WARNING

The court hearing this matter directs that the following notice should 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: 2019-08-09

Court File No.: Toronto CFO-19-15574-00

Between:

Children's Aid Society of Toronto Applicant

— AND —

C.H. and A.M. Respondent Parents

Before: Justice Sheilagh O'Connell

Heard on: August 2, 2019 Ruling released on: August 9, 2019

Counsel

Beata Lis — counsel for the applicant society

Marlo K. Shaw — counsel for the respondent father C.H.

Michael Weissenborn — counsel for the respondent mother A.M., and agent for counsel for the Children's Aid Society of Haldimand and Norfolk

1. Introduction

[1] The respondent mother ("the mother") has brought a motion seeking to transfer this child protection application to the Unified Family Court in Cayuga in Haldimand County, Ontario. This motion is supported by the applicant society and the Children's Aid Society of Haldimand and Norfolk.

[2] The respondent father ("the father") opposes this request. Although he has not brought a formal motion, he is requesting that the child protection application be transferred to the Ontario Court of Justice in Windsor, Ontario. Alternatively, he requests that this case remain in the Ontario Court of Justice in Toronto at this time.

2. Background

[3] The respondents are the biological parents of the child who is the subject of this application, K.H. ("K."), born on […] 2017. K. is now 2 years old.

[4] The mother is 28 years old. The father is 25 years old.

[5] The mother currently resides in Dunnville, Ontario with her new partner.

[6] The father currently resides in Windsor, Ontario. He has a new partner, with whom he became involved with recently.

[7] The mother has another child from a previous relationship, D.H. ("D"), who is 9 years old. The father has another child from a previous relationship, S.H. ("S"), who is 4 years old.

[8] D. is currently living with the mother on an extended access visit with the goal of permanent re-unification. D. was removed from the mother's care in November of 2017 by the Haldimand Norfolk agency while the parents were together.

[9] S. lives with her mother in Dunnville Ontario. The father has had no contact with S. since December of 2017.

[10] The parents have an extensive history with children's aid societies as both children and as caregivers. As caregivers, the parents were primarily involved with the Children's Aid Society of Haldimand Norfolk[1]. The Haldimand Norfolk agency has been working with the family since June of 2017. The parents were living together with D. in Dunnville at the time.

[11] The child protection concerns identified were neglect, inadequate supervision, home conditions, transiency, adult conflict, domestic violence, and untreated mental health concerns[2].

[12] K. was born in […] of 2017. On September 5, 2017, Ms Chanda-Rae Namour, a child protection worker with the Haldimand Norfolk society, assumed carriage of the file and case management responsibilities for the family. Ms Namur has remained the assigned child protection worker since that time.

[13] In October of 2017, K. was diagnosed with a serious heart condition. His prognosis was terminal unless he received a heart transplant.

[14] On November 10, 2017, the mother's son D. came into the care of the Haldimand Norfolk agency after he reported being fearful of the respondent father. D. also reported that and that both respondent parents were physically disciplining him.

[15] In January of 2018, the mother and father temporarily re-located to Toronto so that K. could be placed on the heart transplant list at the Hospital for Sick Children ("SickKids"). K. had been attending SickKids for treatment.

[16] On January 22, 2018, the mother was charged with assaulting the father in Toronto. Her bail conditions required her to leave the family's residence in Toronto and to have no indirect or direct contact with the father. The mother returned to Dunnville, Ontario. The father remained in Toronto with K., while waiting for the heart transplant.

[17] The parents separated at that time.

[18] After this happened, the Haldimand Norfolk agency requested assistance from the Toronto applicant society to initiate an investigation in Toronto. According to the affidavit of the Haldimand Norfolk worker, the mother was forced to return to Dunnville and to leave K. in the care of the father in Toronto so that K. could remain on the heart transplant list.

[19] On March 15, 2018, the Haldimand Norfolk agency made an interagency request for assistance from the applicant society to meet with the father and K. regularly and to provide resources and supports to them in Toronto.

[20] Between January and July of 2018, K. was regularly in and out of the hospital for treatment regarding his condition. On July 24, 2018, K.'s lung collapsed and K. was admitted indefinitely to SickKids until he received his heart transplant.

[21] On January 16, 2019, K. successfully received his heart transplant.

