitely on the issue of who has "charge" of the child. In my respectful view, notwithstanding a prior "with prejudice" order, once an intervening "without prejudice" order is made placing the child elsewhere, the presumption described above has a dwindling shelf life.’

25 Although Justice Weagant found it unnecessary to apply his reasoning in the case before him, he implied that three to six months might be sufficient to displace legal charge of the child from the mother to the society. This decision was followed in Children's Aid Society of Ottawa v. J.M. 2010 ONSC 7119, [2010] O.J. No. 5646 (Ont. S.C.J.) where the court considered the lapse of 8 months from the date of the without prejudice order to be a relevant factor in assessing placement.

26 The facts of each case need to be carefully examined to determine if the "shelf life" of a without prejudice order has run out. Such a determination has significant ramifications for child protection litigants. The test in subsection 51 (2) is designed to set up a rigorous standard for society intervention in the life of a person who has charge of a child. Once this test has been met, and an order placing the child elsewhere has been made, the onus shifts to that person to show, in a subsequent motion brought pursuant to subsection 51 (6) of the Act, to demonstrate a sufficient change in circumstances that justifies returning a child to his or her care.[^2] The court does not and should not lightly eliminate the subsection 51 (2) rights of the person who had charge of the child.”

[45] In the case before Justice Sherr, the temporary care and custody hearing was argued approximately six months after the temporary “without prejudice” order was made placing the children in the care of the father after the mother suffered a mental breakdown. Further, the children has actually been in the care of the father two months previous to the motion as the society advised the mother that if she did not leave the children in the father’s care then they would intervene and seek a court order. Notwithstanding the eight month delay, Justice Sherr found in the circumstances before him that the without prejudice nature of the existing order had not lapsed, and as such the legal test that must be applied is set out under subsection 51 (3) of the Act.

[46] In the case before me, the temporary “without prejudice” order placing the child with the paternal grandparents was made on December 9, 2015, three months prior to the temporary care and custody hearing being first argued on March 6, 2016. The original temporary “without prejudice” order placing the child on the society’s care following apprehension was made on September 18, 2015, approximately six months prior to the argument of the temporary care and custody hearing on March 5, 2016.

[47] I agree with the society and the mother that it is appropriate to treat this hearing as an originating temporary care and custody hearing for the following reasons.

[48] The first court appearance in this matter was September 18, 2015, four days after the apprehension. The parents were each represented by duty counsel at that hearing. It was adjourned on consent for a period of four weeks to permit the parents to retain counsel and to serve and file responding materials. It was necessary for the mother to apply for legal aid certificate and find a legal aid counsel to represent her, which can often take six weeks if not more time.

[49] At the return of the matter on October 19, 2015, four weeks later, the matter was adjourned again as the parents had yet to retain counsel and serve responding materials.

[50] On the next return date of December 9, 2015, the mother had retained counsel. She had prepared and served her answer and plan of care and responding affidavit material. At that hearing, the society also brought the motion to place a child in the paternal grandparents care. These materials were served just six days before the motion, according to the affidavit of service filed. The mother continued to seek the return of the child to her care.

[51] The temporary care and custody hearing was scheduled for January 6, 2016. According to the endorsement of the case management judge at the time, the matter was set for sixty minutes. On January 6, 2016, the temporary care and custody hearing was adjourned to March 6, 2016 because the mother’s counsel needed further time to prepare supplementary and responding materials in response to the society’s and the father’s motion materials.

[52] On March 6, 2016, the temporary care and custody hearing was argued. The hearing lasted for approximately sixty minutes. At that time, the society was not supporting the return of the child to the mother and required further investigation and assessment of the mother’s plan.

[53] After hearing submissions, rather than disposing of the motion at that time, the court delivered oral reasons and decided to adjourn the temporary care and custody hearing while substantially increasing the child’s access to the mother, with a view to a gradual reintegration of the child into the mother’s home, pending the assessment of the expanded access.

