WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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

Court: Ontario Court of Justice

Date: September 27, 2018

Court File No.: Toronto C52458/10

Between:

Children's Aid Society of Toronto Applicant

— AND —

S.A.T. Respondent Mother

Before: Justice Robert J. Spence

Motion heard on: September 26, 2018

Reasons for decision released on: September 27, 2018

Counsel

Ms. Katie Skinner — counsel for the applicant society

Ms. Karmel Sinclair — counsel for the respondent mother

Father: deceased

Decision

Robert J. Spence J.:

1: Nature of Proceeding

[1] This is a motion brought by the Children's Aid Society of Toronto ("Toronto society") to transfer the Protection Application ("Application") to the York Region Children's Aid Society ("York society").

[2] The mother is opposed to the motion, as she seeks to maintain the Application with the Toronto society, so that it can be determined by the court in Toronto.

[3] For the reasons which follow, I am granting the society's motion.

2: Background

[4] The mother has a history with the Catholic Children's Aid Society, Peel Children's Aid Society ("Peel society") and the York society, dating back to 2010.

[5] The child currently before the court and who is the subject of this Application, is I., born […], 2018 ("the child").

[6] Sometime in August 2018 the York society obtained a warrant to bring the child to a place of safety. York advised the Toronto society of this warrant, and the Toronto society located the whereabouts of the mother and the child. With the assistance of police, the Toronto society met with mother and took the child to a place of safety.

[7] Mother has four other children who range in age from 1 to 7 years, none of whom are in the mother's care.

[8] A worker from the Peel society swore an affidavit stating that the protection concerns for the child stem from mother's lengthy protection history, including concerns around drug use, limited parenting capacity, transiency and domestic violence and conflict.

[9] Since 2014, the York society has been involved with mother's other children.

[10] In January 2015, the York society brought then 5-month-old A. and then 2-year-old R. to a place of safety.

[11] That society subsequently obtained a parenting capacity assessment which stated that mother has "quite limited" capacity to parent, in the "bottom 10 of parenting, in a group of 1000".

[12] A. and R., the two older children, are now permanently placed with the maternal grandmother pursuant to a section 102 order under the Child and Youth Family Services Act ("Act").

[13] Mother subsequently hid from the York society the pregnancy of her child, N., who was born […], 2017. N. was born in the Peel region, so the Peel society assisted in bringing N. to a place of safety. The York society took carriage of the Protection Application regarding N., and that case remains before the court in York Region.

[14] I am advised that a settlement conference respecting N. is scheduled to take place in the Superior Court of Justice in York Region, on October 2, 2018.

[15] Because of mother's lengthy history of involvement with the York society, that society, with the cooperation of the Toronto society seeks to have the current Application transferred to the York society.

3: The Law

[16] The law governing the transfer of a proceeding to a different jurisdiction is set out at subsection 91(3) of the Act, which provides:

Transfer of proceeding

(3) Where the court is satisfied at any stage of a proceeding under this Part that there is a preponderance of convenience in favour of conducting it in another territorial jurisdiction, the court may order that the proceeding be transferred to that other territorial jurisdiction and be continued as if it had been commenced there.

[17] Case law has interpreted "preponderance of convenience" in this section as something which must be considered having regard to the best interests of the child. See Catholic Children's Aid Society of Toronto v. L.H., 2012 ONCJ 299, and Children's Aid Society of Toronto v. A.T., 2010 ONCJ 456.

[18] In this case, there are competing interests at stake.

4: Position of the Parties

4.1: Mother's Position

[19] Mother's position can be summarized as follows:

(1) Mother says it is irrelevant that her child N. is currently before the court in York Region, because her plan for the child is "not identical" to the plan for N. More specifically, mother states that the current plan for N. to be placed with M.L. would not work for the child, because it is mother's belief that M.L. would not be agreeable to assuming custody of, or an adoption of the child, as well as N.

(2) Mother says that she is now a resident of Toronto and she is planning to obtain permanent housing in Toronto and to "create a family based plan" for the child [in Toronto].

