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.

(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 Information

Ontario Court of Justice

Date: March 6, 2017

Court File No.: Toronto C71783/14

Between:

Children's Aid Society of Toronto, Applicant

— AND —

K.S. and A.H., Respondents

N.D. Added party

Before: Justice Roselyn Zisman

Heard on: February 28, 2017

Reasons for Judgment released on: March 6, 2017

Counsel

• Laura Goldfarb — counsel for the applicant society
• Karmel Sinclair — counsel for the respondent K.S.
• Gary Johnston — counsel for the respondent A.H.
• Nancy Thompson — counsel for N.D., added party
• Julia Tremain — counsel for the Office of the Children's Lawyer, legal representative for the child R.H.

Decision

Zisman, J.:

[1] Introduction

[1] This is a motion on behalf of N.D. ("paternal grandmother") pursuant to Family Law Rules 15 to set aside or change the order of Justice Curtis made on October 24, 2016 to place the child R.H. who is 11 years old in the care of the Respondents, K.S. ("the mother") and A.H. ("the father"). The order provided that the child remain in the care of the paternal grandmother until December 24, 2016 and then be placed in the care of her parents subject to terms of supervision for 6 months.

[2] On December 22, 2016, this motion was brought on an urgent basis on the grounds that the mother had tested positive for crystal methamphetamines on October 11, 2016 but the paternal grandmother was not made aware of this positive test result until November 28, 2016.

[3] In view of the short notice, the society and parents' counsel wished the motion adjourned. I held the matter down to permit counsel for the parents to prepare handwritten responding affidavits and the society was granted leave to serve and file an Early Status Review Application to place the child in the care of her parents subject to terms of supervision for 6 months. Initially the society took the position that the risk to the child could be mitigated by terms of supervision. However, the society then changed its position and supported the grandmother's motion.

[4] An order was made on a temporary without prejudice basis that the child remain in the care of the paternal grandmother and that the parents have weekend access on terms that the parents refrain from the use of any substances without a prescription and prior consultation and approval by a medical professional with the medical professional being made aware of the parents' drug history and with frequent random testing.

[5] The motion was to be heard on its merits on January 17, 2017 but at the request of counsel for the parents was adjourned until February 28, 2017 as counsel indicated they needed more time to prepare responding materials.

[6] The society has now amended its Status Review Application and seeks an order placing the child in the care and custody of the paternal grandmother pursuant to a subsection 57.1 order of the Child and Family Services Act. Pending a final disposition the society supports the child remaining in the care of the paternal grandmother. The parents oppose the motion seeking that the child be placed in their care on the terms of supervision initially set out in the order of October 24th with any other terms as imposed by the court.

[7] Counsel for the child submits that the child who is 11 years old feels that she can decide where she wishes to live despite being told otherwise. She misses her parents and wishes to live with them but loves living with her grandmother. If she has to stay living with her grandmother she is content with those arrangements and wishes to see a lot of her parents. Ms Tremain on behalf of the child expressed her concerns that there was pressure on the child and she is aware of the court proceedings.

[8] In deciding this motion I have reviewed the affidavits filed as well as the Statement of Agreed Facts, the Protection Application, Status Review Application and the Amended Protection Application and Amended Status Review Applications and Answers.

Background

[9] On October 3, 2014 the child was apprehended from the care of the parents. The paternal grandmother's home was designated a place of safety and the child was placed in the care of the paternal grandmother where she has remained since that time.

[10] The child was apprehended because of concerns about the parents' long-standing addiction to crystal methamphetamine, cocaine, GHB and other drugs, domestic violence, the child reporting that she was aware her parents used drugs and did so in her presence and the condition of the home. The parents' drug use was impacting on the child's safety and well-being as she had a history of absences and lateness at school. Further, the parents were not willing to work co-operatively with the society and the father threatened to remove the child from the jurisdiction.

