WARNING

The court hearing this matter directs that the following notice be attached. This is 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: November 17, 2017

Court File No.: Toronto C52300/10

Between:

Catholic Children's Aid Society of Toronto Applicant

— AND —

K.G. D.B. Respondents

Before: Justice Roselyn Zisman

Heard on: November 10, 2017

Reasons for Judgment released on: November 17, 2017

Counsel

Karen Ksienski — counsel for the applicant society

Nancy Charbonneau — counsel for the respondent father

K.G. — on her own behalf

Nav Rai — counsel for the Office of the Children's Lawyer, legal representative for the children

Decision

Zisman, J.:

1. Introduction and Background

[1] This is a motion pursuant to section 50(6) of the Child and Family Services Act ("CFSA") to vary the temporary care and custody order made on October 11, 2017 that placed the 4 children before the court into the care of their maternal great aunts.

[2] The respondents are the biological parents of all of the children. The children are B. who is 10 years old, K. who is 9 years old, M. who is 7 years old and S. who is 3 years old. At the time of the apprehension the child M. was in the care of his maternal aunt and her partner and the other children were in the care of the mother. The parents had separated in June 2015 and the father had only had sporadic contact with the children since that time. However, it was the father who had reported that the children were being inappropriately disciplined by the mother's boyfriend that ultimately led to the children being apprehended.

[3] The society commenced a Protection Application on February 7, 2017 although it had been involved with the parents on and off since 2010. A without prejudice order was made placing the children in the care of the maternal aunt and her partner.

[4] After innumerable delays, the temporary care and custody motion was finally heard on October 4, 2017. The father sought an order placing the children in his care or in the alternative, an order for increased access. The position of the society was supported by the mother and counsel for the children.

[5] My decision was released on October 11, 2017. For reasons outlined in that decision, I held that the continued placement of the children with their great aunt and her partner was the least disruptive placement that was consistent with the adequate protection of the children and in accordance with subsection 1(2) of the CFSA. I also ordered that the mother and the father have access a minimum of once a week on terms in the discretion of the society. As there was evidence that all parties were speaking to the children about the court proceedings, a further order was made that prohibited all parties from discussing with the children the court proceedings, the children's future living arrangements or speaking negatively about any of the other parties.

2. Events Leading Up to the Present Motion

[6] On November 7, 2017 the society filed a 148 motion for leave to bring an urgent motion to change the order for access to M. and seeking an order that access be in their discretion. The motion was scheduled to be heard on November 9, 2017.

[7] On November 9, 2017 the society filed a further motion requesting an order that all 4 children be placed in the care of the society as the children's placement had broken down and that access to the children be in the discretion of the society. Due to a lack of time to hear the motion on its merits, a without prejudice order was made placing the children in the care of the society.

[8] The motion was heard on its merits the next day. The society relied on the previous affidavits filed by its workers in support of the temporary care and custody motion and the affidavit of Claudia French, November 6, 2017, and her 2 further affidavits sworn November 9, 2017. The father relied on his affidavit sworn November 9, 2017 and the affidavit of his partner sworn November 10, 2017. The mother although represented by counsel, Gurbin Singh, filed an affidavit prepared on her own as she had been unable to contact Mr. Singh. Society counsel also unsuccessfully attempted to contact Mr. Singh.

[9] The position of the society was supported by counsel for the children although Mr. Rai advised the court that he had not yet had an opportunity to speak to the children.

[10] It was the position of the father that the children be placed in his care with the support of his partner. In the alternative, he sought increased day access or overnight access.

[11] It was the position of the mother that the children be placed in her care or in the alternative that they be placed in the care of the society. She did not support the father's plan that the children be placed in his care.

3. Legal Considerations and Applicable Statutory Provisions

[12] Although this is a motion pursuant to subsection 51(6) of the CFSA, the entire provisions of that subsection are relevant as follows:

Adjournments

51.— (1) The court shall not adjourn a hearing for more than thirty days,

(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or

(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.

Custody during adjournment

(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).

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.

Access

(5) An order made under clause (2)(c) or (d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate.

Power to vary

(6) The court may at any time vary or terminate an order made under subsection (2).

Evidence on adjournments

(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[13] As in all cases the paramount purposes of the CFSA should always be considered. Subsections 1(1) and (2) provide as follows:

1. Paramount purpose

(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children

(2) Other purposes – The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

1. To recognize that, while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

[14] It is the society position that the relevant statutory test for this motion is subsection 51(6) as a temporary order was already made on the temporary care and custody motion. Counsel for the father did not explicitly disagree with the position of the society but emphasized and implied that the best interests of the children was the most relevant consideration as well as a consideration of the paramount purposes of the CFSA.

