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.
(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.
(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.
ONTARIO COURT OF JUSTICE
CITATION: Catholic Children’s Aid Society of Toronto v. I.A., 2019 ONCJ 49
DATE: 2019 01 30
COURT FILE No.: Toronto C91615/16
BETWEEN:
CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO Applicant
— AND —
I.A. Respondent (mother)
- AND -
B.A. Respondent (maternal grandmother)
Before Justice Robert J. Spence
Heard on January 21, 22 and 23, 2019
Reasons for Judgment released on January 30, 2019
Ms. Fatima Husain ......................................................... counsel for the applicant society Mr. Alexei Goudimenko ........................................... counsel for the respondent mother Mr. David Miller .............................. counsel for the respondent maternal grandmother No male parent
R.J. Spence J.:
1: INTRODUCTION
[1] This is a status review application brought by the Catholic Children’s Aid Society of Toronto (“society”) in respect of the child B., born […], 2016.
[2] At the outset of trial I received a signed Statement of Agreed Facts wherein the parties consented to a final custody order pursuant to subsection 102(1) of the Child, Youth and Family Services Act (“Act”) in favour of the maternal grandmother (“grandmother”). The court made that order, as well as the necessary statutory findings pursuant to subsection 90(2) of the Act.
[3] Accordingly, this trial was about two issues:
(1) What access, if any, should the mother have to the child; and
(2) Should the court make a restraining order against the mother in favour of the child.
2: POSITION OF THE PARTIES
2.1: THE SOCIETY’S POSITION
[4] The society seeks an order that the mother shall not have any access whatsoever to B. Should the court order a form of access/contact (“access”) that access should not be in-person but, instead, be limited to cards, pictures and letters. Should the court go beyond this form of access and, for example, permit a form of telephone or Skype access, it should be limited as well.
[5] In addition, the society seeks a restraining order against the mother in order to protect the child from harm. The society alleges that the mother is mentally unstable and potentially dangerous and that the only way the child can be adequately protected is through a restraining order, as that would afford a form of police protection, not otherwise available.
2.2: THE GRANDMOTHER’S POSITION
[6] The grandmother does not believe that in-person access is in B.’s best interests. She does not wish to be given a discretion to decide whether, and in what circumstances, the mother ought to be afforded in-person access with B. The grandmother is not opposed to access which takes the form of cards, pictures and letters.
[7] The grandmother is opposed to the making of a restraining order. In fact, the grandmother argues that the court has no jurisdiction to make a restraining order in the particular circumstances of this case.
2.3: THE MOTHER’S POSITION
[8] Mother seeks in-person access. She acknowledges that any such access should be supervised and she is proposing that the supervisor of the in-person access would be Brayden Supervision Services (“Brayden”).
[9] Mother is proposing that the supervised access occur once each week or, in the alternative, at least once each month.
[10] Mother is prepared to pay the cost for the supervised access services provided by Brayden.[^1]
[11] In the further alternative, mother seeks an access order that would permit her to send B. cards and pictures and letters.
[12] Mother is opposed to the society’s request for a restraining order.
3: BACKGROUND
[13] Mother has a long-standing history of mental illness, including a diagnosis of schizoaffective disorder and psychosis. According to the grandmother, the mother has suffered from this illness since she was a teenager. The mother has had many years of treatment, including both voluntary and involuntary in-patient treatment. It appears that for at least the past 15 years she has been admitted as an involuntary patient at a psychiatric hospital on many occasions.
[14] The mother’s illness manifests itself in both auditory as well as visual hallucinations. This causes her to act impulsively on occasion. Her impulsive actions are sometimes very aggressive and violent. Her violence has been directed both to the grandmother as well as to the mother’s sister, M.
[15] This aggressive and violent behaviour can occur whether or not mother is taking the medications that have been prescribed to her over the years.
[16] In April 2016 when the mother was pregnant she tried to choke the grandmother. The grandmother called the police who subsequently charged her with assault. She was initially taken to jail and then to Humber River Regional Hospital. It appears that the Crown later withdrew that charge.
[17] Just prior to B.’s birth, mother again became assaultive toward the grandmother. She had not been compliant with her medications at the time of this assault. The grandmother reported this incident to the public health nurse who, in turn, called the police. The police took the mother to Sunnybrook Hospital (“Sunnybrook”).
[18] While the mother was at Sunnybrook, she assaulted a nurse and she was charged criminally.
[19] The society had previously become involved with mother on an informal basis in or about June 2016 when it learned that mother was pregnant. Information about mother’s mental health had been conveyed by Sunnybrook to the society.
[20] The society had extensive meetings and discussions with mother and other family members and support persons in the months from June 2016 until B.’s birth. During this period of time the society was able to gain significant insight and understanding into mother’s serious mental health problems and diagnosis.
[21] When the society became aware around mid-September 2016 that mother was back in Sunnybrook, a society worker attended a meeting at the hospital. There were a number of people present at the meeting, including mother’s psychiatrist, obstetrics staff from the labour and delivery department and the mental health social worker.
[22] The society worker was advised that the hospital plan was to induce mother on September 19, 2016.
[23] On September 16, 2016 the society sent a letter of apprehension to Sunnybrook, advising the hospital that it planned to apprehend the baby immediately upon birth. The society also advised the hospital that mother was to have no contact with the baby. However, on September 19th, the society did approve a supervised access visit between the grandmother, the mother’s sister, M., and the mother.
[24] B. was born on September 20, 2016.
[25] The society worker attended at the hospital immediately following the birth. The worker supervised a visit with the mother, the grandmother and the mother’s sister. The mother was permitted to hold B. in her arms, while B. was wrapped in a blanket. The visit lasted for about one hour.
[26] On September 21st, mother was transferred to the in-patient mental health unit at Sunnybrook.