[11] After several court attendances, a temporary care and custody motion was scheduled for December 3, 2014. On consent, the child was placed in the care of the paternal grandmother with supervised access to the parents once a week with the level of supervision and an increase in access at the discretion of the society. The parents agreed to attend for random drug testing and to work with the society to seek treatment for their drug addiction and substance misuse.

[12] At the court attendance on March 25, 2015 the society advised that the parents were attending joint counselling and the father was in a drug treatment program. As a result of concerns about the reliability of the hair follicle tests that had been conducted by Motherrisk, the society was exploring interpretation of the tests by an American forensic lab or possibly just relying on urine testing.

[13] On May 14, 2015 the paternal grandmother brought a motion to be added as a party. The society agreed but the parents opposed and counsel for the child was unsure of her position. Timelines were set for the parents to file their materials. The parents subsequently consented to the paternal grandmother being added as a party.

[14] On August 26, 2015 the parties were again in court. The society advised the court that the parents had consented to random urine screen testing and the father had tested positive for crystal methamphetamine but the mother's urine screens had been negative. Counsel for the society advised that the society's long standing expectation was that the father would attend residential drug treatment and as the parents were planning together it was not prepared to consent to unsupervised community access.

[15] The society filed an amended Protection Application seeking a section 57.1 order placing the child in the care and custody of the paternal grandmother.

[16] There were several further attendances as the society and parties attempted to find a resolution. The society initially sought to proceed with a summary judgement motion and then changed its position. The society again amended its Protection Application and sought an order placing the child with the parents subject to a 6 month supervision order. The matter was set for trial.

[17] On September 19, 2016 at the settlement conference before me, the parties agreed to a finding of need of protection pursuant to sections 37(2)(b)(i) and (ii) and 37(2)(g). After the paternal grandmother signed the Statement of Agreed Facts, the parents made several changes to the underlying facts that were not agreed to by the paternal grandmother. The most significant change was that the parents crossed out the words that they "have a long standing addiction" and substituted the words, "have been long term users of crystal meth, and other drugs". Despite this change, the underlying agreed upon facts were more than sufficient for the findings of need for protection. It was agreed that the trial would then only proceed with respect to the disposition.

[18] On October 24, 2016, the parties settled the case prior to trial. This is the order that the paternal grandmother with the support of the society now seek to set aside or change.

Statutory Test

[19] Although counsel for the paternal grandmother's motion states that the motion is brought pursuant to Family Law Rules 15 that is, to change or set aside the outstanding order, it was agreed by all counsel that the proper test is pursuant to subsection 64(8) as Rule 15(3) does not apply to a motion or application under the Child and Family Services Act.

[20] Subsection 64(8) of the Child and Family Services Act sets out the test for an interim motion brought while a status review application is pending:

If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's custody.

[21] In the decision of Children's Aid Society of Algoma v. S.S. and M.C. Justice John Kukurin interpreted this provision as follows:

Subsection 64(8) does not create a presumption in favour of whomever has care and custody of a child. It goes further than a presumption. The use of the words "shall remain" implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child requires a change in that status quo. In my view, the use of the word "require" in this provision is not accidental. "Require" is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation. Moreover, the criterion for determining that there is a requirement for a change is the best interests of the child. Whenever this test is to be applied under the statute, the person making the determination must take a number of listed considerations into account.

[22] This interpretation emphasizes the priority that subsection 64(8) gives to one of the best interest factors namely, the importance of continuity of care for a child.

[23] In this case, counsel agree that the paternal grandmother has had care and custody of the child since October 3rd 2014 and maintained de facto custody as the terms of the October 24th, 2016 order, that the child be placed in the care of her parents, never occurred. Further, counsel agree that the onus is therefore on the parents to demonstrate that it is necessary in order to protect the child's best interests to change the existing order before a trial of the Status Review Application.

Findings of Fact

[24] I have considered that temporary motions are made on affidavits that are untested by cross-examination but in this case much of the evidence relied upon by the parties is largely not disputed.