[22] Following K.'s discharge from SickKids, K. was referred to Holland Bloorview Children's Rehabilitation Hospital ("Bloorview") for a six week rehabilitation program.

[23] Upon K.'s discharge from Bloorview, set for April 18, 2019, the father's stated plan was to move in with his father and step-mother in Welland, Ontario, which is close to Dunnville. However, on April 8, 2019, the father changed his mind and advised medical and society staff that he decided to move to Windsor, where his new girlfriend resided. The father had met his girlfriend at SickKids when her child was also receiving a heart transplant around the same time as K.

[24] On April 10, 2019, according to the evidence filed, K.'s medical care teams at both Bloorview and SickKids reported a number of escalating concerns to the Haldimand Norfolk and Toronto agencies regarding the father's commitment and capacity to care for K.

[25] Given these concerns and the father's stated intention to move to Windsor, the Haldimand Norfolk child protection worker made a referral to the Windsor children's aid society in order for that agency to investigate and complete an assessment of the father's commitment and capacity to care for K.

[26] The Windsor children's aid society had no previous involvement or knowledge of the parents and K. until receipt of Haldimand Norfolk's referral.

[27] On April 18, 2019, K. was discharged from Bloorview and the father confirmed that he was moving to Windsor, Ontario with K.

[28] On May 9, 2019, after the father was in Toronto with K. for follow-up medical care, Dr. Dipchand, K.'s treating physician at SickKids, contacted the Windsor child protection agency to report serious concerns about the father's parenting of K.

[29] Specifically, Dr. Dipchand reported that:

• the father had not been following medical direction regarding K.'s feeding schedule, resulting in K. losing weight since moving to Windsor;
• the father had not been following the medication regime for K. for at least two weeks, resulting in a further loss of weight for K.;
• SickKids medical staff were unable to contact the father as his phone had been cut off;
• The father had not identified a back-up person to support him and K. and who is to attend SickKids for training regarding K.'s treatment.

[30] On May 10, 2019, K. was admitted to the emergency at SickKids hospital for what appeared to be two broken bones. K. was assessed by the Suspected Child Abuse and Neglect Team at SickKids ("SCAN"). Three fractures were identified.

[31] According to the SCAN report, the first two fractures could have been caused by a bending force, but the third fracture was a "spiral" fracture, which is caused by a twisting mechanism and force. K. was also observed to have unexplained bruising on his ears. All three fractures had occurred in the previous seven to ten days, as there was no healing observed on the x-rays.

[32] The father explained that K. may have hit his leg while visiting the Eaton's Centre and the third fracture may have been caused by K. trying to pull himself up.

[33] The x-rays also demonstrated that K. appears to have diffused "Osteopenia", causing the bones to be less dense and therefore more susceptible to fracture. According to the evidence, however, at least one of the fractures was not consistent with fractures caused by Osteopenia.

[34] The police are investigating and no charges have been laid at this time.

[35] K. was removed from the father's care on May 13, 2019 and brought to a place of safety. The society commenced this application on May 17, 2019.

[36] On May 17, 2019, this court made a temporary without prejudice basis placing K. in the temporary care and custody of the society, with access to both parents at the discretion of the society in regard to frequency, duration and location, considering the child's medical and treatment needs.

[37] K. continues to remain in foster care in the Pickering area, immediately east of Toronto, while an assessment and investigation of both parents' plans of care for K. is ongoing, and subject to further court order.

[38] On July 16, 2019, the three protection agencies currently involved with this family had a meeting to discuss the mother's motion to have the child protection file transferred to Cayuga and to further review permanency planning for K. In attendance were the child protection workers and supervisors from all three agencies: Haldimand Norfolk, Toronto, and Windsor.

[39] All parties at that meeting agreed that a permanency plan needs to be developed for K. as soon as possible. Given that neither parent resides in Toronto, the file needs to be transferred. All three agencies further agreed that the file should be transferred to Cayuga, for reasons addressed later in this decision.

3. The Law and Governing Principles

[40] Section 91 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 (the "CYFSA") governs the determination of whether a child protection proceeding should be transferred to another territorial jurisdiction. It provides as follows:

Territorial jurisdiction

91 (1) In this section,

"territorial jurisdiction" means a society's territorial jurisdiction under subsection 34 (1).