[27] The nurse who mother had assaulted while at Sunnybrook decided to press assault charges against mother. As a result, the police attended the hospital and took mother into police custody. The police subsequently brought mother to Vanier Centre for Women (“Vanier”) where she awaited transport to a mental health facility.
[28] On September 23rd, B. was ready to be discharged from Sunnybrook. The society worker attended at the hospital and arranged to transport B. to a foster home.
[29] The society worker subsequently visited with mother at Vanier in October 2016. The worker observed the mother to be disoriented, believing that B. was still in hospital, and unaware that he had been apprehended and taken into foster care.
[30] On September 26, 2016, Justice Stanley Sherr made a temporary without prejudice order placing B. in the society’s care, with access to B. by family members to be in the society’s discretion.
[31] Justice Sherr noted in his endorsement on that day that the society was intending to delay mother’s access until she had stabilized on her medication.
[32] Grandmother indicated a willingness to plan for B., and the society then began its kin plan assessment of the grandmother.[^2]
[33] On January 16, 2017, Justice Melanie Sager made a temporary access order in favour of the mother. The visits were to be one hour per week, supervised by the society. In the first week the mother’s visit would be supervised by the society without anyone else being present. On the alternating weeks, the society would supervise the visits, which would occur in the presence of the grandmother.
[34] I propose to provide some greater detail about the subsequent access visits later in these reasons. However, at this point I will simply note that following Justice Sager’s order, there were only four supervised access visits between B. and his mother. Those visits were each of one-hour in duration and they occurred on January 25, February 1, February 8 and February 22, 2017.
[35] As a result of a violent incident which occurred at the February 22nd visit, the society suspended all further access to mother. In doing so, the society relied on Justice Sager’s January 16, 2017 order which gave the society discretion to
Suspend the mother’s access if she behaves inappropriately or in a manner that puts the child in danger.
[36] The exact details of what occurred on February 22nd are in dispute. However, what is not in dispute is that mother behaved inappropriately, including assaulting one of the society workers at the end of the supervised visit.
[37] The mother brought a motion on May 4, 2017, seeking to reinstate her access. Justice Sager dismissed the mother’s motion.
[38] Accordingly, mother has not had any contact with B. since February 22, 2017, a period of almost two years.
[39] On July 27, 2017, Justice Sager made an order adding the grandmother as a party to the society’s protection application.
[40] The society began to gradually expand grandmother’s access, so that by December 20, 2017 the society was able to place B. with the grandmother in her home on an extended visit. On January 10, 2018, the society’s Kinship Department completed its assessment of the grandmother, who was approved as a Kinship home for B.
[41] In the meantime, on January 13, 2017 the mother had been found to be not criminally responsible on account of her mental disorder for the assault which she inflicted on the nurse at Sunnybrook. On April 28, 2017, the Ontario Review Board (“ORB”) ordered that the mother be detained in the General Forensic Unit of the Centre for Addiction & Mental Health, Toronto (“CAMH”).[^3]
[42] The mother’s assault charge arising from the incident at the society’s offices on February 22, 2017 was also subsequently resolved by a finding that mother was not criminally responsible due to her mental disorder.[^4]
[43] On January 15, 2018, Justice Sager made a finding pursuant to a Statement of Agreed Facts that B. was a child in need of protection pursuant to sections 37(2)(b)(i) and (ii) and 37(2)(i) of the Child and Family Services Act.[^5]
[44] Justice Sager also ordered that B. be placed with the grandmother on a nine-month supervision order, with specified terms and conditions. Among those terms was a provision that the grandmother not allow any contact between the mother and B.[^6]
[45] On or about July 3, 2018 the mother went missing from her residence. She was found a few days later and because she was in a state of confusion, she was taken to the hospital. She remained in hospital for about one and a half months before she was then discharged.
[46] On October 10, 2018, while mother was in the community, she assaulted a woman at a mall. The incident was serious enough that security had to be called in to assist. When security personnel attended, mother apparently assaulted that individual as well. It appears that at the time of the assault, the mother was experiencing hallucinations.
[47] According to Dr. Karen Ng, who is mother’s in-patient psychiatrist at CAMH, mother was taken from the mall to College Park for arraignment on the assault charge which followed the incident at the mall. The police then brought mother to CAMH.
[48] Mother has remained at CAMH in the General Forensic Unit since then.
[49] On December 25, 2018, while on a brief escorted pass into the community, mother went missing. She was subsequently located at her apartment, which is a considerable distance from CAMH.[^7] She was returned to CAMH where she has remained until now.
4: ACCESS
4.1: INTRODUCTION
[50] As I noted at the outset, the grandmother has a final custody order, an order which was made on the consent of all parties. The question for the court is what, if any, access mother should have to B.
[51] Subsection 105(2) of the Act provides [my emphasis]:
Access after custody order under s. 102
(2) If a custody order is made under section 102 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 will not be in the child’s best interests.
[52] It is clear from this subsection that an access order is presumptive, unless the society can satisfy the court that such an order is contrary to B.’s best interests.
[53] The society’s position rests essentially on two prongs. First, the society says, it is not reasonably possible to arrange access in such a way as to ensure B.’s safety.
[54] And second, according to the society, in-person access would not be beneficial to B. and, accordingly, not in B.’s best interests.
[55] For reasons which follow I am compelled to agree with the society’s position, insofar as in-person access is concerned. While I have struggled to find a way to craft an in-person access order which would answer the society’s concerns, I find that I cannot do so on the facts of this case.
4.2: MOTHER’S MENTAL HEALTH POSES SERIOUS RISK OF HARM
[56] The grandmother has the longest history with the mother and her mental health problems. The mother is presently 33 years of age and, according to the grandmother, the mother’s mental health problems go back to when she was about 14 years old.
[57] Oftentimes the mother would punch her sister, M. in the head, and she would slap the grandmother in the face.
[58] While the grandmother stated that the mother’s aggressive acts toward her and M. never resulted in any actual injuries to either of them, they would both sometimes have to leave their apartment on such occasions, just to get away from the mother.
