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

Ontario Court of Justice

Date: 2018-12-19

Court File No.: Brampton 09-20138

Between:

The Children's Aid Society of the Region of Peel, Applicant

— AND —

M.J., Respondent/Mother

D.L.R.D., Respondent/Father

Before: Justice Lise S. Parent

Heard on: December 11th, 2018

Reasons for Judgment released on: December 19th, 2018

Counsel

• A. Rozario — counsel for the applicant Society
• A. Baker — counsel for the respondent mother
• A. Feeley O'Brien — counsel for the respondent father

PARENT J.:

Proceeding Before the Court

[1] This is a care and custody motion in respect of the child, D.D., born XX, XX, 2012.

[2] The Society seeks an order placing the child D.D. in the temporary care and custody of the father subject to the supervision by the Children's Aid Society of Peel ("the Society") and subject to the following terms and conditions:

1. The child, D.D., born XX, XX, 2012, shall be placed in the temporary care and custody of his father, D.L.R.D., subject to the supervision of the Children's Aid Society of the Region of Peel, pursuant to the following terms and conditions:

   a) D.L.R.D. shall ensure that the child, D.D.'s, basic needs including medical and emotional needs are being met.

   b) D.L.R.D. shall allow the Society to conduct announced and unannounced home visits, and meet with the child for privacy visits.

   c) D.L.R.D. shall sign consents with relevant service providers for the purpose of information sharing between the Society and the relevant service providers.

   d) D.L.R.D. shall ensure that the child, D.D., is not exposed to adult conflict.

[3] The notice of motion filed by the Society further seeks an order that access between D.D. and the mother be at the discretion of the Society in consultation with the father, the maternal great-aunt and uncle.

[4] The Society seeks this order pending the determination of their Protection Application, filed on August 24th, 2018 seeking statutory findings pursuant to section 90(2) of the Child, Youth and Family Services Act, 2017 S.O. 2017, c.14, Sch. 1 ("CYFSA"); a finding in need of protection pursuant to sections 74(2)(a)(i)(ii), 74(2)(b)(i)(ii) and 74(2)(h), and an order that D.D. be placed in the care of the father subject to the supervision of the Society for a six (6) month period with access to the mother and at the Society's discretion in consultation with the father and the maternal great aunt and uncle pursuant to section 101(1) 1.

[5] Materials filed by all parties do not dispute that on July 19th, 2018, D.D. was located by the Peel Regional Police, following receiving a call from the mother that D.D. was missing, in a ditch with significant injuries.

[6] Due to his injuries, D.D. was taken to hospital and listed in life threatening but stable condition.

[7] The mother's ex-partner, D.S. was arrested for attempted murder, aggravated assault and other charges relating to this incident. At the time of this incident, D.D. was residing with his mother.

[8] Following his initial hospitalization, D.D. was placed in Holland Bloorview Kids Rehabilitation facility. D.D. was discharged on October 25th, 2018.

[9] On August 29th, 2018, following the filing by the Society of their Protection Application on August 24th, 2018, Clay, J. granted a temporary without prejudice order placing D.D. in the care of his father subject to the supervision of the Society on terms and conditions.

[10] The order also provided that access between D.D. and his mother be at the Society's discretion and in consultation with the father and the maternal great-aunt and uncle.

Position and Evidence of the Society

[11] The Society, in support of the order requested in the Protection Application and notice of motion seeking placement of D.D. with his father, filed the affidavit of the involved child protection worker at the time, Ms. Jessica Makino. This affidavit is sworn August 23rd, 2018 and is located at Tab 3, Volume 3 of the Continuing Record.

[12] A review of this affidavit provides details of the Society's concerns to be as follows:

(i) Historical concerns, between the period of November 19th, 2009 to May 18th, 2011 and August 28th, 2015 to May 16th, 2017, regarding the mother's limited caregiving skills, substance abuse, mental health and neglect initially limited to a sibling of D.D. and thereafter D.D. as to basic needs;

(ii) Historical concerns, between the period of August 28th, 2015 to May 16th, 2017, regarding domestic conflict between D.D.'s parents;

(iii) The "on and off" relationship between the mother and D.S. which involved D.D. being exposed to domestic conflict, use of illegal substances by D.S. while in the home with D.D., the mother's exposure to and reliance on D.S. in a caregiving role towards D.D. despite her belief that she did not trust D.S. and the denial by the mother that bail conditions existed on D.S. which restricted him from being around her and her home;