[54] The court ordered that the mother be granted unsupervised access every Sunday from 10 AM to 7 PM at the mother’s home, in addition to the Tuesday and Thursday access from 2:30 PM to 6:30 PM, also exercised by the mother in her home. The society and parties were directed to provide updating affidavit material regarding the expanded access upon the return of the temporary care and custody hearing on May 3, 2016.

[55] Unfortunately, the motion did not proceed on May 3, 2016 for a number of reasons, but through no fault of the mother. The society had not provided an updating affidavit setting out its position after monitoring the mother’s access. The society indicated that it had no concerns about the mother’s housing and that it was consenting to expanding the mother’s access to overnight access. The father was vigorously opposed to the mother having overnight access. Both the society and the father wished to file updating affidavit materials so the hearing was adjourned to June 8, 2016 following a time-frame for the service and filing of updating materials.

[56] By June 8, 2016, at the return of the temporary care and custody hearing, the society was now supporting the mother’s plan although also not opposed to the child remaining with the paternal grandparents. The society filed an updating affidavit setting out the significant progress of the mother and that indicating that it had no concerns with the mother’s care of the child.

[57] At no time did the mother waive her right to a temporary care and custody hearing, nor did she relinquish the rights afforded to her under subsections 51(2) of the Act. She vigorously pursued her right to a temporary care and custody hearing. Indeed, the motion for temporary care and custody was in fact heard and argued on March 3, 2016. It was only at the court’s direction to adjourn the disposition of the hearing after granting significantly expanded unsupervised access to the mother with a view to a reintegration of the child into her care should the access go well.

[58] There was no evidence that the mother unreasonably delayed the matter from being heard. I agree with Justice Sherr that the test in subsection 51 (2) is designed to set up a rigorous standard for society intervention in the life of a person who has charge of a child. The court does not and should not lightly eliminate the subsection 51 (2) rights of the person who may have had charge of the child[^2].

[59] Therefore, the without prejudice nature of the existing order has not lapsed.

6.2 The statutory framework and legal test on a temporary care and custody hearing:

[60] As indicated, temporary care and custody hearings are determined in accordance with subsections 51 (2), (3), (3.1) and (3.2) of the Child and Family Services Act, R.S.O 1990, c. C.11, (“the Act”) which read as follows:

Custody during adjournment

51(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

(i) a place of secure custody as defined in Part IV (Youth Justice), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

Criteria

(3) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b). [Emphasis added]

Placement with relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

Terms and conditions in order

(3.2) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

[61] The onus is on the society at a temporary care and custody hearing to establish on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if the children are returned to a parent or parents, it is more probable than not that the children will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms or conditions of an interim supervision order. See: Children's Aid Society of Ottawa- Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.).

[62] Simply stated, this is a two part test that the society must meet.[^3] If the society fails to discharge this burden, then the child is returned to the person immediately having care or charge of the child prior to intervention, with or without terms of supervision.

[63] The legislative scheme provides that pending the child protection hearing, the court must make an order that is the least disruptive or intrusive order consistent with adequate protection of the child (subsection 1 (2) of the Act). See: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.

[64] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. See: Catholic Children’s Aid Society of Toronto v. J.O.1, 2012 ONCJ 269.

[65] Subsection 51 (7) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Family and Children's Service v. R.O., 2006 O.J. No. 969 (Ont. C.J.).

6.3: Who had charge of the children prior to society intervention?

[66] The person or persons who had “charge” of the child before the intervention of the society gets the benefit of the legal test that the society must meet under section 51 (3) of the Act. In other words, the Act gives priority to the person or persons who had charge of the child prior to apprehension.

[67] The term “charge” is not defined in the Act. A number of cases have held that the person who "had charge of the child immediately before" apprehension is not necessarily the person who had physical care of the child at the moment of apprehension, or even necessarily the person named in a custody order.