[59] The mother would also cause property damage in the apartment in which the family lived.
[60] On at least two occasions, the mother tried to choke the grandmother, once in April 2016 and once in September 2016, just prior to B.’s birth.
[61] The mother stated that on the April incident the mother told her that she had in fact been taking her medication. However, in the September choking incident the mother said she had not been taking her medication because she didn’t want to take anything while she was pregnant.[^8]
[62] Initially the grandmother thought that the plan would be for B. to live with the grandmother and that she would be willing to supervise the mother’s contact with B.
[63] However, following B.’s birth the mother assaulted a nurse at Sunnybrook and she was charged criminally with that assault. Mother testified that she punched that nurse “by accident”. She said that when she did this, she was “surrounded by faces and voices” and that they were “moving me”.
[64] Following that assault, the incident at the society’s offices occurred on February 22, 2017.
[65] According to the society worker, immediately following the end of the access visit, the mother returned to the second floor where the access had just taken place and demanded to take B. home with her.
[66] According to the worker’s testimony, when the society supervisor refused the mother’s demand, the mother quickly escalated, yelling and threatening to kill staff members.
[67] The worker and two colleagues were in the observation room at the time, together with B., and they had to barricade themselves in that room to prevent the mother from seizing the child.
[68] The mother began to push the door from the outside while the three staff members tried to keep the door closed. The worker states [my emphasis]:
[Mother] showed incredible physical strength as she managed to break the lock of the door, and despite staff using all of our strength to prevent [mother] from entering the room, [mother] managed to open the door by kicking it, so that the door was slightly ajar. . . . [then mother] pulled my hair, which resulted in chunks of my hair strands being pulled out.
[69] The building superintendent came quickly and managed to escort mother out of the building. Mother then apparently fled the scene.
[70] She was located and subsequently charged with assault. She was later released on bail, one term of which was to remain away from the society’s office and, additionally, to reside with the grandmother, who acted as her surety.
[71] The mother’s version of the events is slightly different. She says she felt B. was being talked to “impolitely” by a society staff person. She also says that she did not actually break the lock on the door when she managed to push it ajar; and although she acknowledges pulling the worker’s hair, she says she did so “by accident”.[^9]
[72] It was following this incident that the society suspended all further access.
[73] As I noted earlier, mother’s mental health history is long-standing.
[74] Her current CAMH psychiatrist, Dr. Karen Ng filed a report at this trial and she also gave oral testimony.
[75] Referring back to the assault which occurred at the mall on October 10, 2018, Dr. Ng stated that she had earlier asked mother about that incident. She said that mother reported to her that she gently touched the assaulted woman’s cheek and that this touching was in response to a visual hallucination, something that she was trying to swat away.[^10]
[76] According to Dr. Ng, mother continues to be diagnosed with schizoaffective disorder. I cite the following excerpt from Dr. Ng’s report dated January 14, 2019 [my emphasis]:
[Mother] presented with symptoms of psychosis which are marked by visual hallucinations of ghosts or monsters which occur very throughout [sic] the day and auditory hallucinations of these ghosts or monsters making derogatory comments. She described delusions of being followed or monitored by someone. She has also described delusions that providing a sample of blood for lab testing would result in her death even though she has had numerous blood tests in the past without negative consequences.
[Mother] fluctuates in her ability to identify that her experiences are symptoms of a mental illness. Her ability to fully appreciate the risks and benefits of different treatment options, however, is impaired by her delusions and therefore she has been deemed incapable for treatment decisions with respect to antipsychotic medications and mood stabilizers. Her sister, M., has been identified as the substitute decision maker.
Since admission [October 2018] there have been changes to her medication. There appears to be some improvement in the intensity and frequency of [mother’s] delusions and hallucinations following these changes and she is being monitored closely. They continue to occur near daily, however, are less frequent throughout the day and are less intense. There have been no incidences of assaultive behavior since [mother] has been admitted to hospital.
In terms of her prognosis, I would describe it as guarded. As described above, [mother] previously demonstrated a period of stability when she received treatment with clozapine and a mood stabilizer. . . . Schizoaffective disorder, however, is a life-long condition and her illness is severe. It is possible that the illness has now progressed to the point that her response to clozapine with a mood stabilizer will not be as robust as it had been in the past.
[77] In her testimony, Dr. Ng said mother has been adherent to her medications while in hospital.[^11]
[78] She also stated that mother has not expressed a desire to end her life or to hurt other people.
[79] Dr. Ng was asked about the frequency of mother’s hallucinations, and she replied that mother reported her hallucinations to be occurring on a daily basis.
[80] In terms of the treatment goal, Dr. Ng was unable to make any realistic predictions. Her only goal at the present time is to continue her ongoing attempts to try to get mother stabilized. However, she added, “she hasn’t yet stabilized”.
[81] The current forensic detention order has been in place since early 2017 and mother is not yet even close to being discharged from that order. Dr. Ng did say that the goal of living in the community, while “achievable”, would take the form of independent living within a group home where she could be monitored by a mental health support team.
[82] However, mother is not yet ready to live in the community. She also said that community living can only occur if the ORB grants a discharge, something which is not likely to occur when someone has been unstable over the past year.
[83] Despite all of this evidence and the long-standing history of serious mental disorder, mother still asserted that in-person access would be safe for B.
[84] In support of that position, the mother called Deborah Sliwinski to testify at trial. Ms. Sliwinski is a child and youth counsellor who has worked in the area of in-patient mental health, and is presently the managing director of Brayden.
[85] At the outset of her testimony, Ms. Sliwinski stated that Brayden’s staff has experience supervising access visits for persons who suffer from serious mental health issues.
[86] She said that the supervision can take place at any location that meets the needs of the child and the parent.
[87] She was specifically asked what Brayden’s protocol is for parents who might become violent during the course of a visit. She stated that supervised visits have taken place where parents had previously been violent, that is, where the violence is historical, but not where the violence was an ongoing issue.