(iv) The incident of domestic violence on July 18th and 19th, 2018 between the mother and D.S.;

(v) The mother's lack of supervision of D.D., namely on July 19th, 2018, between the hours of 2:00 a.m., when she put D.D. to bed, and 6:00 a.m. when she woke up and discovered the door of her residence unlocked and D.D. missing;

(vi) The lack of the mother's ability to following through with basic medical needs of D.D. such as immunizations and regular check-ups; and

(vii) Statements made by D.S. that he was a step-father to D.D. and had been residing with the mother in her home until the July 19th, 2018 incident, that the mother was working at a gentleman's club and would engage in sexual favours for money, that the mother was using illegal substances, specifically cocaine, and that at times, he had to find alternative care for D.D. as the mother had not returned home.

[13] On November 2nd, 2018, the Society filed a supplemental affidavit sworn November 1st, 2018 by Ms. Tamoy Thompson, the child protection worker involved with D.D. This affidavit is located at Tab 9, Volume 3 of the Continuing Record.

[14] A review of this affidavit details the evidence supporting the Society's ongoing concerns which can be summarized as follows:

(i) Ongoing concerns regarding the mother's mental health and ability to care for D.D. based on information received from a medical professional involved with the mother that (a) she was prescribed anti-depressants for a mild depressive disorder but did not attend a follow up appointment within the 4 to 6 weeks as requested, and (b) was providing inconsistent care to D.D., specifically had not attended to updating D.D.'s immunization;

(ii) Concerns that the mother was providing mixed messages to D.D. as to where he would be residing, namely in her care or the father's care, following his discharge from the rehabilitation facility; and

(iii) Concern regarding the mother's mental health and potential impact on her ability to care for D.D.

[15] The affidavit further details the progress made by D.D., the participation by both parents in conferences regarding D.D.'s treatment plan, and the parents' adherence to the alternating daily visits schedule with D.D. so as to minimize the conflict between them and the exposure of D.D. to this any potential conflict.

[16] The affidavit further provides details regarding the father's home and its suitability to address D.D.'s needs and the new school D.D. was to attend following his discharge from the rehabilitation facility.

[17] On December 7th, 2018, the Society filed an affidavit sworn December 6th, 2018 by Ms. Thomson. The affidavit is located at Tab 9, Volume 4 of the Continuing Record.

[18] A review of this affidavit confirms that this affidavit was filed in response to the mother's and the father's affidavits. The affidavit details the evidence supporting the Society's ongoing concerns which can be summarized as follows:

(i) The contradictory evidence of the mother regarding the true nature of her relationship with D.S. in light of her admission to the police of the existence of this relationship;

(ii) The denial of the mother regarding D.S.'s prior criminal charges and potential aggressive behaviour in light of the evidence that she was interviewed during the police investigation associated with D.S.'s prior attempted murder charge;

(iii) The mother's conclusion that since D.S. was not detained following the attempted murder charge, the case against him was weak;

(iv) The mother allowing D.D. to be exposed to and/or cared for by D.S. in her home despite her belief that D.S. was using drugs;

(v) The mother's plan for D.D., which includes community supports and resources, who may not be aware of the Society's protection concerns and/or history of involvement;

(vi) The mother's position in not wanting D.D. to be aware that he was hurt while in her care, but rather that the message be that she continues to fight for D.D. and D.D. will be back living with her soon;

(vii) An absence in the mother's plan that she recognizes the assistance D.D. requires in his daily physical/emotional and educational needs; and

(viii) The reliance by the mother of negative drug tests without providing her consent to the Society to verify the context and forensic methodology of this testing so as to determine authenticity.

[19] The Society submits that the initial and continued existence of their concerns regarding the mother's mental health, judgment, insight and ability to address all of D.D.'s needs does not support a return of D.D. to her care, with or without terms of supervision.

[20] The Society submits that given the plan of care proposed by the father, which includes resources for D.D. to address all of his needs, the evidence supports a temporary placement of D.D. with the father.

Position and Evidence of the Father

[21] A review of the file confirms that the father, D.L.R.D. filed, on November 2nd, 2018, an Answer to the Society's Protection Application. In this document, the father confirms that he is seeking that D.D. be placed in his care.

[22] D.L.R.D. was represented by counsel at the hearing. The father filed an affidavit within these proceedings namely, an affidavit sworn December 2nd, 2018 located at Tab 8, Volume 4 of the Continuing Record.