[15] The test to be applied to subsection 51(6) of the CFSA has been considered in many cases. Although, subsection 51(6) does not specify the test to vary a temporary order, Justice Himel in Children's Aid Society of Toronto v. E.L., noted at paragraph 42 of that decision:

The statute does not provide that the moving party on a variation motion must demonstrate a material change in circumstances. However, in order to give effect to the statutory scheme, and recognizing that stability and continuity for children is desirable, it is appropriate to impose a threshold test of material change in circumstances. I find that the new evidence is sufficient to constitute a material change in circumstances.

[16] In the case of Children's Aid Society of Toronto v. K.D., at paragraphs 29 and 30, Justice Robert Spence set out a four-part test for subsection 51(6) as follows:

1. Has there been a material change since the making of the previous temporary order?

2. If so, is that material change risk-based? In other words, is it a change that makes it either more likely, or less likely, to affect the risk of harm to the child?

3. If the material change is risk-based, is it significant enough to vary the child's placement, having regard to the length of time that the status quo has been in place and how soon trial is likely to occur?

4. In considering step number 3, is the requested variation proportional to the change in circumstances, having regard to the court's mandate to be guided by the paramount purposes, as stated in subsections 1(1) and (2) of the Act?

[30] These four steps are not individual factors to be weighed one against the other, or considered as a collective stew, but rather, a discrete step-by-step path to follow. If the court cannot answer "yes" to each of these steps then, in my view, it is not appropriate to move on to consider whether the court should exercise its judicial discretion in favour of the requested variation.

[17] After reviewing the case law with respect to subsection 51(6) of the CFSA Justice Kukurin in Children's Aid Society of Algoma v. A.D. concluded that in a motion to vary pursuant to section 51(6) of the CFSA the presumption in favour of returning the child to whoever had charge of the child prior to the intervention, pursuant to section 51(3) of the CFSA is still a factor but not determinative. He makes the following observations at paragraph 32:

What is the upshot of this case law with respect to section 51(6) variations of temporary care and custody orders? It appears to be that the section 51(3) test is a factor but not a determinative one. It appears that the court must consider the best interests of the child in making its decision. It also appears that there may be other factors that the court may take into account besides those listed specifically in section 37(3) CFSA, provided that these have some relevance to the decision to be made. In short, once a sufficiently material change in circumstances is shown, pretty much anything can factor into the determination of whether there should be a change in temporary care and custody, and what that change should be.

4. Application of Legal Principles to the Facts of This Case

[18] It would therefore appear to be the consensus in the case law that the test is not a best interests test alone but that the first step is to consider whether or not there has been a real or material change in circumstances.

[19] In this case, there has been a material change in circumstances as the children's placement has broken down.

[20] The next step would be a consideration if the change is risk based so that it is more or less likely to affect the risk of harm to the children.

[21] In this case, the change of placement is necessary as the caregivers advised the society that they are no longer able to manage the very difficult behaviour of the children. The children were not removed from the care of the great aunt and her partner due to abuse in the home as alleged by the father. The kin caregiver did acknowledge that S. was spanked once or twice over her pull-ups as a last resort but this was not verified to be a child protection concern. There is now an ongoing second investigation as there is an allegation of inappropriate physical contact with S. due to an unexplained bruise.

[22] Counsel for the society submitted that in retrospect the society should not have placed all 4 children together with the kin caregivers due to the difficult behaviour not only of M. but of the other children as well and the ongoing fighting and conflict between the siblings.

[23] There have been ongoing concerns with respect to M.'s behaviour deteriorating to the point that he was ejected from the daycare he attended over the summer and for after-care. According to the kin caregivers, the concerns were that M. had almost broken a window at the daycare, damaged some property and hit a teacher. The case notes, attached to the father's affidavit, support the fact that the kin caregivers were having increasing difficulties managing M.'s behaviour.

[24] M. was admitted to the in-patient program of the adolescent mental health unit at the Humber Regional Hospital on August 31, 2017 for 14 days and upon discharge he continued to be a patient of Dr. Tania Fiacco, M.'s treating psychiatrist. At the time of the temporary care and custody motion it was hoped that with this intervention M.'s placement in the home of the kin caregivers would stabilize.

[25] On October 19, 2017 Dr. Fiacco reported that it was her recommendation that access between M. and his parents be suspended. Dr. Fiacco states as follows:

Throughout his stay, he is observed to struggle with significant anxiety, and emotion dysregulation. He struggles with externalized behavior significantly out of proportion to triggers. These behaviors interfere in all areas of function including his relationships with primary caregivers, peer relationships, social skills and academics. These behaviors are heightened significantly before and after visits with his biological parents.

I would strongly recommend that visits with biological parents be placed on hold for a period of time in order to further stabilize patient. My goal is to help M. learn coping skills to more appropriately react to his emotions. Also, holding visits at this time will allow his current primary caregivers an opportunity to strengthen their relationship with M. without external triggers.