[88] Ms. Sliwinski was given the opportunity to review some of the evidence before the court pertaining to mother’s violent outbursts, as well as the report of Dr. Ng. She was then asked how, specifically, her safety planning would work if Brayden were to undertake to supervise mother’s access visits.
[89] She responded that, first, Brayden would need to know what was going on with the parent at the time access is being considered. She said “We would need to know everything”.
[90] She said that Brayden could only go as far as trying to commit to a visit at CAMH, in a “protective setting”. There would have to be a room made available with an observation mirror, as well as other safeguards in place. CAMH would have to agree in advance to commit to these logistics.[^12]
[91] Beyond that, Ms. Sliwinski was clear that Brayden would not be able to state with any certainty that it could commit to supervising access visits on a long-term basis.
[92] She also said that if the attending physician were of the view that mother was not stable at the time of the scheduled access visit, then Brayden would not be prepared to supervise those visits.
[93] She was given two or three possible scenarios for supervising mother’s access. First, a room that was without any monitoring from the outside and no doctor inside the room during the visit. Would this scenario allow for an access visit to occur? Her reply was that this would be a “setup for disaster”.
[94] The second scenario put to her was Brayden’s ability to supervise visits if someone from CAMH were present inside the supervised access room. She again said that it would not be safe to supervise a visit if someone were not also outside the room monitoring what was going on inside the room.
[95] She was also asked whether supervision would be appropriate if mother were eventually discharged from CAMH and returned to her group home, and the access were to take place at the Brayden premises. She replied that, first, the psychiatrist would have to clear the access visit to take place and, second, Brayden would have to interface with the staff at the group home where mother was living at the time in order to get a full picture of mother’s then-current circumstances.
[96] Of significance, Ms. Sliwinski testified that Brayden had never supervised access visits in a situation where the court had ordered such visits and the society was expressing concerns about access and was making it clear to Brayden that it preferred access not to occur.
[97] This evidence was very revealing. It began with the general position that, yes, we can supervise visits for parents with mental health issues. Then, as more and more was revealed to Ms. Sliwinski about mother’s circumstances, about her history, about her current lack of stability, about her propensity for violence – almost spontaneously, and without predictable triggers – it became clear that Brayden would have very real trepidation about supervising mother’s access visits.
[98] In the court’s view, it would be next to impossible to obtain a psychiatrist’s opinion on the day of any scheduled access visit that mother’s mental health was sufficiently stable such that she would not pose a risk of harm.
[99] First, the logistics of making arrangements for that kind of an on-the-spot assessment would be exceedingly challenging; and, second, it is highly doubtful that any psychiatrist would provide an opinion to Brayden, an opinion that he/she knows Brayden would be relying upon as to the likelihood that mother would not engage in any acts of violence.[^13]
[100] This is particularly so given mother’s history of engaging in violence in an unpredictable manner, with no discernable pattern, and no discernable triggers.
[101] The takeaway from Ms. Sliwinski’s evidence is that there would be far too many red flags standing in the way of Brayden’s ability to safely supervise access visits.
[102] And finally, even if it could reasonably be argued that mother has never actually harmed B., or threatened to harm him, the mere fact that violence could occur in his presence – as it did on February 22, 2017 – thus exposing B. to violence, can be seen as a serious risk for emotional or psychological harm to B. See for example Children’s Aid Society of Ottawa v. M.P., 2014 ONSC 1551.
4.3: MOTHER’S ACCESS IS NOT OTHERWISE BENEFICIAL AND NOT IN THE BEST INTERESTS OF B.
[103] It would be difficult to conclude that even if access were in some way beneficial to B. that the court could order it to occur, if the access visits would otherwise pose a risk of harm to B.
[104] That said, the evidence reveals that apart from the safety issue, an order for supervised access would not be in B.’s best interests.
[105] Subsection 74(3) of the Act defines “best interests”:
Best interests of child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
[106] Of the foregoing, the factors I consider to be the most relevant on the facts of this case are:
74(3)(c)(i), (ii), (iii), (iv), (vi) and (xi)
[107] I do not propose to discuss these factors discretely but, rather, my analysis will incorporate these factors in a more holistic way, given the tendency for the evidence to overlap two or more of these factors.
[108] As I noted earlier, the mother has seen B. five times since his birth, for a total of about seven hours of contact time. She has not seen B. for almost two years.
[109] It is self-evident to observe that this two-year and four-month old child would have no recollection of his mother, someone who he last saw when he was five months old. To B., mother would be a complete stranger.
[110] It is argued on mother’s behalf that access would be in B.’s best interests primarily for two reasons. First, mother is the biological mother and children have a right to have a relationship with their biological parents. Second, mother is the direct link to B.’s cultural and ancestral heritage.
[111] I do not minimize the importance of either one of these considerations. However, there is considerable case law where courts have decided that access between a child and a parent was not in the child’s best interests.[^14]
[112] Equally, the existence of a cultural/heritage link between a parent and a child, while perhaps a factor to consider, is simply one factor only.
[113] I will look more closely at how the five visits proceeded, following which I will consider the child’s needs in the context of what the mother is able to provide.
[114] Lisa Coccia is a child protection worker with the society. She supervised the first visit on the day of B.’s birth. The grandmother and the mother’s sister, M., were also present in the hospital room during that visit.
[115] Mother asked the nursing staff if she could feed apple juice to the baby.
[116] The mother covered B.’s face with a blanket. The nursing staff present in the room redirected the mother to uncover the baby’s face as his nose was covered and he needed to breathe. Despite this redirection, mother was either unwilling or unable to understand the redirection and she left B.’s face covered with the blanket.
[117] Apart from this, B. remained calm in mother’s arms. The visit lasted about one hour.
[118] The next access visit occurred on January 25, 2017 at the society’s office, supervised by Ms. Coccia. The grandmother was also present for this visit.