[23] The summary of the submissions by counsel and the evidence provided by D.L.R.D. is as follows:

Concerns regarding the mother:

(i) During his relationship with the mother, there were numerous fights which he attributes to her short temper;

(ii) During his relationship with the mother and following separation, he was involved in the care of D.D. equally;

(iii) Following his separation from the mother, D.D. was in his care on an equal time sharing arrangement;

(iv) The mother was involved in a relationship with D.S. for the time leading up to the incident of July 19th, 2018;

(v) He received information from the police during the search for D.D. on July 19th, 2018 and the subsequent investigation which described the mother's home as being covered in dog feces and empty alcohol bottles;

(vi) That despite the incident of July 19th, 2018, the mother will continue her relationship with D.S. thereby expose D.D. to D.S. and she will always put her needs ahead of D.D.'s;

(vii) During his relationship with the mother, she used recreational drugs, including cocaine and his belief that she continues to consume;

(viii) Information disclosed to him by D.D. that the mother would leave D.D. unsupervised frequently;

(ix) His belief that the mother restricted D.D. from telling him of the existence of any problems; and

(x) Ongoing concerns of the mother's behaviour towards D.D. during access visits and telephone contact.

Plan of care for D.D.

(i) He has the ability to provide D.D. with an appropriate home and ensure that all of D.D.'s medical, education and personal needs are met;

(ii) D.D. would have the support of the father's fiancée and other members on the paternal side;

(iii) D.D. will reside in a family environment which includes a younger half-sibling;

(iv) He is prepared to continue to ensure contact between D.D. and the mother; and

(v) He is prepared and committed to working with all professionals and agencies, including the Children's Aid Society of the Region of Peel, to ensure all of D.D.'s needs are met.

[24] It is on this basis that counsel for D.L.R.D. confirms her client's consent to the order requested by the Society to place D.D. in his care under their supervision.

Position and Evidence of the Mother

[25] The mother, M.J., was represented by counsel at the hearing. Counsel submits that the mother opposes the request of the Society and the father and that his client seeks the return of D.D. to her care.

[26] The mother further submits that should D.D. be returned to her care, she will continue to access services provided by the Society and the community so as to address all of D.D.'s needs. Counsel submits that his client is prepared to accept and respect any conditions attached with this placement should this order be granted.

[27] A review of the file confirms that the mother filed an Answer on November 16th, 2018 seeking the return of D.D. to her care. The Answer filed seeks the dismissal of the Society's Protection Application and in the alternative, placement of D.D. in her care with or without terms of supervision.

[28] The mother's Answer also seeks, as an alternative should D.D. not be placed in her care, unsupervised and increased access.

[29] A review of the file also reveals that the mother has filed four (4) affidavits within these proceedings, namely her affidavit sworn December 2nd, 2018 located at Tab 4, Volume 4 of the Continuing Record; an affidavit from M.J.'s step-mother sworn November 26th, 2018 located at Tab 5, Volume 4 of the Continuing Record; an affidavit from M.J.'s pastor sworn November 26th, 2018 located at Tab 6, Volume 4 of the Continuing Record; and an affidavit from M.J.'s paternal aunt sworn November 26th, 2018 located at Tab 7, Volume 4 of the Continuing Record.

[30] The submissions made and the evidence filed on behalf of the mother are that she is prepared and able to resume caring for D.D. A summary of the submissions and the evidence provided in support of her position are as follows:

(i) Her relationship with D.L.R.D. progressed from a loving and supporting one to one whereby D.L.R.D. was controlling and abusive towards her;

(ii) Her relationship with D.L.R.D. has been volatile and conflictual when together as a couple and when separated;

(iii) D.D. has always been in her continuous care since her separation with D.L.R.D. and prior to the involvement of the Society;

(iv) She has been the parent primarily responsible for all the needs of D.D., including obtaining a legal exemption for D.D. from immunization given her conscious decision on this issue and to ensure that documentation supports her position;

(v) She acknowledges using drugs and not being in a position to parent D.D.'s older sibling which she voluntarily placed with kin;

(vi) She acknowledges being in a relationship with D.S. however, not in a common law relationship;

(vii) She ended her relationship with D.S. at the end of 2017 however maintained a friendship, which included allowing him to stay in her home in her basement and being sober, even if she felt D.S.'s behaviour had changed and he may be using drugs;

(viii) She was aware of the criminal history of D.S. and was not shocked by this information;

(ix) She has never witnessed any aggressive or threatening behaviour by D.S. throughout their relationship;

(x) She acknowledges that D.S. spent a fair amount of time with D.D. however never did she witness any concerning behaviours;

