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.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Date: May 3, 2017

Court File No.: 462/06

Ontario Court of Justice

Between:

G.R. Applicant

– AND –

Windsor-Essex Children's Aid Society, C.D.M. and C.M. Respondents

Before: Justice B. Tobin

Heard on: April 18, 2017

Ruling released on: May 3, 2017

Counsel and Parties

Linda Hawkins ……………………………………………. Counsel for the Applicant

Mark Hurley ……………………………………………… Counsel for the Society

C.D.M. ……………………………………………………… In person

C.M. ……………………………………………………… Not in attendance

Lisa Labute ……………………………………………… Counsel for the Office of the Children's Lawyer

ENDORSEMENT

[1] Introduction

The Applicant seeks leave to bring a status review application of a Crown ward pursuant to subsection 65.1(5) of the Child and Family Services Act (the "Act"). The child who is now 11 years old has been in care for over six years and the Society has found an adoptive family for him. The Society, supported by child's counsel opposes the relief sought.

The Child and the Parties

[2] The Applicant is the biological father (the "father") of the child, E.R., born … 2006 (the "child").

[3] The child was the subject of a number of court proceedings brought pursuant to the Act by the Windsor-Essex Children's Aid Society (the "Society").

[4] The Respondent, C.D.M., is the child's biological mother. She did not file any responding evidence but did appear at the return of the motion.

[5] The Respondent, C.M. was the spouse of the mother. He was personally served with the motion. He did not file any responding evidence nor appear at the return of the motion.

Litigation History

[6] The Society initiated a child protection application on October 26, 2006. That case ended with the order of Justice Zaltz dated May 1, 2008 finding the child to be in need of protection and ordering the child placed in the mother's care subject to terms of supervision.

[7] A status review application was subsequently brought and resulted in the order of Justice Phillips dated December 28, 2008 finding that the child remained in need of protection and continued the child's placement in the mother's care subject to terms of supervision.

[8] A second status review application brought May 15, 2009 sought termination of the order made by Justice Phillips.

[9] On July 26, 2011 the child was apprehended and a child protection application was initiated.

[10] On October 3, 2012 Justice Bondy found the child to be in need of protection.

[11] On December 31, 2012 Justice Bondy made the child a ward of the Society for a period of six months.

[12] A status review application was subsequently brought. The respondent did not initially file an Answer to this application. Subsequently, he brought a motion seeking leave to do so. Justice Bondy granted him leave to file an Answer restricted to access only. On January 30, 2014 Justice Bondy found the child remained in need of protection.

[13] On January 22, 2016 Justice Bondy ordered that the child be made a ward of the Crown.

[14] On May 5, 2016 this court made an order granting the mother and father access to the child. Access for the father was stepped down over 6 months from twice a month to a minimum of six times per year. The level of supervision of this access was at the discretion of the Society.

[15] The child has resided in the care of the Society continuously since he was apprehended on July 26, 2011. The child has been in his current foster placement since May 2013.

Legal Considerations

[16] The Act prescribes at s. 65.1 who may bring and in what circumstances an application to review the status of a Crown ward.

[17] A parent of a child is authorized pursuant to cl. 65.1(4)(b) to bring such a status review application on notice to the Society.

[18] However, where a child has received continuous care for at least two years from the same foster parent, subsection 65.1(5) requires a parent to seek leave of the court before commencing a status review application pursuant to cl. 65.1(4)(b).

[19] Subsection 65.1(5) does not set out any criteria for the determination of a motion seeking leave.

[20] In the absence of any statutory guidance, Justice Bean, in Catholic Children's Aid Society of Metropolitan Toronto v. F.(B.A.) proposed the following principles to guide a court when deciding whether leave should be granted under subsection 65.1(5). They are as follows:

1. The status review application for which permission is sought must be made in good faith, that is, not for some ulterior motive.

2. Leave ought not to be granted if the relief sought can be obtained practically otherwise than by reviewing the whole Order itself.

3. There must be some unusual circumstances that justify the review in spite of the child's permanent status as a Crown ward and despite the child's permanent living situation that is, living continuously with the same foster parents for at least two years.

4. The applicant must establish and the judge must be satisfied that a status review application at this time would likely accomplish the purposes of the Act as set forth in section 1; and

5. The applicant must establish a prima facie case, that is, if leave were granted a hearing would probably result in the relief sought by the applicant.

The Court also held that it must be satisfied on all of those principles on a balance of probabilities.

[21] In Durham Children's Aid Society v. J-AS the Court considered the principles set out in Catholic Children's Aid of Metropolitan Toronto v. F. (B.A.) supra and appeared to give prominence to the fourth principal – meeting the purposes of the Act – as follows at para. 47:

"…I think that it is sufficient to say that any party making an application for a review of a Crown Wardship order, which does not lie as of right, must satisfy the court, on the balance of probabilities, that such review would meet "the paramount" and "other purposes" definitions found in section 1 of the CFSA. Best interests are included therein."