I value the relationship M. has with his biological parents, however, I believe that at this time it is in his best interests to hold these visits.

[26] Dr. Fiacco and her team observed that after a visit M. became quite aggressive with peers and staff at the hospital. These observations were consistent with what the kin caregivers were also reporting.

[27] The kin worker Luc Marion reported that on November 1, 2017 he spoke to M. about his access to his father and M. stated that he did not want to visit with his father because his father asks too many questions and it stresses him out. M. also stated that he did not want to visit his mother.

[28] There were ongoing reports of the other children instigating M. that resulted in M. getting into trouble and there were ongoing fights between K. and M. The kin caregivers were also upset with the allegations being made that they hit the children.

[29] Accordingly, I find that the risk to M. of emotional harm has increased since the order made placing him in the care of the kin caregivers. I make the same finding with respect to the other children, as counselling has been recommended for those children to deal with their exposure to parental conflict and removal from their mother's care.

[30] All of the children may now also need to deal with another change in their lives namely, their removal from their kin caregivers.

[31] The next step to consider in this case, as their kin placement is no longer available, is what order is now proportional to the change in circumstances having regard to the risk of harm, the least intrusive measures, the best interests of the children and the paramount purposes of the CFSA.

5. Position of the Parties with Respect to the Temporary Placement of the Children

[32] The society relies primarily on the findings in the order made at the temporary care and custody motion to support its position that the children be placed in the care of the society and that access be at their discretion.

[33] It is the position of the society that the children cannot be returned to the care of the mother, who was the pre-intervention caregiver for 3 of the children, based on her admission that she and her boyfriend gave the children "hot sauce" as a punishment and that her boyfriend was inappropriately physically disciplining the children. With respect to M., the mother admitted that she had placed him with the kin caregivers as she could not handle his behaviour. In a recent access visit, the mother became engaged in a heated conflict with M. blaming him for a fight that S. had started.

[34] Although in submissions the mother stated that the children should be placed in her care, in the mother's own affidavit she outlines that she currently commenced working full-time and she was in the process of moving into a 3 bedroom apartment and that once she obtains accommodations and passes her probation at work she will be bringing a motion for the children to be placed in her care. The mother also outlines that she is attending counselling and in programs.

[35] The mother was severely disadvantaged at this motion as her counsel of record did not attend court or assist her with the preparation of her affidavit or her submissions. However, at this time there is insufficient evidence before the court that the mother has a viable plan to care for the children in view of the serious difficulties the mother has had in the past parenting the children, the needs of the children and her difficulties during the access visits.

[36] It is the position of the society that the father's plan for the children to be placed in his care is the same plan that the court already rejected on the temporary care and custody motion.

[37] Without repeating the detailed reasons for rejecting the father's plan, I held that there were the following concerns with his plan:

• history of previous domestic violence with the mother
• lack of insight into the effect of domestic violence on the children
• lack of protecting the children and lack of involvement with the children
• lack of appreciation of the special needs of M.
• lack of appreciation of the needs of the other children
• lack of co-operation with the society
• lack of honesty and inconsistencies in the information provided to the society and the court
• lack of priorities to the needs of the children before his own needs

[38] I accept the submissions of counsel for the father that at the time of the temporary care and custody motion, the court found that the society's plan for the continued placement of the children with their kin caregivers provided them with stability and with caregivers who were willing and able to meet their needs. However, it is submitted that now the father's plan should be considered to be the least intrusive alternative to placement in the society's care. Further it is submitted that it is in the best interests of the children and in accordance with the paramount purposes of the CFSA for the children to be placed in the father's care.

[39] I find that the concerns with the father's plan identified at the temporary care and custody motion continue and in some ways have increased.

[40] The father in his affidavit continues to minimize the extent of the domestic violence and conflict in the home when he resided with the mother. He continues to portray himself as the victim. In the mother's affidavit she provides further details of the extent of the violence and conflict in their relationship and that the children were present. Although his current partner deposes that there is no domestic violence or conflict in their relationship, the father still refuses to give his consent for the society to speak to his former partner with whom he has 2 children.

[41] The father still does not acknowledge the effect on the children of being exposed to domestic violence and he continues to blame the mother and minimizes the extent of any such violence or conflict. The father has no appreciation of the fact that both parents are to blame for the effect on the children especially the effect on M.

[42] The father continues to minimize his actions in not being protective or remaining involved with the children after he separated from the mother in 2015. In his affidavit filed on the temporary care and custody motion, the father deposed that he had only seen the children 3 or 4 times a month for limited amounts of time at school or in the community but now he deposes that he saw them overnight. But he still fails to explain why he did not take steps to obtain a court order for regular access, why he did not work with the society or obtain services for the children. He continues to see himself as a victim and that the society is prejudging him because of his past criminal record and it is further submitted that in black cultures it is common for fathers to be in and out of their children's lives.