(3) More specifically, mother's plan is to live with a close family friend, N.S., who resides in Toronto and with whom the child would eventually come to live, if approved by the Toronto society or the court.

(4) The travel time for mother to go to the York society offices for visits with the child would be much greater if she were required to exercise supervised access visits at the York society offices, as compared to access visits at the Toronto society offices.

(5) Mother has community supports in Toronto. More specifically she says that she works with Keisha Greene at Blackcreek Community Services in Toronto. She states that if the Application were transferred to the York society, it would "greatly affect Ms. Greene's ability to work with me and the child, as well as attend court as a support."

(6) She would like to work with Milan and Associates on planning for reunification with the child.

4.2: Toronto Society's Position and Analysis

[20] In my discussion of the Toronto society's position, I will, where it is convenient to do so, refer to the mother's numbered points, as set out above.

[21] I turn first to mother's point (1), namely, that the current litigation in York Region is irrelevant as it involves a different child (N.) with a different plan. It appears that because the matter is scheduled for a settlement conference on October 2, 2018, the litigation is ongoing. It has not been settled. The court infers from this that mother is not consenting to whatever the York society is seeking. If there is a trial, much evidence will have to be led by the York society pertaining to the mother. This is evidence which will likely have considerable overlap with the evidence in the case of the child, particularly as these two children are separated in age by only one year.

[22] Mother states, without any corroboration that the M.L. family who is being assessed as a possible long-term caregiver for N., would not be agreeable to taking the child as well. There is no evidence of this. In fact, the society says that it would definitely canvass with M.L. the possibility of taking the child into the M.L. home, if M.L. is approved as the caregiver for N.

[23] In points (2) and (3), mother states she is now a resident of Toronto. This would be true only if the concept of residency is given a very broad interpretation. While mother provides an address where she is currently living on Lawrence Avenue in Toronto, in fact, it appears from the evidence that this address would be more accurately characterized as somewhere between short-term transiency and couch-surfing. It is far from an established address for mother. Mother implicitly acknowledges this, as discussed below.

[24] Mother says that she recently met with a long-time family friend N.S. who lives in Toronto and who would be able to provide a permanent place for mother and the child to live. She says that this family friend has known her for many years.

[25] However, in all the years that the York society has been involved with mother, that society has no records of mother ever having mentioned this person as a potential support for any of mother's other children.

[26] Furthermore, mother is not able to say that this residency plan has been in fact solidified. She deposes that she is in the process of putting together a plan whereby she and the child "may be able to reside with" N.S.

[27] The proposed plan with N.S. contains no real detail. N.S. has never contacted the York society or the Toronto society, stating her willingness to provide housing for the mother and for the child, and to be a support for mother.

[28] Despite her assertion that the plan may have some merit, mother has failed to ask N.S. to come to court on this motion to give evidence, or even to provide an affidavit to be filed with the court to express her own willingness and ability to participate in this plan in the meaningful way mother has suggested.

[29] The plan with N.S. appears to the court as something which the mother has hastily lurched toward at the last minute, without any real advance planning or consideration.

[30] From the court's perspective, N.S. is little more than a phantom, someone about whom no one, apart from what mother has said, has any knowledge whatsoever.

[31] I appreciate that the turnaround time for this motion may have been relatively short, but the court must proceed on the basis of the evidence placed before it.

[32] Point (4) is about mother's convenience. Mother's travel time to the society's office to exercise access, is a consideration, but a consideration only. It is a factor which does not rise to the same level as those factors which go directly to the best interests of the child.

[33] Points (5) and (6) both have to do with mother's ability to access resources in Toronto. There is no evidence before the court that her involvement with Blackcreek Community Services would have to come to an end, or that she would somehow be precluded from accessing Blackcreek's resources if the child was before the York Region courts, and with mother continuing to live in Toronto.

[34] With respect to Blackcreek, mother says that if the child was living outside of Toronto it would affect Ms. Greene's ability to work with mother. However, she does not say why this is the case, more specifically, why mother would be unable to access the Blackcreek resources to address her own personal issues while she is continuing to live in Toronto.