[68] There can be more than one person in charge of the children. See: Children's Aid Society of Toronto v. A.(S.) and R. (M.) 2008 ONCJ 348 (OCJ).

[69] Where custodial arrangements before the apprehension are unclear, the courts will attempt to ascertain if there is an individual who has been the child's primary caregiver for a significant period of time prior to apprehension, and may find that that individual is the person who "had charge of the child immediately before" apprehension. See Children's Aid Society of Algoma v. Teena G. et al. (2002), 2002 CanLII 52569 (ON CJ), 125 A.C.W.S. (3rd) 1020 (Ont. C.J.); Children’s Aid Society of London and Middlesex v. S.D., 2008 CanLII 49155 (ON SC), [2008] O.J. No. 3796.

[70] In Children’s Aid Society v. Middlesex v. S.D. 2008 CanLII 49155 (ON SC), [2008] O.J. No. 3796, Justice R. J. Harper reviews the case law related to who has charge of the child as follows:

“22 The structure of s. 51(2) (a) and (b) directs the court to return a child to the "care and custody of the person who had charge of the child immediately before intervention" without supervision or with supervision and terms and conditions. The court cannot keep the child in the care of the Society "unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b)." [my emphasis]

23 The term "charge" is not defined in the CFSA. It has been interpreted in at least three cases. In Children's Aid Society of Algoma v. Teena G. et al. (2002), 2002 CanLII 52569 (ON CJ), 125 A.C.W.S. (3rd) 1020 (Ont. C.J.), Kukurin J. considered the definition of "charge." He made the following comment at para. 15: "... 'Charge' has connotation of authority and responsibility. 'Charge' of a child suggests some established relationship, not something transient or temporary. ..."

24 Kukurin J. did not think that simply having possession of a child was sufficient to bring that person within the meaning of the term "charge".

25 In Children's Aid Society of Ottawa v. H.C. and C.C. (2003), 2003 CanLII 38754 (ON SC), 127 A.C.W.S. (3d) 1159 (Ont. Sup. Ct.), Blishen J. also considered the meaning of the term "charge" in s. 51. Blishen J. found that "charge" was linked to the term "care and custody" within s. 51:

[14] In order to apply the appropriate test on this care and custody motion, it is necessary to determine who was "the person who had charge of the child immediately before intervention". The word "charge" is not defined under the Child and Family Services Act. However, a close reading of the legislation makes it clear that the term "charge" is linked to the term "care and custody" as outlined in clauses 51(2)(a) and (b), which state that the child

... remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention.

26 Blishen J. stated that questioning who had "charge" of the child is akin to questioning who had "care and custody." Like Kukurin J., Blishen J. was of the opinion that there had to be an active relationship of care and not mere possession of the child.

27 Most recently, in Children's Aid Society of Toronto v. S.A., 2008 ONCJ 348, [2008] O.J. No. 3110 (Ont. C.J.), Spence J. considered the same issue. In that case, Spence J. splits the idea of "charge" and "custody." He adopts a definition of "charge" that is grounded in actively caring for the child and potentially distinct from the legal notion of "custody." Spence J. ultimately determines "charge" to mean an active, caring relationship. He states:

[48] However, clause 51(2) (a) of the Child and Family Services Act does not talk about returning the child to the person who had "custody" but rather, returning the child to the person who had "charge" of the child. There clearly is a difference between the meaning of "custody" and "charge". There could be many instances where one person has custody of the child and another person has "charge" of that child.

28 Spence J. gives an example of his reasoning to demonstrate the difference. He describes a situation whereby a single mother, who has custody and charge of a child, informally relinquishes that child to an aunt for care purposes. After several months in the aunt's care, for example, the child would no longer be in the mother's "charge" but rather the aunt's. Spence J. was of the view that for a person to have "charge" of a child there must be evidence of active care and responsibility.

29 I agree with the reasoning of Spence J. I am of the view that there must be evidence that a person has an active relationship with the child that includes care and responsibility. It is something more than physical possession or limited incidents of care.