[119] The mother spoke to B. in what Ms. Coccia described as an odd, squeaky tone of voice. Despite the suggestion from both Ms. Coccia and the grandmother to speak to B. in a regular, normal tone, the mother was not able to accept that suggestion.
[120] The mother was not aware of any child development stages, as she asked B. to place his own leg in his clothing during a diaper change. She also asked him not to suck his fingers. B. was four months old at the time of this visit.
[121] During the visit, the grandmother suggested that mother have “tummy time” with B. The grandmother attempted to explain to mother how to do tummy time, and the importance of head control. However, instead of engaging appropriately with B., mother got down on the floor with him and she rocked herself on her own tummy, and mimicked B. every time he put his fingers in his mouth. She also continued to use a squeaky and unintelligible voice with B.
[122] While B. was on his tummy, the mother commented to grandmother that she did not want to suffocate B. This occurred during a time when Ms. Coccia says there were no safety concerns with B.
[123] After B. was fed, the grandmother held him and burped him by appropriately patting his back. The mother told the grandmother to stop hurting B., thinking incorrectly that the grandmother was doing this.
[124] After the feeding, while the grandmother was changing B.’s diaper, the mother told her “don’t do that to him”, even though the grandmother was changing the diaper appropriately.
[125] At one point, mother became so agitated with the grandmother that she said in a raised voice, “stop doing that”, and then she pushed the grandmother out of the way with her arm.
[126] At the end of the visit there was no good-bye exchange between mother and B. Mother appeared to be quite agitated as she stormed out of the access room when B. was taken away. This access visit lasted about 90 minutes.
[127] The third access visit was also supervised by Ms. Coccia, on February 1, 2017. Prior to the start of the visit, mother had difficulty recalling to Ms. Coccia and her supervisor what had occurred at the prior visit. She could not remember the structure of the previous visit and, accordingly, was unable to build on that for her present visit.
[128] In response to a specific question, mother said she continues to hear voices and that the voices tell her good things about B.
[129] Mother requested a bottle of water to feed to B. She was told that B. drinks only formula. Mother did not accept that response and was quite agitated as she again asked for a bottle of water to feed to B.
[130] The visit was otherwise uneventful. B. did not cry while he was in mother’s arms.
[131] The fourth access visit was at the society’s office on February 8, 2017. It too was supervised by Ms. Coccia.
[132] Mother was again unable to recall the structure and the activities that happened at the prior visit.
[133] Mother brought with her some age appropriate toys for B. to play with.
[134] Mother commented that she was continuing to hear voices about B. Mostly those voices were saying benign things about B., but sometimes the voices would tell her something “bad” about B. – although not on that day. She said that sometimes the voices tell her that someone is in her closet and spying on her.
[135] Mother appeared to be agitated during the visit, at one point speaking to B. in an agitated voice, saying “sit down B.”, rather than simply switching B.’s position.
[136] Mother also firmly reminded B. that she was his mother and that he should remember that.
[137] At one point mother’s voice was raised so loud that the society supervisor had to enter the room to ask mother to keep her voice down in order not to frighten B. Mother did comply with this request.
[138] At the conclusion of the visit mother asked if she could take B. home with her. The supervisor said that she could not, and mother accepted this response and left the society’s office without further issue.
[139] The final visit occurred on February 22, 2017 at the society’s office. I described in some detail earlier in these reasons the incident which occurred at the end of the visit, the incident which resulted in a termination of all further access visits.
[140] However, prior to that incident, at the outset of the visit, mother was once again unable to recall the structure of the prior visits. She was unable to demonstrate an understanding of B.’s cues and therefore unable to interact appropriately with him.
[141] During the visit, mother held B. in what Ms. Coccia described as an inappropriate manner, facing outwards on her lap, with his foot dangling down the outside of her leg. Despite the awkwardness of this position, mother insisted that she continue to hold him like this.
[142] Ms. Coccia described the kind of guidance that mother required during the visit as “extremely unusual”.
[143] It was at the end of that visit that the incident occurred which ultimately resulted in mother assaulting Ms. Coccia and a termination of all future access visits.
[144] The society’s Health Specialist, Ms. Enskaitis, is a registered nurse. She was assigned to the file for an “Ages and Stages” screen, as B. was having a number of tantrums that included head banging.
[145] Her assessment involved a number of contacts and visits with the grandmother over about a three-month period, ending October 24, 2018.
[146] She described the grandmother as an “affectionate and attentive caregiver, who is able to understand B.’s non-verbal and verbal communication, and who responds appropriately.
[147] Overall, Ms. Enskaitis described B. as healthy and well cared-for by his grandmother, and living in an appropriate home.
[148] When she first met with B., she was advised that he was having one or two temper tantrums each day, sometimes lasting more than 15 minutes, and of considerable intensity.
[149] Ms. Enskaitis noted in her discussions with grandmother that B. was undergoing an adjustment in his transition from the foster parent’s home to the grandmother’s care. She discussed with grandmother the importance of a consistent routine, including regular meals and bedtime routine.
[150] Ms. Enskaitis also discussed the need for B. to have opportunities every day for exercising his muscles, such as by going for walks, or going to the park.
[151] Overall, Ms. Enskaitis noted that B. is progressing well in grandmother’s care. She recommended that grandmother continue with B. in the local EarlyON program to provide B. with stimulation and opportunities for socialization.
[152] She also recommended that grandmother ensure that she takes B. to his physician for his wellness checks on an as-needed basis.
[153] I return to the best interests considerations which I identified earlier in this section of my reasons, as being the most relevant considerations for determining B.’s best interests.
[154] There are certain positive things that can be said about mother in the context of her desire to have regular in-person visits with B.
(1) She clearly loves B. and wants to have an enduring relationship with him.
(2) A relationship between mother and B. would enable B. to have a direct connection to his ancestry, place of origin and ethnic origin, as well as his cultural and linguistic heritage.
