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: July 31, 2020

Court File No.: C20705/18

Parties

Between:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO Applicant

— AND —

W.P.P. Respondent (father)

— AND —

C.R.-P. Respondent (step-mother)

— AND —

R.G. Respondent (mother)

Before the Court

Justice Melanie Sager

Motion Heard: July 8, 2020

Decision Released: July 31, 2020

Counsel and Parties

• Fatima Husain — counsel for the applicant society
• C.R.-P. — the respondent (step-mother) appearing on her own behalf
• W.P.P. — respondent (father) appearing on his own behalf
• R.G. — respondent mother not appearing
• Lorne Glass — counsel for the child S.P.G.

SAGER, J.:

Introduction

[1] The motion heard this day is brought within a Status Review Application by the Catholic Children's Aid Society of Toronto (the society) who request a temporary order placing the child, S.P.G., who is 13 years old, in the care and custody of the society. The father and step mother, who have care of S.P.G. subject to the society's supervision, ask the court to dismiss the society's motion. Counsel for S.P.G. asks on behalf of the Office of the Children's Lawyer (OCL), that the society's motion be dismissed and that S.P.G. remain in the care and custody of her father and step mother.

Background of the Litigation

[2] The society commenced a Protection Application on May 15, 2018, seeking a finding that the child was in need of protection as a result of S.P.G. disclosing that her father had hit her causing her nose and lip to bleed. The society sought an order placing S.P.G. in the interim care of the society for a period of 6 months.

[3] On October 12, 2018, S.P.G. was found to be in need of protection pursuant to subsections 74(2)(a)(i), 74(2)(b)(i), 74(2)(f) and 74(2)(g) of the Child, Youth and Family Services Act (CYFSA) and she was placed in the interim care of the society for 6 months. Access by the parents to S.P.G. was ordered to be at the discretion of the society and in accordance with the child's wishes.

[4] On June 28, 2019, a final order was made extending the interim care order for an additional three months with the same terms of access.

[5] On January 14, 2020, a final order was made placing S.P.G. in the care and custody of her father and step mother for a period of 6 months subject to the society's supervision. S.P.G. was able to return home as she and the parents had begun counselling and they were making progress focusing on S.P.G.'s feelings and the cause of her feelings. S.P.G. was referred for a trauma assessment and to her own counsellor. The father and step mother both expressed a commitment to following through with counselling and recommendations made by the family therapist. Most importantly S.P.G. wanted to return to the family home.

[6] On April 17, 2020, the society issued a Status Review Application seeking a final order that S.P.G. be placed in the interim care of the society for a period of six months. The society also brought a motion for a temporary order placing S.P.G. in the care and custody of the society pending final adjudication of the Status Review Application.

[7] The society's motion first came before me on April 23, 2020 at which time it was adjourned to May 4, 2020 to allow the father and step mother to respond to the motion.

[8] On May 4, 2020 I heard submissions from the parties and adjourned the motion to May 27, 2020, to allow the society and counsel for the child to consult with S.P.G.'s therapist and determine if she could provide additional evidence on the motion.

[9] On May 27, 2020, the court was advised that S.P.G.'s therapist would not cooperate to provide evidence on the motion. S.P.G. agreed to sign a direction to allow her therapist to give evidence on the motion and the motion was further adjourned to allow her counsel to prepare the direction and provide it to S.P.G.'s therapist. The motion was adjourned June 19, 2020.

[10] On June 19, 2020, the court was advised that S.P.G.'s therapist would not provide any information to her lawyer or to the society despite her request to do so. The motion was scheduled to be completed on July 8, 2020.

The Applicable Law

[11] This motion is governed by subsection 113(8) of the CYFSA which provides that on a motion to vary a care and custody order within a Status Review Application, "the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody."

[12] It is not disputed that the society has the onus of demonstrating that the change in circumstances affecting S.P.G.'s best interests require a temporary change in her placement pending the outcome of the Status Review Application. As part of the best interest analysis, the court must consider the specific factors listed in subsection 74(3) of the CYFSA.

Judicial Interpretation of Subsection 113(8) of the CYFSA, Section 64(8) of the Predecessor Legislation, the Child and Family Services Act (CFSA)

[13] There are two lines of cases interpreting subsection 113(8) of the CYFSA and 64(8) of the CFSA and more specifically what weight or importance is to be afforded to the use of the word "require" in the legislation.