30 I am of the view that s. 51 is structured in the manner that it is because the statute establishes a priority to the person who may have had the most active and responsible involvement with the child immediately before the apprehension.

31 If the court determines that the evidence discloses that there is a person who had the charge of the child immediately before intervention, then the court must return the child to that person unless there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order that provides for a return on terms (s. 51(3)).

32 It is possible that more than one person had the charge of the child immediately before intervention and they subsequently compete for the return of the child to them at a temporary care hearing. In that case the court must consider the risk of harm of returning the child to either person.” [paragraphs 22 to 32]

[71] In carefully reviewing the history and evidence in this case, I find that both the mother and the father had charge of the child immediately prior to the child’s apprehension, although the mother was the primary caregiver. I do not find that the grandparents had charge of the child at the time of the apprehension, although they were involved in the care of the child. In making this determination, I consider the following evidence:

a. Immediately after the birth of the child, the mother and child lived with her mother, the maternal grandmother, for a period of forty days. It is not disputed that the child had limited contact with the father during that time.

b. The mother and child then moved into the father’s home but returned to her mother’s home in September 2013. Again, while the mother and child were living with the maternal grandmother, the father’s contact with the child was limited;

c. In November 2013, the mother and child moved into the father’s and paternal sister’s apartment when the child was approximately four or five months old. (The father actually disputes this and states in his affidavit that he and the mother did not live with his sister until the child was eight months old.)

d. During this time, the grandparents were traveling back and forth between Canada and Saudi Arabia. They met the mother and the child on their second visit to Canada when the child was approximately ten months old;

e. The mother and father started living with the grandparents and paternal sister in the spring of 2014, when the child was approximately ten months old. However in November 2014, with the consent of the father, the mother and child left the paternal family home and moved into her sister’s home in St. Catherine’s, Ontario, where she stayed for a period of approximately three to four months. The father visited the mother and the child in St. Catherine’s periodically during this time. There is also evidence that the grandparents returned to Saudi Arabia for a period of time in 2014 to attend a family wedding;

f. The mother and child returned to the father and paternal grandparents’ home in April of 2015. At that time, the grandparents were returning from Saudi Arabia after a family wedding. According to the affidavit of the society sworn December 2, 2015, prior to the child’s apprehension, the mother and child were residing with the father and the paternal grandparents and sister for approximately four to five months at that time.

[72] It is clear that since the child’s birth up until the child’s apprehension the child, the mother has been the primary caregiver for the child since the child’s birth. In addition to the periods of time where the mother and child were residing at the maternal grandmother’s home and at her sister’s home in St. Catherine’s, when the parties were actually living together, the father was enrolled in school and away from the home during the day while the mother was at home all day with the child. The mother denies that she left the primary care of the child to the grandmother during the day. The society has observed a strong bond between the mother and child that contradicts this assertion and neither grandparent has filed any evidence to support or corroborate this position.

[73] Although the paternal grandparents, to their credit, provided assistance to the parents while they were in Canada and living together, they did not assume the primary parental role and responsibility for the child. Although they acted as caring grandparents, they were not persons who had care and control or “charge” of the child, for the following reasons:

a. It is not disputed that the paternal grandparents citizens of Saudi Arabia and they have visitor’s status in Canada, although they have applied for permanent residency. They were traveling back and forth between Canada and Saudi Arabia after the birth of the child. They did not meet the child or the mother until their second visit to Canada when the child was approximately ten months old.

b. There is no evidence that the grandparents made any decisions about the child’s care or exercised any parental authority over the child. There is evidence that the grandparents left those decisions to the parents. The maternal grandmother certainly assisted the mother; however she advised the society worker that the mother took the child to her doctor’s appointments alone.

c. The grandparents did not object nor were they involved when the mother and the child left the paternal family home in November of 2014 and moved to St. Catherine’s, Ontario for a period of approximately four months. The grandparents travelled back to Saudi Arabia in 2015 for a family wedding.

d. When the child was apprehended from the parents and placed in the society care, the grandparents did not seek to be added as parties in these proceedings. They did not file an answer or plan of care nor did they file any affidavit material setting out their role in the care and control of the child. They have not filed any evidence in this proceeding.

e. The grandparents were assessed as kin and they did not assume care of the child until a kin assessment was undertaken approximately three months after the child was apprehended from the parents care.