(3) All things being equal it is generally beneficial for children to have a biological parent in his life, rather than to grow up without that connection.
[155] Unfortunately for both mother as well as B., there are far too many countervailing considerations which would make an in-person relationship between the two of them more detrimental than beneficial at this time, including:
(1) The mother’s serious mental health issues appear to disable the mother from understanding ages and stages and providing for B.’s physical needs in an appropriate manner.
(2) The mother’s serious mental health issues prevent her from understanding B.’s emotional needs and how best to interact with B. in a manner that reflects those emotional needs.
(3) The mother’s serious mental health issues would likely prevent mother from learning how to address B.’s physical and emotional needs in any significant way.
(4) Mother’s serious mental health issues result continuously in leading mother into situations of conflict and criminal-type behaviour, thereby exposing B. to this kind of behaviour. Mother does not have the mental capacity to understand that B. needs to be completely insulated from any behaviour which exposes him to conflict.
(5) Mother is a complete stranger to B. She has not seen him for almost two years. The interaction she had with him prior to that was not more than a total of seven hours.[^15] She does not know him. He does not know her.
(6) Bringing a stranger into B.’s life, a stranger who presently is incapable of interacting with B. in an appropriate manner, would only serve to confuse him. It would interfere with the consistency of caregiving approach that was emphasized by Ms. Enskaitis, the society’s Health specialist.
(7) Mother’s serious mental health issues could significantly undermine much of the positive caregiving that the grandmother is providing.
(8) Grandmother herself is capable of addressing B.’s ancestry, ethnic origin and his cultural and linguistic heritage in a manner that the mother is currently unable to do because of her mental health deficits.
(9) Given B.’s very young age and the formative development stage he is at, if access were to be tried out, and then have to be halted after several visits because of inappropriate or risky conduct by the mother, this could well leave B. in a state of confusion, or even emotional distress.[^16]
[156] All of these negatives are serious and significant. The negatives can be counterbalanced by the care that the grandmother is currently providing to B., and the caregiving that she will continue to provide to B.
[157] The risk of undermining the grandmother’s care and guidance, even during short periods of supervised visits, is far too great. B. is a young child who is in the formative stages of his development. He should not be subjected to an experiment in order to “see what happens”.
[158] If B. were not in his most formative years, if he were, say 10 or 12 years old, he might be capable of being more self-protective. If he already had a positive relationship with his mother, he might be able to tolerate, and even benefit from some short visits with his mother, understanding her mental health issues and her personal challenges.
[159] However, B. is far too young for this to take place. At this very young age, at an age when he is just beginning to develop, it would be too risky to expose him to the challenges which mother would pose in any personal interaction with him.
[160] All of that said, there would be less risk in permitting mother some indirect contact with B. through cards and letters. The one caveat to this would be a vetting of those cards and letters by the grandmother to ensure that nothing inappropriate is conveyed to B.
[161] The benefit of controlled, periodic cards and letters is that B. could possibly develop over time an understanding that mother is someone to whom he is connected, even possibly understanding as he becomes older that this is his biological mother, someone who is going through difficult times.
[162] Accordingly, at the conclusion of these reasons I will provide for this kind of indirect contact, with specified conditions attached.
5: RESTRAINING ORDER SOUGHT BY SOCIETY
5.1: NO JURISDICTION TO GRANT A RESTRAINING ORDER
[163] The society seeks a restraining order against the mother. Specifically, the society requests an order that the mother be restrained from coming within 500 metres of any location where she reasonably expects the child to be.
[164] Subsection 102(3) of the Act states:
Restraining order
(3) When making an order under subsection (1)[^17], the court may, without a separate application, make a restraining order in accordance with section 35 of the Children’s Law Reform Act.
[165] Subsection 35(1) of the Children’s Law Reform Act states [my emphasis]:
Restraining order
35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.
[166] Leaving aside for the moment the merits of the society’s request, in the court’s view there is a jurisdictional barrier to what the society is seeking.
[167] Subsection 35(1) of the Children’s Law Reform Act permits the court to make the restraining order, but only if the applicant has the reasonable grounds to fear, as provided for in that section.
[168] In this case the applicant is the society. Clearly it is not the society which has reasonable grounds to fear for its safety or for the safety of the child in its custody.
[169] If anyone has reasonable grounds to fear, it would be the grandmother.
[170] The society argues that because both Acts are remedial legislation, and the intent is to protect parents and/or children, the wording of the legislation ought to be given a liberal or expanded interpretation.
[171] The society argues that unless the word “applicant” is given a broader interpretation, the section itself would have no meaning and the purpose of the legislation would be defeated.
[172] I disagree with both those arguments.
[173] The granting of a restraining order is very serious business. A restraining order ought not to be granted lightly. The effect of a restraining order is to limit the freedom of movement of the person so restrained. Breach of a restraining order can lead to criminal prosecution, with fines and imprisonment imposed in certain cases.[^18] A restraining order is criminal in nature.
[174] My understanding of restraining orders is that the formal order issued by the court, contains the following notation below the judge’s signature line [my emphasis]:
Note: This order will be registered against the person being restrained on the Canadian Police Information Centre (CPIC) Database. Disobeying this order is a criminal offence punishable by fine or imprisonment. Any police or peace officer with jurisdiction over the place where the order was disobeyed may arrest the person being restrained without warrant in accordance with section 495 of the Criminal Code of Canada.
[175] When the restraining order is granted, the police are simultaneously given a description of the person who is bound by the order and in the event someone contacts the police to complain of a breach, the police are able to act quickly.
[176] The combination of section 35 of the Children’s Law Reform Act and the Criminal Code of Canada is to create a penal provision. And although jurists and scholars have debated over the years the nature of statutory construction for penal legislation, the prevailing view in Canada has long been that penal legislation ought to be construed narrowly in favour of the person who is facing penal sanctions.[^19]
[177] In this case, the legislation says what it says and in my view there is no need to twist the meaning of the word “applicant” in order to give effect to the statute. Had the grandmother, who is a party in this proceeding, made her own request for a restraining order, she would have been an “applicant” for that ground of relief. In such a case, the court would then have considered the evidence to determine whether the granting of a restraining order was appropriate in the circumstances.