[14] One line of cases enumerates a test that mandates a material change in the circumstances of the child such that a change in placement is required to meet her best interests. These decisions emphasize the need to demonstrate a material change or a significant change before it will alter a care and custody arrangement found to be in the child's best interests following a trial or based upon agreed findings of fact set out in a Statement of Agreed Facts.

[15] The courts in these decisions stress the importance of not interfering with a status quo created by a final order lightly especially when the affidavit evidence on the motion to vary the final placement on a temporary basis is untested. Due to the importance of stability and continuity of care for a child in a child protection proceeding, some courts have interpreted subsection 113(8) and more specifically the use of the words "require a change" to mean that the court must find that the change in circumstances is significant such that it creates a need for a change as opposed to the change being "merely desirable". See: Kawartha-Haliburton Children's Aid Society v. A.R. and D.F., 2020 ONSC 2738; Catholic Children's Aid Society of Toronto v. K.G., 2020 ONCJ 208; CAS Algoma v. S.S., 2010 ONCJ 332; and Children's Aid Society of Toronto v. S.G., 2011 ONCJ 746.

[16] The other line of cases state that it is not necessary to import the test of material change in circumstances into subsection 113(8) of the CYFSA and rather what is required is to demonstrate that there has been sufficient change that effects the child's best interests requiring a change to her placement. What is sufficient depends on the circumstances of the case. See: The Durham Children's Aid Society v. J.L., P.L.(F) and P.L.(GF), 2016 ONSC 5925 and Children's Aid Society of the Regional Municipality of Waterloo v. A.M., M.E., and I.B., 2020 ONSC 1435.

[17] At paragraph 26 of The Durham Children's Aid Society v. J.L., P.L.(F) and P.L.(GF), Justice P.W. Nicholson rejects the need to find a material change in circumstances and says, "Although the order at the conclusion of a child protection application is considered a final order, child protection proceedings in general should be considered fluid until the matter is finalized either by termination of all protection orders or a crown wardship order. Therefore, the court is not bound to find a material change in circumstances before a final order made under a child protection application can be varied. The court is called upon at this stage to determine what is in the best interests of the child."

[18] Counsel for the society and the OCL both ask the court to follow the second line of cases and take a more flexible approach to determining if a change has occurred that requires a temporary change to S.P.G.'s placement pending the final outcome of the Status Review Application.

What Approach Should Be Taken When Interpreting Subsection 113(8) of the CYFSA?

[19] The introduction of the CYFSA in April 2018 ushered in legislation with a very clear mandate to make decisions that are informed by a child's experiences, best interests and views and preferences. One would correctly argue that this has always been the approach towards decision making in child protection proceedings but the CYFSA places upon the court an enhanced requirement to focus on the best interests and views and preferences of the particular child before the court.

[20] The interpretation of subsection 113(8) starts with a consideration of the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1(1) and (2) of the Act).

[21] Justice Benotto wrote at paragraph 31 of Children's Aid Society of Toronto v. J.G., 2020 ONCA 415, "The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87."

[22] The court must also be cognizant of the realities facing a parent involved in child protection proceedings. As Justice Benotto wrote in Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, at paragraph 69, "Poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings. If we do not face up to this reality we risk forgetting the hard-learned lessons of the past by exacerbating pre-existing inequities and harms."

[23] The introduction of the CYFSA has resulted in a movement towards a more liberal approach towards judicial interpretation of child protection legislation, which approach was approved by the Ontario Court of Appeal in Children's Aid Society of Toronto v. J.G., 2020 ONCA 415. At paragraph 45 Justice Benotto writes, "The CYFSA is remedial legislation enacted for the protection of society's most vulnerable children. It must be liberally construed to the benefit of the child."

[24] These comments by Justice Benotto reiterate and even expand upon her Honour's comments in Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, at paragraph 38 where Justice Benotto writes about the CYFSA, "the Act is remedial legislation and so should be interpreted liberally."

[25] It is with the clear direction of the Ontario Court of Appeal to interpret the CYFSA liberally and to the benefit of the child that I approach the interpretation of subsection 113(8) of the Act.

The Use of 'Material Change' as Developed in Domestic Case Law

[26] The line of cases referred to above in which the court required a material change in circumstances before varying a final care and custody order on a temporary basis with a Status Review Application, has similarities to the interpretation of "material change in circumstances" in domestic case law.

[27] A material change in circumstances in domestic litigation is defined as a change of circumstances that is significant as opposed to trivial or insignificant: Hickey v. Hickey, [1999] 2 S.C.R. 518.