[74] However, it is not disputed that the both parents were living together as a couple at the time of the apprehension and that the father was involved in caring for and making decisions regarding the child during the parents’ cohabitation. I find that both parents had charge of the child and therefore both get the benefit of the legal test that the society must meet under section 51 (3) of the Act.

6.4 The Application of the Legal Test under section 51 (3)

[75] Having found that both parents had charge of the child at the time of the society’s apprehension, as indicated, they are both entitled to the rights set out under subsection 51(2) of the Act. The next step is to therefore determine if the society has met the two-part test under section 51(3) of the Act against the parents.

[76] The first part of the two-part test under subsection 51 (3) only has to be met against one of the parents who have charge of the child. It is a low threshold. See Children’s Aid Society of Algoma v. S.M.M., 2014 ONCJ 12.

[77] The court finds that the society met the first part of the two-part test under subsection 51 (3) against both parents. The mother was expressing suicidal ideation and had engaged in very disturbing behavior in attempting to jump off the balcony of the parents’ apartment. The father had been arrested for drug related charges involving marijuana and cocaine and was unable to parent the child.

[78] With respect to the second part of the two-part test under section 51 (3), the case law is clear that when more than one person has charge of the child prior to society intervention, the court must assess which of the parents is better able to care for the child, having regard to the purpose and intention of the Child and Family Services Act. See Children’s Aid Society of Toronto v. S. A., 2008 ONCJ 348, [2008] O.J. No. 3110 (Ont. C.J.); Catholic Children’s Aid Society of Toronto v. W. I. and D.T. 2014 ONCJ 62, [2014] O.J. No. 620 (Ont. C.J.).

[79] In assessing the respective plans of both parents, the court should consider section 1 of the Act which provides that its paramount purpose is to promote the best interests, protection and well-being of children. The court should also consider the relevant best interest factors that are set out under subsection 37(3) of the Act.

[80] In carefully considering the competing plans of the parents, the court finds that the mother presents a better plan for the child than the father. The court finds that while the child could be adequately protected in the care of the mother with terms of supervision, the child could only be adequately protected in the care of the father with the support and assistance of his parents, the grandparents.

[81] The father’s plan relies entirely upon the paternal grandparents to care for the child while he is working or in school. The father is not advancing his own plan of care, it is clear that he is relying on his parents and siblings to care for the child. The father is being supported emotionally and financially by his parents and he is in enrolled in college full-time. The day-to-day care and responsibility of the child will be left to the grandparents.

[82] The evidence establishes that the mother has historically always been the child’s primary caregiver. The child has a very strong bond with her. The mother has been very proactive in obtaining stable housing, counseling, parenting programs, and other supportive resources. She has demonstrated considerable resourcefulness and initiative and maturity for such a young woman.

[83] The mother has permanent resident status in Canada. She is obtained stable housing for herself and her child. She is enrolled in school at Rosalie Hall and she has obtained child care for her child through Rosalie Hall while she is attending school. She is actively involved in counseling, parenting programs, and leadership groups. The society evidence is that the mother is doing exceptionally well. She obtained financial assistance to pay for the rent of her home. She has never been late with rent payments. According to the society, the home is clean and organized with appropriate toys and a toddler bed set up for the child.

[84] The society reports that the mother has been very cooperative working with them. She is receptive to their direction and assistance. The society reported concerns about the father’s cooperation, including facilitating weekends for visits, cooperating with drives for visits, and enrolling the child in daycare.