(xi) When arguments arose between herself and D.S., his behaviour only escalated to stomping his feet, raising his voice or slamming doors;

(xii) She believes and accepts that D.S. is responsible for the injuries to D.D. She has not had and does not want any contact with D.S. since the incident of July 19th, 2018;

(xiii) She recognizes, in hindsight, that she should have ended her association with D.S. earlier;

(xiv) The incident of July 19th, 2018 has been profoundly traumatic for her. Accordingly, she has accessed and will continue to access community and family supports;

(xv) She has concerns about D.L.R.D. being able to care for D.D. given his historical and ongoing use of drugs, his criminal record, his actions of domestic violence towards her and his lack of parenting abilities;

(xvi) She is prepared to co-operate with the Society and all service provides;

(xvii) She has demonstrated an ability to co-operate with the Society as she did so during their prior involvement with her;

(xviii) She has relocated to a new residence outside of the residential complex where the July 19th, 2018 incident occurred;

(xix) The new residence is appropriate for D.D.'s needs;

(xx) She is committed to only having herself and D.D. reside in this new residence;

(xxi) She has accessed community and educational facilities for D.D. which are near her new residence and appropriate to continue to address his treatment needs;

(xxii) She is committed to caring for D.D. and will ensure all of his needs are met;

(xxiii) She acknowledges experiencing periods of anxiety and depressions and is prepared to continue to address these issues in her ongoing counselling; and

(xxiv) She has a very close and special bond with D.D. Her access visits have been going very well except that D.D. is unhappy and expresses his wish to return to her care at the end of their time together.

[31] Counsel on behalf of the mother submits that the Society has never really considered looking at M.J. as a caregiver to D.D. following the incident of July 19th, 2018. Counsel submits that all efforts have been put towards the father, D.L.R.D.

[32] Counsel submits that the evidence before the court is heavily biased towards the positive of D.L.R.D. thereby minimizing areas of concerns such as his prior criminal history, drug use and violent behaviour in order to advance a position seeking the placement of D.D. in his care.

[33] Counsel further submits that the Society is relying on hearsay evidence to support the order they are requesting.

[34] Counsel submits that the concerns of the Society founded in their earlier involvement with M.J. do not support a position of not returning D.D. to her care given that their filed was closed in 2017 following a lengthy investigation while D.D. did remain in her care.

[35] Counsel submits that the concerns of the Society regarding her judgment has also been addressed given that M.J. recognizes and takes ownership of her lack of judgment regarding D.S.

[36] Furthermore, counsel submits that D.S. is incarcerated therefore unable to have contact with M.J.

[37] Counsel submits that the record is clear that M.J. did not harm D.D.

[38] For all these reasons, counsel submits that the objective of the CYFSA is to ensure the best interest of a child and not to be punitive towards a parent. Counsel submits that M.J., has always demonstrated her commitment to D.D. He submits that the Society should have no concerns regarding her parenting abilities and that all concerns resulting in the Society's initial and current involvement with her and D.D. have been addressed.

[39] Accordingly, counsel submits that the evidence supports the return of D.D. to his client's care, both temporarily and permanently.

Legislative Framework

[40] Section 94(2) of the Child, Youth and Family Services Act, 2017 ("CYFSA") provides as follows:

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 a place of temporary detention, of open or of secure custody.

[41] Section 94(2) places the onus of proof on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that, if D.D. is returned to the care of the mother, who had care prior to the commencement of these proceedings, it is more probable than not that D.D. will suffer harm. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2773 (Ont. Sup. Ct.)

[42] Section 94(10) of the CYFSA permits the court to "… admit and act on evidence that the court considers credible and trustworthy in the circumstances."

[43] Section 94(2) also places the onus of proof on the Society to establish that D.D. cannot be adequately protected by any conditions attached to an order returning the child to the care of the mother.

[44] In summary, section 94 requires a two-part test to be met prior to the Society's request for an order placing D.D. in the temporary care of the father can be granted. See: Children's Aid Society of Ottawa-Carleton v. T.

[45] The burden of the Society at this stage does not go as high as showing that, on the balance of probabilities, there is an actual risk to the child in the parent's care. See: CCAS of Toronto v. M.L.R., 2011 ONCJ 652. The onus is not a difficult one for the Society to meet at this temporary stage. See: Children's Aid Society of Dufferin County v. A.T., 2011 ONCJ 52

[46] If the Society discharges its burden of proof under section 94(2) (a) and (b) such that D.D. cannot be returned to the care of the mother, the court must then turn to alternative plans by other persons to determine if a placement, subject to the Society's supervision and other terms, does not place D.D. at risk.