5.2: THE GRANDMOTHER DOES NOT FEAR FOR B.’S SAFETY
[178] The grandmother chose not to make a claim for a restraining order. In fact, the grandmother, while recognizing the mother’s violent actions in the past, took the position in this trial that a restraining order was not necessary.[^20]
[179] The society argues that even if the grandmother has no present fear for B.’s safety, that fear could arise in the future. And the existence of a restraining order, registered on CPIC, would enable the police to act quickly in order to protect B.
[180] In effect, the society’s argument is an argument of convenience.
[181] The general principles which a court will consider and apply when determining whether to grant a restraining order are neatly summarized in the case of D.C. v. M.T.C., 2015 ONCJ 242, a decision of Justice Victoria Starr, where she stated at paragraph 64 [my emphasis]:
64 Based on my review of the case law, the general principles to be considered and applied when determining whether there are reasonable grounds for the person seeking the order to fear for her own safety or for the safety of his or her child or children, include the following:
(a) The onus is on the person asking for the restraining order on a balance of probabilities to convince the court that an order is required;
(b) As a general rule the court must approach the issue of whether to impose a restraining order with caution. The nature of an order is to restrict the freedom of movement and communication of a party. The sanctions for breaching such an order include possible imprisonment. Although the burden of proof is the civil test, the effect is quasi criminal in nature;
(c) A restraining order is not restricted to situations where the fear relates to physical safety. It can also include ongoing fear for one’s psychological safety;
(d) It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed;
(e) An applicant does not have to have an overwhelming fear that could be understood by almost everyone; on the other hand, the applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant;
(f) There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words and a Court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.
[182] Nowhere in that list of considerations is there any suggestion that a restraining order should be granted in circumstances where the fear is not a present fear and that, as a matter of convenience, it should be granted in case the fear arises at some point in the future. This is particularly so because, as Justice Starr notes, the court must approach restraining orders with caution, given the criminal sanctions which can flow from these orders.
5.3: NO MORAL BLAMEWORTHINESS
[183] My findings with respect to jurisdiction, as well as the grandmother’s specific lack of fear for B. are sufficient to dispose of the society’s request for a restraining order.
[184] However, I wish to go further and explain why, even if the court was not deprived of jurisdiction, I might have been reluctant to exercise my discretion under section 35 of the Children’s Law Reform Act to grant a restraining order in the circumstances of this case.
[185] The intent behind the granting of a restraining order is twofold. First, it is intended to protect particular individual(s) who reasonably expect that they might be harmed by someone.
[186] Second, a restraining order is designed in such a way as to act as a disincentive to the respondent, the person who is bound by the terms of the order, to continue to behave in the way that led to the making of that order.
[187] A review of the case law where restraining orders have been granted in family law cases[^21] reveals that in each case, the imposition of the restraining order flowed from moral blameworthy or culpable behaviour against whom the restraining order was directed.
[188] While nowhere in D.C. v. M.T.C. supra, does Justice Starr speak explicitly for the need to find moral blameworthiness on the part of the responding party, in my view, that is implicit in Justice Starr’s case, and generally in all the cases where restraining orders have been granted.
[189] Moral blameworthiness can be viewed similarly to the concept of mens rea in criminal law.
[190] Specifically, courts look to impose penalties and punishments – particularly penal punishments – on persons who are morally blameworthy for their conduct.
[191] Mere conduct without any degree of moral blameworthiness is not viewed by our system of criminal justice as something which should attract criminal sanctions.
[192] The discussion of moral blameworthiness is relevant to the evidence in this case. The mother has been charged a number of times with various counts of assaulting others. Those charges have not led to convictions. In one or more cases the police or Crown withdrew the charge in recognition that mother’s actions stemmed from her mental disorder.
[193] In one or more of the other cases, the charges against mother were resolved by a finding of not criminally responsible, remanding her to the General Forensic Unit of CAMH. Again, this was a recognition that mother lacked the requisite mens rea – the moral blameworthiness – to commit a criminal act.
[194] If our society recognizes that people should not face criminal sanctions where there is no moral blameworthiness, how would it be fair to place mother in the position where if she were to violate a restraining order because of her mental disorder, she then faces the penal sanctions under the Criminal Code of Canada?
[195] If one of the purposes behind the making of a restraining order[^22] is to dissuade the respondent from doing the prohibited acts on penalty of fine or imprisonment, that dissuasion will work only where the respondent has the requisite mental ability to control her actions. The mother does not have that mental ability.
[196] Furthermore, it appears highly unlikely, given the psychiatric evidence, that she will have such control over her actions for the foreseeable future.
[197] It might be argued that the lack of mens rea, is a defence that would be open for mother at a criminal trial if she were in fact charged with the offence of breaching the restraining order. And at that time, if the criminal court concluded there was no mens rea[^23] the charge against her would be dismissed.
[198] However, I view that as tantamount to taking a sledge hammer to kill a fly. Why put the mother into that criminal trial to begin with? Why even expose her to that possible jeopardy?
[199] For all of these reasons, I have decided not to grant the restraining order which the society requested.
5.4: LIMITED CONTACT ORDER INSTEAD OF RESTRAINING ORDER
[200] Subsection 102(2) of the Act reads, in part, as follows [my emphasis]:
Deemed to be order under s. 28 Children’s Law Reform Act
(2) An order made under subsection (1)[^24] and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be made under section 28 of the Children’s Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act;
[201] Subsection 28 (1) of the Children’s Law Reform Act reads, in part, as follows [my emphasis]:
Powers of court
28 (1) The court to which an application is made under section 21,
(a) by order may grant the custody of or access to the child to one or more persons;
(b) by order may determine any aspect of the incidents of the right to custody or access; and
(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,
(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child
[202] A limited-contact order made pursuant to section 28 of the Act is not as broad and intrusive as a restraining order. It does not carry with it the same criminal law consequences as a restraining order. However, it can still limit and define the terms of contact and communication between the mother and the child. See F.K. v. M.C., 2017 ONCJ 181.