[25] I make the following findings:

1. The mother tested positive for the use of crystal methamphetamines on October 11, 2016. The mother deposes that she consumed the drugs on only one occasion in around late September or early October while out with some girlfriends;

2. The mother did not disclose this use to the society or the paternal grandmother. The mother initially stated that the positive test was a result of prescribed medications;

3. The father advised the society worker that the mother had not used crystal methamphetamine but the positive result must have been from cold medication. The father deposes that he was unaware of the mother's use of crystal methamphetamine;

4. The mother did not admit to the use of crystal methamphetamine until December 22, 2016 when the society worker advised her that based on the information he received from Dr. Greenwald of Driver Check that her positive test could not have resulted from her use of prescribed medication;

5. The father tested positive for opiates on October 7 and 11, 2016. The father had a prescription for oxycodone from his dentist for dental work. The society worker shared these positive results with counsel in court on October 24, 2016. The mother had also been prescribed oxycodone for dental work. Both parents were also prescribed acetaminaphin/caffeine/codene;

6. However, on October 24th, the society worker had not yet spoken to the parents' dentist. The society worker subsequently spoke to the dentist who confirmed that neither parent had advised him of their substance abuse history;

7. Subsequent drug tests have been negative except for the results received on February 27th (the day before this motion) that the father tested positive for marihuana. Further, although the test results were negative on December 20th, 2016, the father's sample was found to be out of the normal temperature and when a further sample was requested the father advised his bladder was empty;

8. The condition of the home is no longer a concern and the parents have been co-operative with the society;

9. The society worker spoke to the child who advised that she had not seen either of her parents using drugs on her home visits and she had no concerns about her parents' behaviour;

10. The mother has participated in drug use prevention counselling with her counsellor in person and over the telephone. Her counsellor connected her with a weekly drop-in program that does not require prior enrollment and has no wait list. The mother deposes that she commenced the program on February 16, 2017;

11. Neither parent has ever enrolled in an intensive residential drug treatment program; and

12. The mother deposes that in the weeks leading up to the child's anticipated return to her care, she spoke to the child about which school she wished to attend. As the child had mixed feelings and was taking too long to give her input, the mother determined that the child should attend a Catholic school in her area as she was already attending a Catholic school and the records for the transfer including information about the child's individual educational plan could be easily transferred.

[26] Subsequent to submissions being made on this motion, I indicated that for the next court attendance I wished a copy of the child's report card to be filed. The paternal grandmother advised that she had brought a copy of the most recent report card and on consent of all counsel it was filed. The report card indicates that the child has been attending school regularly and on time and appears to be doing well. The comments by the teacher state that:

R. has made a good start to her Grade 6 year and has maintained a consistent effort and has utilized the resources put in place for her. She has several good friends and is polite and respectful with her teachers…..Her organizational skills are improving but still require support and I appreciate all of the support received at home to keep her on track. I am very blessed that she is remaining with us for the second term!

Analysis

[27] It is the parents' position that they have demonstrated that it is in the child's best interests to be placed in their care as they have worked hard over the last two and a half years and complied with the society's expectations. The mother's one time lapse of judgement in using drugs and not being honest with the society should not override all of the other improvements she has made. Both parents used the prescription drugs given to them by their dentist for their dental pain and not for any other nefarious purpose. It is also submitted that the mother has connected with her counsellor and is now involved in a drop in drug program.

[28] With respect to the arrangement made for the child's school transfer the mother relies on her statements in her affidavit deposing that she had several telephone discussions with the school and was about to enroll the child on December 22nd when the paternal grandmother filed her motion. The mother provides a copy of her telephone logs showing that she contacted the child's present school on December 13th, 19th, 20th and 22nd. She further deposes that although she was initially promised a letter to confirm she had been in active discussions regarding the school transfer she was not provided with such a letter and suspects the paternal grandmother may have discouraged the school from providing such a letter. The paternal grandmother denies any such interference.

[29] The father essentially denies the allegations. The father did not provide any evidence in his brief affidavit about his steps to ensure that he would not use drugs in the future or any programs he is now connected with.