[47] This alternative placement option must be considered prior to requesting an order placing the child in the care of the Society.

[48] Section 1(2) of the CYFSA requires that a court choose the order that is the least disruptive placement consistent with adequate protection of the child. See: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448

[49] The degree of intrusiveness of the Society's intervention and the temporary protection ordered by the court should be proportionate to the degree of risk. See: CCAS of Toronto v. J.O., 2012 ONCJ 269

[50] The issue of access must be considered by the court within the criteria of section 105(1) of the CYFSA, which provides as follows:

"Where an order is made under paragraph 1 or 2 of subsection 101(1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child's best interests."

Analysis - Placement

[51] I am being presented with two plans at this stage of the proceedings, namely the return of D.D. to the mother and or the placement of D.D. with the father.

[52] The Society's plan, supported by the father, entails that D.D.'s placement be subject to the Society's supervision and on such reasonable terms and conditions which are appropriate in these circumstances.

[53] The mother's plan also entails that D.D.'s placement be with her and as an alternative, also be subject to the Society's supervision and on such reasonable terms and conditions which are appropriate in these circumstances.

[54] Neither the Society nor the parties have submitted a plan or any evidence whereby D.D. could be cared for by a relative, a member of the extended family or community on a temporary basis.

[55] After a review of the evidence presented and upon hearing submissions from all parties, I am granting the Society's motion for the following reasons.

[56] The evidence of all parties details historic and ongoing concerns regarding the mother's and the father's conflictual relationship and its impact on D.D.; drug-use, the ability to parent, insight, and/or mental health.

[57] The mother and the father's own evidence supports that they and continue to have a problematic relationship, which also includes concerns about the other's ability to parent. The difference is that each parent exclusively blames the other.

[58] I find that the father's evidence is almost exclusively an acceptance of the Society's evidence. The evidence in support of his statement that he was in a shared parenting arrangement following his separation is minimal.

[59] Although, he states that he was an involved parent, he claims that M.J. did not let him be involved to the degree he wanted with D.D. Yet, there is an absence of evidence regarding any independent steps he took to rectify this situation or, given the concerns noted in his affidavit, seek to obtain custody of D.D. and/or protect his rights as a parent.

[60] I find that the mother's evidence that she was exclusively the primary parent to D.D. also problematic. The evidence presented does satisfy me that D.L.R.D. was involved with D.D., at least as an access parent.

[61] I find that, prior to the Society's involvement, both M.J. and D.L.R.D. were involved in a high conflict relationship which was primarily focused on each of them attributing blame to the other rather than acknowledge their participation in creating this relationship.

[62] However, the nature of the relationship is not why this family became recently re-involved with the Society. It is not disputed that on July 19th, 2018, D.D. suffered significant trauma at the hands of D.S. There is no dispute that this incident changed the course of D.D.'s life, but also that of M.J., D.L.R.D. and their respective family units.

[63] I accept that both M.J. and D.L.R.D. love D.D. deeply. I further accept that they are each doing their best to address the needs of their child following the significant trauma he has suffered.

[64] The granting of the Society's motion, which results in the denial of the mother's request to have D.D. returned to her care, is based on the clear evidence that the mother displayed such a significant lack of judgment in maintaining a relationship with D.S. that considerable harm came to D.D. while under her care.

[65] Counsel for the mother submitted that his client acknowledges and accepts that she displayed an error in judgment in permitting D.S. to be involved in her life, even in a non-romantic manner. Counsel submits however that the threshold of risk has been eliminated as D.S. can no longer have contact with D.D. given that he is incarcerated and M.J. has made it clear that she wishes no contact with him under any circumstances.

[66] The evidence presented, at this stage, does not satisfy me that the lack of judgment of the mother was isolated and can be seen as being limited to her decision to maintain a relationship with D.S.

[67] I find that the evidence before me establishes historical concerns regarding the mother's mental health and decision making as it relates to the care of her children. These concerns resulted in the Society having prior involvement with M.J. when she was in a parenting position. The mental health concerns and involvement of the Society are acknowledged by M.J., but not to the degree that these concerns prevent her from parenting.