[43] The father does not give any details as to his plans for obtaining services for the children. In fact he does not seem to acknowledge that they need these services. The father does not respond to the fact that B. threatened to slit her wrists and she is only 10 years old. The father does not recognize the reasons his access visits for the children were separated and he only sees 2 children at a time.

[44] The father blames the mother, her boyfriend and the kin caregivers for any issues or problems the children are experiencing. It continues to be the father's position that the children did not exhibit any concerning behaviour when they resided with him and the mother. The father relies on his positive access visits with the children as an indication that he is able to care for them on a full-time basis. The father did not respond in his affidavit to the report of Dr. Fiacco and his counsel submitted that the court should simply ignore the report as it has not been subject to cross-examination or otherwise scrutinized. The father also did not respond to the evidence of the society that M. at the present time does not wish to see either parent.

[45] The court cannot simply ignore the report of M.'s treating psychiatrist or his statements. At this time, it is undisputed that it is M.'s preference not to see either parent. It is undisputed that it is the recommendation of his treating psychiatrist that his visits to his parents be temporarily suspended.

[46] The father's plan is still to parent his 4 children along with his partner's 4 children. The concerns with this plan remain as outlined in the decision on the temporary care and custody motion. Although his partner has now filed an affidavit, the issue of their financial stability to care for 8 children and the fact that the partner still has an open file with the children's aid society has not been clarified. The society advised the father prior to the temporary care and custody motion that it would consider a plan for him to parent the children on his own as placing his 4 children who all have special needs into a household with another 4 children would be overwhelming for the children. The father would not consider giving up his relationship with his partner even though the society only suggested that they not live together at this time.

[47] The father has continued to breach the orders of the court. Although the father denies that he continued to question the children about living with their kin caregivers and deposes that he just asked benign questions, M. reported that the father's questions were stressful to him and the society workers continued to caution the father about questioning the children and involving them in his conflict with the kin caregivers. I find that the evidence provided by the society workers and the effect on M. of the questions support a finding that the father continued to breach the terms of the order on the temporary care and custody motion. It would be speculative of the court to conclude that the father's reporting of ongoing allegations against the kin caregivers, his criticism of their care and his questioning of the children contributed to the caregivers finally deciding that they could no longer care for the children. However, the court can find that the father did not actively or positively support the placement.

[48] I find that there are reasonable grounds to conclude that the plan presented by the father would place all of the children at risk of harm and that there are no terms of supervision that could adequately protect them. The risks outlined in the decision on October 11, 2017 with respect to the father's plan have not changed and have now increased as it appears that he has not taken any steps to deal with those concerns and that the needs of the children, especially with respect to M., have increased significantly. At the present time, it is not in the children's best interests to be placed in the care of the father and the least disruptive alternative at this time is that the children be placed in the care and custody of the society.

[49] The society has placed M. and B. in the same foster home and K. and S. in another foster home. The mother is concerned about separating the B. and S. who are very close sisters. The society will be assessing if all of the children can be placed in the same foster home.

6. Access

[50] Given the special needs of all of the children and the recent upheaval in their lives, the society should have flexibility to arrange access in their discretion. I also note that since the kin placement broke down, counsel for the children has not had an opportunity to meet with the children to ascertain their views and preferences.

7. Conclusion

[51] I find that despite the fact that both of these parents love their children, neither is able to meet their needs at this time. The least disruptive plan that protects the children is an order that places them in the care and custody of the society.

[52] This Protection Application was commenced in February 2017 and there is still no finding with respect to the need of protection. As the children were in a kin placement there was less urgency in making a finding but now that the children are in the care of the society, a Statement of Agreed Facts should be circulated prior to the next court attendance to determine if a finding can be made on consent and then the court can deal with the more difficult issue of disposition.

[53] Order as follows:

1. Pursuant to subsection 51(6) of the Child and Family Services Act, the order of October 11, 2017 shall be varied placing the children, B. born [...], 2007, K. born [...], 2008, M. born [...], 2010, and S. born [...], 2014, in the temporary care and custody of the Catholic Children's Aid Society of Toronto;

2. Pursuant to subsection 51(6) of the Child and Family Services Act, the order of October 11, 2017 with respect to access shall be varied to an order that access shall be in the discretion of the Catholic Children's Aid Society of Toronto to include the right to suspend access;

3. Neither parent shall discuss with the children the court proceedings, their future living arrangements or speak negatively about their foster parents or about each other.

4. The Catholic Children's Aid Society of Toronto shall circulate a draft Statement of Agreed Facts with respect to finding of need of protection and the parents shall advise in writing of any changes, additions or deletions within 1 week of receipt of the Statement of Agreed Facts.

5. Adjourned to December 13, 2017 at 10:00 a.m.

Released: November 17, 2017

Signed: Justice Roselyn Zisman