[30] It is undisputed that the child is doing extremely well in the paternal grandmother's home where she has resided since October 3, 2014 and that all of her needs are being met.

[31] It is clear that when the paternal grandmother agreed to the order of October 24, 2016, she was unaware of the mother's positive test result, that the mother was not honest with the society and that neither parent had advised their dentist of their drug history before obtaining a prescription for highly addictive drugs.

[32] This child was removed from the parents' care due in large part of their drug use and its impact on their ability to meet their child's needs. Yet neither parent has provided any evidence of their participation in an intensive drug treatment program. Since the events in the Fall of 2016, the father provided no evidence of any steps taken by him to enroll in a drug relapse prevention program. Although the mother has taken some steps, she does not explain why she waited until the end of February to even attend a drop-in program that has no wait list. No letter was produced from the mother's counsellor to corroborate her counselling efforts.

[33] Both parents have shown a lack of judgement in obtaining a prescription for opiates from their dentist without being candid with him about their past drug addiction history.

[34] The mother does not explain why on the eve of having her child returned she would have again used drugs. The mother does not explain what steps she is taking to understand and ensure that such a lack of judgement would not occur in the future. Further, it is suspicious that if the mother only used drugs on this one occasion why she cannot pinpoint the exact date. There is also no evidence provided by the mother that would confirm that if she only used crystal methamphetamines on one occasion in late September or early October that it would result in a positive urine test result on October 11th. As the onus is on the parents to change the status quo, I find that it was incumbent on the mother to provide this evidence to the court.

[35] There is a further concern about the lack of honesty by both parents as they are asking the court to trust that they will comply with the terms of a supervision order. There is also a concern about the lack of communication between the parents as the father deposes that he never knew that the mother took crystal methamphetamines and she confirms that she never told the father.

[36] I also find that despite the plan made on October 24th for the child to be transferred into their care by December 24th, neither parent made any concrete arrangements for the child's schooling which is concerning in view of the child's special educational needs.

[37] Just because the child has had week-end access in the parents' home without any concerns, this is not a basis for finding that it is now in the child's best interests for the child's placement with her paternal grandmother, that have been in place for over 2 years, should now be changed.

Conclusion

[38] I find that the parents have not met the onus on them, pursuant to subsection 64(8) to vary the current status quo placement of the child with the paternal grandmother pending trial.

[39] The paternal grandmother has agreed that the child continue to have access on week-ends to her parents consistent with her wishes and taking into consideration her extracurricular activities and any other plans of the child or paternal grandmother.

Order

Order as follows:

1. The motion is granted.

2. The child R.H. shall continue in the temporary care and custody of the paternal grandmother N.D.

3. The parents K.S. and A.H. shall have access to the child, in the discretion of the paternal grandmother, on every week-end from Friday until Sunday subject to changes to accommodate the child's extracurricular activities and social events and any plans by the paternal grandmother. If there is a change in the access schedule, the paternal grandmother shall advise the parents in writing as soon as possible but in any event 24 hours in advance of any such change.

4. The parents shall submit to random, supervised drug testing as requested by the society at a minimum of once a month. Any positive results shall be immediately communicated to the paternal grandmother.

5. The parents shall sign any consents requested by the society to permit the society workers to speak with and obtain information from all service providers involved with each parent including not limited to medical doctors, dentists, therapists and counsellors.

6. None of the parties shall ask the child where she wishes to reside or discuss the outstanding court proceedings with her. For clarity, this does not apply to the child's counsel or any social worker assisting child's counsel.

[40] Counsel for the paternal grandmother has filed a motion for costs against the society. If the matter is not settled, brief written submissions can be made on a timetable as agreed upon between counsel and filed with the trial co-ordinator.

Released: March 6, 2017

Signed: Justice Roselyn Zisman

Footnotes

[1] 2010 ONCJ 332 at para. 16; See also decision of Justice E. Murray in CAS of Toronto v. S.G. and C.K.S., 2011 ONCJ 746