[85] The society supports the mother’s plan of care over the father’s plan of care. This is also an important consideration. The society workers are working closely with both parents and have a deeper understanding of their parenting strengths and weaknesses.

[86] The court is also concerned about the allegations of domestic violence. Although the father’s criminal charges with respect to assaulting the mother have not yet been disposed of in the criminal court, there was ever evidence of conflict and physical altercation between the parents and the father has currently been charged.

[87] The father does not have permanent resident status in Canada, nor do the grandparents. The parents are living in Canada on a visitor’s visa the father is living in Canada on a student visa. The grandparents’ visitor’s visa expires in 2018 although they have applied for permanent status. The court is concerned that if the parents do not obtain permanent residency status in Canada than the father’s plan of care for the child will fall apart.

[88] The court is also concerned about the evidence of alcohol and drug use by the father as well as the drug related charges that the father was facing although those charges have apparently been resolved. The two charges of possession of cocaine and marijuana have been withdrawn and one of the two charged for failure to appear in court was withdrawn. The father pled guilty to one count of failure to appear and received a conditional discharge with six months of probation and twenty hours of community service.

[89] Another significant concern with respect to the father’s plan is his inability to facilitate access between the child and the mother. The society’s evidence establishes that the unwillingness of the father and paternal grandparents to facilitate access between the child and the mother is having an impact on the child’s emotional well-being as the child is not able to see her mother on a consistent basis.

[90] The society’s affidavit details a number of canceled visits once the child was placed in the care of the paternal grandparents. During the argument of the temporary care and custody hearing in March 2016 the father was vigorously opposed to the mother having any overnight visits with the child, notwithstanding the undisputed evidence of the mother’s stability, and ability to care for the child. The father maintained this position at the return of the motion in May of 2016.

[91] Although the paternal grandparents are loving and devoted grandparents to the child and the court commends the grandparents for their care of the child and their assistance and support to both parents and now to the father, they do not get the legal benefit of the test before me nor can they usurp the place of the mother as the parent who had charge of the child, along with the father, at the time of apprehension. The court finds that the mother’s plan is the more appropriate plan for the child having regard to the best interest factors set out under the Act.

[92] Having made that determination, the child clearly has a close and loving relationship with her paternal grandparents, the father and her father’s extended family. The child should have generous overnight access to the father and the paternal grandparents.

Part Seven-Conclusion:

[93] For all of the above reasons, the court makes the following temporary order:

1. The child shall be placed in the temporary care and custody of the mother, subject to the following terms and conditions:

a. the mother shall continue to work with Rosalie Hall and her counselors;

b. the mother shall continue to have stable housing;

c. the mother shall allow society workers to visit announced and unannounced at her home and to interview the child privately;

d. the mother shall cooperate with the society and sign the necessary consents as requested;

e. the mother the mother shall register the child in daycare;

f. the mother shall allow access between the child and her father and extended family.

2. The father and paternal grandparents shall have temporary access to the child on alternating weekends from Friday at 6 PM until Sundays at 7 PM, and any other access as agreed upon between the parties, in consultation with the society and at the society’s discretion, including mid-week access if possible and in the child’s best interests.

3. Both parents shall notify the society if they make any changes to the access schedule.

4. Both parents shall immediately notify the society of any change to their address or contact information.

[94] I thank counsel for their very helpful presentation of the law and evidence in this matter.

Released: July 26, 2016

Signed: “Justice Sheilagh O’Connell”

[^1]: The mother identifies as Roman Catholic.

[^2]: See Catholic Children's Aid Society of Toronto v. W.I., 2014 ONCJ 62 and in Children’s Aid Society of Toronto v. C.S., [2015] O.J. 1031 at para. 52.

[^3]: See Children's Aid Society of Ottawa- Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont.Sup.Ct.); Children’s Aid Society of Toronto v. C.S. [2015] O.J. No. 1031 (O.C.J.) at para. 45.