[203] In the event of a breach of a section 28 order, the remedy is a civil contempt proceeding rather than a criminal prosecution. And in a contempt proceeding the court would have to find that the mother willfully breached the order before finding her in contempt. That may be very difficult to do given the mother’s circumstances and her history, as I have discussed.
[204] That said, in the event there is a wilful breach, the mother can still be held accountable for her actions. In my view this is a more appropriate approach to take in the circumstances of this case, rather than a criminal prosecution which can flow from the imposition of a restraining order.
6: CONCLUSION
[205] On the issue of access, the court orders that there shall be access to the child, B., by his mother, I.A., and that there shall be access by the child, B., to his mother, I.A., subject to the following terms:
(1) There shall be no direct in person contact between B. and his mother, I.A. The mother, I.A. shall not attend at B.’s residence, school, daycare, or anywhere else he is known to frequent, nor shall she attempt to do so.
(2) There shall be indirect access/contact, which may include an exchange of pictures, letters, and/or gifts six times per year.
(3) The contents of any pictures, letters, and/or gifts is subject to approval by the grandmother, B.A., and may be either edited or refused in the sole discretion of B.A.
(4) There shall be no further or other access, without an order of the court.
[206] The society’s application for a restraining order against the mother, I.A., is dismissed.
[207] I wish to add a couple of comments about the access order. I have specifically declined to give the grandmother a discretion to permit telephone/Skype access as that would put her in the position of having to be the gatekeeper to determine the appropriateness of any comments the mother may make to B. This gatekeeper role is something that the grandmother specifically wished to avoid. And, unlike cards and letters, she would have to make those determinations on-the-spot, something which might be very difficult to do. And if she determined that the mother was making inappropriate comments to B., she would then be forced to summarily terminate the telephone/Skype contact, something which could be very confusing and upsetting to B.
[208] The issue of expanded access beyond cards and letters, including in-person access as well as telephone/Skype access is something which a court has the authority to revisit on a motion to change, if that were to be brought by the mother, pursuant to section 29 of the Children’s Law Reform Act.[^25]
[209] Finally, I wish to thank all counsel for the professional manner in which they represented their respective clients in this trial. In particular, Mr. Goudimenko, who was tasked with the most challenging position, fulfilled his responsibilities to his client in the highest traditions of the Bar, and for that the court is most grateful.
Released: January 30, 2019
Signed: Justice Robert J. Spence
[^1]: Mother’s sole source of income is the Ontario Disability Support Program. While the decision I am making is not affected by that fact, I wonder how realistic it is for mother to say she is willing to pay $155 per visit + HST, were the court to order supervised visits through Brayden. [^2]: B. was placed on an extended access visit with the grandmother in December 2017. [^3]: The ORB afforded some discretion to the persons in charge of mother, from time-to-time, to permit some movement within the hospital grounds and in the community. [^4]: Although in the Statement of Agreed Facts which mother signed on January 15, 2018, it was noted that “this disposition is not confirmed”. [^5]: Now, sections 74(2)(b)(i) and (ii) and 74(2)(k) of the Child, Youth and Family Services Act (“Act”). [^6]: By that date, mother had been discharged from the CAMH forensic unit and was living in the community. [^7]: Probably a few kilometers. [^8]: Although in April 2016 she would have been pregnant also. [^9]: The society’s evidence is more reliable than the mother’s testimony of her recollections. There is considerable evidence before the court of mother’s distorted orientation and her inability to recall events, even in the recent past. [^10]: Mother testified about this incident that “it was the voices telling me to do that . . . they made me do that”. [^11]: Some of her medications are taken orally, and others are injectable. [^12]: It did not appear from Dr. Ng’s testimony that CAMH would likely be able to agree to these logistics, not because it would arbitrarily refuse but, more likely because those resources were not available, or not readily available. [^13]: In effect, a psychiatric prediction not only of dangerousness, but also the likely timing of any such dangerous behavior. [^14]: T.P. v. K.S., 2018 ONCJ 785, is just one example of a recent such case. [^15]: Approximately one hour on the day of B.’s birth, followed by four 90-minute supervised visits at the society’s office. [^16]: For example, wondering who that person was who had been visiting him; or, if he somehow connected to the fact that it was his mother, then, why did she stop coming? Did I do something wrong? [^17]: Subsection 102(1) provides for the making of a custody order, in this case, the custody order to the grandmother, as I noted at the outset of these reasons. [^18]: Breach of a restraining order can be prosecuted criminally under section 127 of the Criminal Code of Canada. [^19]: Although this is not a debate I find necessary to engage in for purposes of these reasons, I refer for example to R. v. Philips Electronics Ltd, 1980 CanLII 1809 (ON CA), 30 O.R. (2d) 129, 55 C.C.C. (2d) 312, 116 D.L.R. (3d) 298 (C.A. 1980), aff’d 1981 CanLII 2987 (ON CA), 62 C.C.C. (2d) 384 (S.C.C. 1981). [^20]: The grandmother did argue that the court had no jurisdiction to make a restraining order; at the same time, her counsel expressed the strong view that the grandmother had no wish to take on the role of gatekeeper for what kind of access, if any, B. would have to the mother. [^21]: Including child protection proceedings. [^22]: From the respondent’s perspective. [^23]: In effect, a finding that mother was not criminally responsible. [^24]: The custody order which the court made on consent at the outset of trial. [^25]: The court may make changes to custody and access orders if it is satisfied that there has been a “material change in circumstances that affects or is likely to affect the best interests of the child”.