[35] Her plan to access resources through Milan and Associates seems to have not proceeded beyond the very initial planning stage. In any event, any such reunification plan which mother might wish to seek out with the assistance of Milan and Associates, would not be a viable plan until mother is at least able to demonstrate that she has begun to address the protection concerns which I referred to at the outset of these reasons.

[36] Given the current state of affairs, and the considerable history of protection concerns raised by the societies, mother would appear to be a long way off a viable reunification plan. This is particularly so when mother herself, in her affidavit filed in this motion does not even acknowledge the existence of those protection concerns, or the specific kind of work that she must engage in if she is to address the protection concerns which led to the removal of her other children from her care.

[37] Mother's affidavit talks about her supports from the paternal side of the family as well as the maternal side. However, the evidence to the contrary is that the paternal side of the family has had nothing to do with the mother for more than one year.

[38] Nor, does it appear, that the maternal grandmother who currently cares for R. and A. is at all interested in being a support for mother. The maternal grandmother was not even aware of the birth of the child until she was notified of that birth by the York society.

[39] Moreover, the mother's claim that she has multiple supports in the Toronto area has more of an appearance of wishful thinking for mother. The York society has deposed that in its four-year involvement with mother, never once did mother point the York society toward those supports.

[40] All of the foregoing would have been more than sufficient, in the court's view, to order a transfer to the York society. However, the fact that the York society has been the very society directly involved with mother for four years is perhaps the most compelling reason. It is that society's workers, the resources accessed by that society and the considerable factual data which that society has gathered over the years which makes the transfer order necessary.

[41] It is that society which is currently before the court on the mother's child N. And it is that society which has the evidence necessary to address the issues both in terms of N., as well as mother, for both the finding in need of protection and for disposition.

[42] Apart from the foregoing, there is a real risk that, in particular, issues surrounding the finding in need of protection would result in conflicting decisions if the mother were to be the respondent in two different courts. I recognize that there are two different children, but as I noted earlier, they are separated in age by only one year; and it appears quite likely from the evidence that much of the finding evidence pertaining to N. would also be relevant to the child.

5: Conclusion

[43] I do recognize that there may be some inconvenience to mother upon the transferring of the Application to the York society. In a more perfect child welfare world, the place where Applications are heard would be the most convenient places, not only for the child, but for the parents as well. However, that is simply not always possible. And where there are competing interests at stake, the convenience of the parent must give way to the best interests of the child.

[44] In considering all of the factors in these reasons, the court finds that the most compelling evidence in this motion favours a transfer of the Application to the York society and the courts in the York Region, as that is where the Application can better address what is in the child's best interests.

[45] This Application shall forthwith be transferred to the Superior Court of Justice, 50 Eagle Street West in Newmarket. The Application will be made returnable on October 2, 2018 at 9:30 a.m., together with the Application in which N. is the subject child.

Released: September 27, 2018

Signed: Justice Robert J. Spence

Footnotes

[1] On the return of this motion, mother's position was that because of the relatively short turnaround for the motion and the required preparation of evidence by her and her counsel, that her evidence was not as complete as it might otherwise have been. In the interests of assisting mother to ensure that all relevant evidence was placed before the court, I offered mother the opportunity to give her additional evidence in court, orally. However, because the society had already filed its reply affidavit and the society would have no further opportunity for reply to that oral testimony, I ruled that the society would be at liberty to cross-examine mother on her oral testimony, should it choose to do so. Mother declined the opportunity to testify.

[2] Particularly the evidence pertaining to the finding in need of protection.

[3] Or an adoptive family.

[4] As well as the perspective of both the Toronto and York societies.

[5] This motion was originally made returnable on September 18, 2018. However, it was adjourned at the mother's request to September 26, 2018.

[6] I use the word "may" because it is far from clear in mother's evidence, as discussed, that her plan to live in Toronto has crystallized or that it is even viable.