Place of hearing

(2) A hearing under this Part with respect to a child shall be held in the territorial jurisdiction in which the child ordinarily resides, except that,

(a) where the child is brought to a place of safety before the hearing, the hearing shall be held in the territorial jurisdiction in which the place from which the child was removed is located;

(b) where the child is in interim society care under an order made under paragraph 2 or 4 of subsection 101 (1) or extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the hearing shall be held in the society's territorial jurisdiction; and

(c) where the child is the subject of an order for society supervision under paragraph 1 of subsection 101 (1) or clause 116 (1) (a), the hearing may be held in the society's territorial jurisdiction or in the territorial jurisdiction in which the parent or other person with whom the child is placed resides.

Transfer of proceeding

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

Orders affecting society

(4) The court shall not make an order placing a child in the care or under the supervision of a society unless the place where the court sits is within the society's territorial jurisdiction.

[41] The language in section 91 under the CYFSA is identical to section 48 under the previous legislations, the Child and Family Services Act ("CFSA"). Therefore, in my view, much of the case law interpreting section 48 is still relevant.

[42] In Children's Aid Society of Toronto v. A.T. and D.H., 2010 ONCJ 456, Justice Stanley Sherr succinctly explains the legal test to be applied when considering transfer motions.[4]

[43] The onus to establish that there is a "preponderance of convenience" to hear a child protection proceeding in another jurisdiction is on the person seeking the transfer. See Children's Aid Society of Prescott-Russell v. B.B. and M.B., [1991] O.J. No. 2540 (Ont. Gen. Div.)

[44] "Preponderance" is defined in Black's Law Dictionary as "Greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability." See paragraph 9 of Children's Aid Society of Toronto v. A.T. and D.H., supra.

[45] Any assessment of the "preponderance of convenience" is to be weighed considering the best interests of the child and not necessarily the wishes or convenience of any of the parties. See Children's Aid Society of Halton Region v. Katherine C., [2002] O.J. No. 382, 2002 CarswellOnt. 317 (O.C.J.)

4. Analysis

[46] Father's counsel argues that it would be premature and very prejudicial to him to transfer these proceedings to the Unified Family Court in Cayuga at this time as this will effectively preclude him from presenting a plan for the child or from exercising access. Cayuga is approximately 340 kilometres away from Windsor. The father does not own a car and public transit between Windsor and Cayuga is very limited, if non-existent.

[47] Father's counsel further submits that when K. was in Toronto receiving medical treatment, the society removed K. from the father's de facto care and custody. The society therefore has a legal duty to first assess whether K. can be returned to the father's care, with or without a supervision order, as he was the parent who had care and control of K. immediately prior to society intervention, in accordance with section 94 of the CYFSA. Counsel argues that transferring the case to Cayuga at this stage without fully investigating the father's plan is unfair to the father.

[48] Notwithstanding these factors, I find that the preponderance of convenience supports transferring this case to Cayuga for the following reasons:

1. It is not disputed that K.'s ordinary residence was in the territorial jurisdiction of Haldimand Norfolk for the first six months of his life. Both parents have lived in Haldimand County since May of 2017. Both parents' older children from previous relationships live in Haldimand County and have lived there since 2017. The parents' extended family members, including the paternal grandparents live close by.

2. The Haldimand Norfolk Children's Aid Society has been involved with both parents and the mother's older child since 2017. They have a long history of involvement with the family and that agency has worked closely with both parents. The Haldimand County child protection worker made the referral to the Toronto CAS when the parties came to Toronto for K.'s surgery and remained in close connection with the Toronto child protection worker assigned.

3. K. was only living in Toronto temporarily while he was waiting for a heart transplant and receiving medical care at SickKids and Bloorview. For the majority of that time, K. was an in-patient at both SickKids Hospital and Bloorview Rehabilitation Hospital. The father was not the primary caregiver while K. was being cared for and treated by the hospital medical staff.

4. The mother and her older child D. continue to live in Haldimand County. The mother has demonstrated a clear commitment to remaining there and she is working cooperatively with the Haldimand Norfolk child protection agency.