[22] The fifth principle referred to by Justice Bean, that is, there must be a prima facie case before leave is granted was considered by the court in Children's Aid Society of Haldimand and Norfolk v. J.A.M.-F., where Justice Thibideau concluded at para. 56 as follows:

"Has the moving parent placed before the court… apparently credible and weighty evidence that is sufficient to warrant holding a hearing on the merits? Is the evidence sufficient to demonstrate that there is reasonable prospect of success? However, this test would apply to all of the evidence and all of the circumstances of the parent and the children before the court at the time leave is requested to be given. Once again, context is everything, it is not sufficient that the context be restricted to the facts and circumstances related only to the parent. It is required that the evidence take into account the facts and circumstances of the parent and the children who are the subject of the application. Justice Spence, in S.R. v. Catholic Children's Aid Society of Toronto held with respect to the fifth principle that the court should not allow a status review application to proceed unless the moving party is able to establish, "a meritorious case for relief"."

[23] A consideration of the five principles provides a helpful guide for conducting a contextual analysis of whether leave should be granted. At the same time the court's discretion should not be constrained by a requirement that all five principles must be met by a moving party or that other compelling considerations should not be taken into account: Children's Aid Society of Toronto v. S.C. v. I.K. The analysis engaged must be a child focused one that gives effect to the paramount and other purposes of the Act.

Application of Legal Considerations

[24] I will consider the evidence and submissions made using the five principles as a guide.

Motive

[25] The Society argues that this motion is the father's attempt to frustrate its attempt to place the child for adoption.

[26] The father submits that he is not acting in bad faith. He took steps to bring this case before he was served with a Notice of Intent to Place the Child for Adoption. His affidavit in support of the leave motion was sworn December 16, 2016. The Notice of Intent was served upon him January 30, 2017.

[27] I am concerned that the leave motion has been brought to frustrate a specific adoption plan.

[28] The Society has provided the following evidence, uncontradicted by the father, that he has known since June 2016 of the Society's attempts to find an adoption placement:

a. on June 23, 2016 the father met with a Society worker to complete a social history used for disclosure to potential adoptive families;

b. on July 21, 2016 the father met with a Wendy's Wonderful Kids recruiter and the worker at which time they discussed permanency through adoption for the child;

c. on August 4, 2016 the father was advised by a Society worker that he was no longer approved to attend community events with the child as the Society was moving forward with an adoption;

d. the father, in his affidavit, acknowledges that he was told by a Society worker that it intended to find an adoptive home for the child;

e. he also acknowledged being informed by the foster parents that he was no longer to have telephone access with the child so that the current access regime would not have a "chilling" effect on potential adoptive placements; and

f. on December 8, 2016 the Society worker learned that the father attended at the child's hockey game. On December 14, 2016 the worker sent the father a text message advising that he Society was proceeding with an adoption for the child and advising him that he did not have permission to attend community events.

[29] On this evidence I find that a significant element of the father's motive for bringing this motion for leave is to disrupt the potential adoption planning that has taken place for this child.

Alternative Steps

[30] The father wants to pursue a status review application in which he will seek placement of the child with him.

[31] The Society concedes and I am satisfied that it is not possible for the father to obtain the relief he seeks by some less drastic way than a review of the whole Crown wardship order.

Unusual Circumstances

[32] The Crown wardship order was made on the basis of a statement of agreed facts. The father was present when the order was pronounced.

[33] When the Crown wardship order was made on January 22, 2016 the following had already taken place:

a. the father had completed anger management counselling in 2007;

b. the father participated in a substance abuse program in 2008;

c. the father was exercising access; and

d. in a 2013 psychological assessment of the child, the assessor observed the child was most positive about his relationship with the father.

[34] The evidence does not disclose that the father's circumstances at the time the Crown wardship order was made are significantly different than they are now.

[35] There is nothing to suggest that there have been unusual circumstances that would justify the intrusion into the child's long term permanency planning.

Paramount and Other Purposes

[36] It is not evident that a status review application at this time would likely promote the objectives set out in Section 1 of the Act. The paramount purpose of the Act is to promote the child's best interests, protection and wellbeing.

[37] In assessing best interests the court must consider the term in a "wide focus" that "encompasses an examination of the entirety of the situation and this includes concerns arising from emotional harm…" Catholic Children's Aid Society of Metropolitan Toronto v. M. (C), [1994] SCR 165, para. 38.

[38] The father's plan is to have the child placed in his care. He has full time employment as a skilled carpenter and framer in Windsor. He has held this employment for two years. He has not provided details on how the child who has special needs will be cared for by him. He states he has extensive family support but offers no details of how that support will be implemented. No other family members came forward with a plan to care for the child.

[39] The respondent was having access every other Saturday. This stopped in September 2016. It is now six times per year. He has on occasion been late attending for visits. His access always occurs in the family visitation program of the Society. It is fully supervised. The Society's evidence is that is has not always been positive or without incident.

[40] The father argues that reuniting the child with him in circumstances where he has a positive relationship with the child through access is in the child's best interests. On its own I accept that that would be the case. However, in the context of the evidence presented, that is:

a) without details of how the plan would work;

b) an explanation why access has been supervised and sporadic;

c) how the father would meet the child's special needs;

d) the length of time the child has been in care; and

e) an adoptive home has been found for the child,

it cannot be said there is sufficient evidence that bringing a status review application would be in the child's best interests.