[68] I accept that the mother has re-engaged with community services in order to assist her with her feelings regarding the July 19th, 2018 incident, the injuries suffered by D.D. and her struggles with anxiety and depression. However, I find that the evidence presented regarding this involvement to date does not satisfy me that these efforts have resulted in her achieving a level whereby she can demonstrate a consistent ability to make sound and appropriate decisions as a parent with primary responsibility of D.D., who is now a child with significant special needs.

[69] A more complete assessment of the mother's psychiatric needs, given her history and the trauma she acknowledges she has and continues to suffer, may be required in order to address the concern regarding her judgment and its impact on her parenting abilities and decision-making.

[70] For these reasons, I also find that the Society's evidence, which I find to be credible and trustworthy, establishes that D.D. cannot be adequately protected if returned to the care of the mother under terms and conditions.

[71] All of this evidence does leads me to conclude that D.D. is likely to suffer harm should a return to the mother, with or without the Society's supervision and on reasonable terms and conditions, be ordered.

[72] Accordingly, I find that the evidence presented by the Society regarding the mother satisfies me that the Society has met its burden. Accordingly, the order requested by the mother is denied.

[73] The denial of the mother's request for a return of D.D. to her care requires me to consider the order sought by the Society pursuant to section 94(2)(c) of the CYFSA, namely the placement of D.D. with the father under the Society's supervision and with terms and conditions.

[74] There is no dispute that the father is consenting to the placement of D.D. in his care.

[75] The father has filed evidence of his plan, as noted. It is not disputed that D.D. has been in the father's care since his discharge from the rehabilitation facility on October 25th, 2018.

[76] The Society and the father have provided evidence that D.L.R.D. has ensured that all of D.D's needs are met. The evidence presented satisfies me that D.D. is adapting well in his father's care and that his father is appropriately addressing the challenges faced by D.D. as he continues in his intensive treatment plan and transitions into a new school, a new residence and a new family environment.

[77] In order for me to conclude that D.D. could be adequately protected if placed in the care of a person, other than the person captured by section 94(2)(a) or (b), I must be satisfied that the supervision and the conditions will be adhered to in a meaningful manner.

[78] The evidence before me demonstrates clearly the willingness of the father to support D.D. in all areas.

[79] I am further satisfied that the concerns expressed by the Society regarding the conflict between the father and the mother and the concerns of the mother regarding the father's ability to parent will be addressed under the order requested by the Society thereby ensuring that D.D. is adequately protected while in the father's care.

[80] The evidence supports the determination that the father will abide by the terms and conditions requested by the Society.

Analysis – Access

[81] The request by the mother is to have unsupervised access to D.D. based on a liberal schedule to include visits occurring in her home, at least three (3) weekends per month and overnight from Friday to Sunday.

[82] In his submissions, counsel on behalf of the mother confirms his client's position, as contained in paragraph 45 of her affidavit, that M.J. is prepared to have this access occur over a staggered and graduated schedule.

[83] The Society, as contained in its motion, seeks an order that access between D.D. and his mother continue to be supervised and at their discretion in consultation with the father, and a maternal great-aunt and uncle.

[84] Given my determination that D.D. is likely to suffer harm given my concerns regarding the mother's ability to exercise sound and appropriate judgment and the potential impact of this on her ability to address D.D.'s needs, I find that the evidence does not support, at this time, an order for unsupervised access as requested on behalf of the mother.

[85] I further find that an order requiring a specified access schedule is not appropriate at this time given that D.D. continues to follow an intensive treatment plan, is transitioning into a new school and residential arrangement. There is evidence before me that these steps have resulted in D.D. showing signs of fatigue during this period of transition. Access at the discretion of the Society, which the evidence demonstrates has resulted in positive access between the mother and D.D., should therefore continue.

Order

[86] For the reasons stated above, the motion of the Society is granted.

[87] Accordingly, the following order is granted:

(a) In accordance with paragraphs 1(a) to (d) inclusive of the Notice of Motion dated August 23rd, 2018 placing D.D. in the temporary care and custody of his father pursuant to the supervision of the Children's Aid Society of the Region of Peel subject to terms and conditions pursuant to section 94(2)(c) of the CYFSA; and

(b) In accordance with paragraph 2 of the Notice of Motion dated August 23rd, 2018, such that access to the mother to D.D. shall be supervised and at the discretion of the Children's Aid Society of the Region of Peel in consultation with the father and the maternal great aunt and uncle.

[88] The matter will remain as scheduled TBST on January 16th, 2019 at 9:30 a.m. in Courtroom #208 on the terms outlined in my endorsement dated December 11th, 2018.

Released: December 19th, 2018

Justice L.S. Parent