5. Both of K.'s siblings live in Haldimand in the same town of Dunnville.

6. Neither parent nor any of their children, including K., or extended family members, live in Toronto at this time. K. lives in a foster home in Pickering.

7. K. has no connection to Windsor, nor does the father, other than the girlfriend he met at SickKids hospital while both of their children were patients there. The father and K. only lived in Windsor jurisdiction for approximately three weeks, from on or about April 18 to May 10, 2019, prior to K.'s re-admission to SickKids and his subsequent removal from the father's care.

8. Neither the father nor K. or any member of K.'s extended family had ever lived in Windsor prior to that three week period. The father has no supports or extended family in Windsor, other than his recent girlfriend.

9. The Windsor Children's aid society has no prior history or knowledge of this family or extended family, unlike the Haldimand Norfolk society.

10. Contrary to the father's submission, the three child protection agencies involved with this family have in fact been assessing both parents' plans over the past number of months since K.'s very serious injuries while in the father's care.

11. According to the evidence filed, the mother appears to have stable plan. The mother has been working very cooperatively with the Haldimand agency and she has sufficiently addressed the child protection concerns that led to her child D. being removed from her care. D. is now residing with her on an extended access visit and the Haldimand agency is recommending that he be placed in the mother's custody under a supervision order.

12. It is important to note that K. was never removed from the mother's care when the parents were in Toronto together. Following the criminal charge against her and the resulting no contact order, the mother could not remain in the parties' temporary Toronto accommodation and returned to Dunnville. There were no reported concerns related to her care of K.

13. According to the evidence filed, there are significant concerns regarding the risk to K.'s health and safety should he be returned to the father's care. Although the police are still investigating and no criminal charges have been laid, the fact remains that K. sustained very serious and unexplained injuries while in the father's care. Further there is additional evidence that the father was not following K.'s medical treatment and feeding schedule, leading to significant concerns reported by medical staff following K.'s discharge from Bloorview.

14. There are continuing concerns about the father's judgment and capacity to meet K.'s complex medical needs and the stability of his plan of care. The father appears to be adamant about continuing to reside in Windsor, despite having no previous connections there and facing a number of barriers in continuing to care for K., such as a lack of support, including family support, limited income, frequent travel for medical appointments and to facilitate sibling access between K. and his siblings D. and S., both of whom reside in Dunnville. Windsor is 347 kilometres from Dunnville.

15. As indicated, the only connection that the father has to Windsor is his current and recent girlfriend, who resides in Windsor with her child. On July 12, 2019, the Windsor children's aid society initiated a new child protection investigation into concerns relating to the father's girlfriend. The agency received Facebook messages exchanged between the father and his girlfriend in which she appears to admit that she is the one responsible for breaking K.'s leg. These messages were forwarded to the police.

16. On July 15, 2019, supervisors and child protection workers from all three child protection agencies (Haldimand, Toronto and Windsor) convened a meeting to discuss the mother's motion to transfer the child protection case to Cayuga and to further review permanency planning for K. It is not disputed that all three agencies agreed that permanency planning needs to be developed as soon as possible for K. Given that neither parent resides in Toronto, the child protection file needs to be transferred. All three agencies also agreed that the mother has made significantly more progress than the father in addressing the identified child protection concerns and presents as the parent more likely to be in a position to safely resume care of K.

17. Finally, all three agencies agreed that the Haldimand Norfolk agency has the longest period of history and knowledge of the family and will be best placed to facilitate sibling access.

5. The Order

[49] For the reasons above, the court makes the following order:

1. This proceeding will be transferred to the Unified Family Court of the Superior Court of Justice in Cayuga, located at 55 Munsee St N, Cayuga, ON N0A 1E0.

2. The next case conference in this matter will be scheduled as soon as possible at a date to be set by the trial or scheduling coordinator in that court, in consultation with the parties and counsel.

Dated: August 9, 2019

Justice Sheilagh O'Connell

Footnotes

[1] However, due to multiple moves, the parents also had involvement with Children's Aid Societies of Niagara, Halton and Hamilton.

[2] The untreated mental health concerns and inadequate supervision of D., the older child, related to the mother only, all other protection concerns related to both parents.

[3] The CFSA was replaced by the CYFSA, which came into effect on April 30, 2018.

[4] See paragraphs 8 through 16 of Justice Sherr's decision.