[41] Allowing the child to remain with the foster parents without the uncertainty of an ongoing status review application and while an adoption placement is underway would better meet the child's protection and wellbeing.

Prima Facie Case

[42] In the case of Bridge v. Laurence, Justice Mackinnon described the phrase prima facie as follows:

"20 Prima facie is a well-known Latin phrase meaning sufficient to establish a fact or raise a presumption unless disproved or rebutted. A prima facie case is established if a party produces enough evidence to allow the trier of fact to infer the fact in issue and rule in the party's favor (Black's Law Dictionary, 9th ed, sub verbo "prima facie case")."

[43] I will now consider the evidence in relation to whether the father has made out a prima facie case that he would probably be granted that which he seeks – placement of the child in his care and custody.

[44] As set out earlier in these reasons, the following is the father's plan:

1. He is steadily and gainfully employed. I take from this that the father can provide financially for the child. It may also demonstrate stability and maturity in that he has maintained the same employment for two years. This must be considered together with evidence of his behaviour and actions towards Society workers and the foster parents which will be dealt with below.

2. He has a two bedroom home, but is willing and able to obtain appropriate housing for himself and the child.

3. He will look for a home in the same school district the child now attends.

4. He has extensive family support.

5. He would maintain the child's relationship with his foster parents and his sister; and

6. He will enroll the child in extracurricular activities.

[45] In assessing the father's plan it is also necessary to consider the child's circumstances.

[46] The evidence presented regarding the child is that he has special needs.

[47] When the child was almost 7 years of age, a psychological assessment of him was undertaken. This assessment generated a profile consistent with a diagnosis of, ADHD combined type, anxiety, and learning disability.

[48] The assessor recommended that the child be provided with routine, nurturing and settled parenting styles.

[49] During the assessment process the child did speak positively about his father. It seemed to the assessor that the child was at the beginning stage of getting to know his father.

[50] The child has been in Society care for almost six years and with his current foster parents for the past four.

[51] The child's access with his father has always been supervised at the Society and sporadic.

[52] The Society found an adoptive home for the child. Many meetings between the child and a proposed adoptive family have taken place. The Society worker has observed that they have begun to build a strong bond and attachment. The Society worker has observed the child to be happy about having a "forever family".

[53] Child's counsel had the consent of the parties to advise the court of his wishes. He wants a permanent family. Child's counsel supported the Society request that the father's motion for leave not be granted.

[54] A child focused approach to the consideration of the applicant's request will lead a court to consider that "good intentions are not enough." The evidence to be considered is whether the parent has in fact changed and is now able to give the child the care that is in his best interests. There is not to be experimentation with a child's life with the result that in giving the parent another chance, the child would have one less chance: Children's Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man. C.A.) and Children's Aid Society, Region of Halton v. L. (T.D.L.D.S.) 2015 ONCJ 255 para. 218.

[55] It would not be in the child's best interest as that term is used in ss. 37(3) of the Act to be placed in the father's care. This subsection is important to consider in the context of determining whether a prima facie case has been made out. Any order under Part III of the Act that deals with placement must consider ss. 37(3).

[56] The father has not demonstrated on a prima facie basis that the best interests of the child would be met by placing him in his care for the following reasons:

1. The father recognizes that the child will require parenting that meets his emotional and behavioural needs. However, his plan lacks detail. It is not known how his family will support him. It is not known what knowledge or skills he or they have to parent the child with his special needs.

2. The father has provided no details of what child care arrangements could be put in place given that he works on a full time basis.

3. The father's relationship with the child has not developed significantly while he has been in care.

4. The father's behaviour with Society workers and attendances with the foster parents suggest an inability on his part, at times, to regulate his own behaviour and manage his frustrations. He refused to provide the Society worker with his address on January 27, 2017 when asked so that a Notice of Intent could be served. There has been conflict in his contact with the child's foster family.

5. The father has not explained how his circumstances at the time he consented to the Crown wardship have changed so significantly that he is now in a position to assume care of the child.

6. He has never been the child's primary caregiver.

7. He has been absent from the child's life for lengthy periods.

8. This child needs permanency with a family who understands and is willing to meet the child's special needs. The Society has found an adoptive family.

9. It is the child's wish to be part of a "forever family".

10. There is too much risk and uncertainty in the father's plan for the child.

Conclusion

[57] Accordingly, the father's motion for leave and status review application are both dismissed.

[58] The father's desire to maintain a relationship with the child can be addressed in the openness application he has started.

Released: May 3, 2017

Original signed and released

Justice B. Tobin

Footnotes

[1] In starting this case the father named himself as Applicant. This contrary to Rule 7(6) which provides that the description of parties as applicants and respondents is to remain the same in subsequent proceedings subject to enumerated exceptions which do not apply here. His doing so is an irregularity that is not fatal to the proceeding: see Rule 2(2)-(4).

[2] Contrary to s.65.1 the Applicant's Status Review Application has already been issued by the Clerk of the Court.