[28] Change alone is not enough to establish a material change in circumstances in domestic case law involving requested changes to final orders for custody or access, "the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order." Gordon v. Goertz, [1996] 2 S.C.R. 27, paragraph 12.

[29] The application of the judicial interpretation of "material change in circumstances" creates a significant onus on the moving party in domestic litigation to establish that there has been a material change in circumstances warranting a review of a previous order. The rationale for this is to put controls on frivolous litigation and attempts to re-litigate or appeal decisions by way of a Motion to Change a final order.

[30] It is not appropriate to import the definition of material change as set out in domestic case law into child protection proceedings. As Justice Sherr points out in Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784, "Domestic cases are private disputes. Child protection cases involve the intrusion of the state into the autonomy of family life." In addition, the primary objectives under the CYFSA to protect children and help parents care for their children in the least intrusive manner appropriate in the circumstances are different than the primary objectives in domestic legislation which is designed to assist families in addressing issues that arise from the breakdown of relationships or the separation of spouses.

[31] The test of material change in circumstances in domestic litigation has a long and complicated history. It is my preference not to use the domestic version of the term "material change in circumstances" in child protection proceedings where possible in order to protect against setting standards and expectations that do not belong in child protection proceedings.

How Should the Court Approach the Determination of Whether "the Child's Best Interests Require a Change in the Child's Care and Custody" Under Subsection 113(8) of the CYFSA?

[32] When considered in the context of the purpose of the legislation as a whole and the wording of subsection 113(8) of the CYFSA, I do not agree with the line of cases that find a material change in circumstances is always required before varying a final placement on a temporary basis. Subsection 113(8) uses the words "require a change". The legislature chose not to use the words "material change in circumstances". Why import the words, "material change" into legislation that is remedial and child focused? This will create in some cases an unnecessarily high bar for a party to reach and is contrary to the court's obligation to liberally construe the legislation to the benefit of the child.

[33] Always requiring a material change in circumstances to vary a final order on a temporary basis within a Status Review Application, in my view, flows from a less flexible interpretation of the legislation. I agree with the line of cases that promote a more flexible approach towards deciding this issue. A flexible and liberal approach towards interpreting subsection 113(8) of the CYFSA is necessary in order to recognize that the best interests of some children will require a placement change due to some change in their life or the lives of their caregivers, possibly not material, while other children may require a significant or consequential change before a placement should be varied on a temporary basis within a Status Review Application. In many Status Review Applications, the factors of stability and continuity will have heightened importance. The flexible approach allows us to consider the individual child before the court and her particular circumstances and needs.

[34] In order to determine whether there should be a temporary change to a final care and custody order on a Status Review Application, the court must consider all of the relevant and reliable evidence on the motion within the context of the case as a whole, and decide if the evidence demonstrates that a change in the child's life has taken place that impacts their best interests requiring a temporary change to their placement pending final adjudication of the Status Review Application.

The Position of the Parties

i. The Society's Position

[35] The society brought this motion because, it claims, S.P.G. is not doing well in her father and step mother's care and the situation is deteriorating. The society says that S.P.G. is not happy and spoke about self harming. This was reported by her therapist to the society in January 2020.

[36] The society argues that the father and step mother have not done enough to engage in services to assist S.P.G. and that their conduct in the home puts her at risk of emotional harm. The society cites as their primary concern the risk of emotional harm to S.P.G. if she were to remain in her father and step mother's care.

[37] It is not disputed that S.P.G. has displayed some concerning behaviours in her father and step mother's home. She wakes in the middle of the night and eats and hoards food; she rummages through the belongings of other members of the household and sometimes takes items that do not belong to her; and she admits to lying and attempting to manipulate the adults in her life including her lawyer and her therapist.

[38] What is disputed is the appropriateness of the father and step mother's responses to S.P.G.'s behaviour. The society is very critical of the choices the father and step mother have made to address S.P.G.'s behaviour. The father and step mother repeatedly referred to S.P.G.'s taking food in the night and items that do not belong to her as "stealing". They also put an alarm on S.P.G.'s bedroom door to alert them when she leaves the room contrary to the society's advice and opinion that this would be a trigger for S.P.G. Finally, the society claims that the parents show little insight into the meaning behind S.P.G.'s behaviour and that they have failed to pursue appropriate services to assist them in managing her behaviour.

[39] The society is also concerned about S.P.G.'s recent announcement that she wishes to move to the Dominican Republic to live with her mother. The society finds this change to be concerning as S.P.G. had never mentioned wanting to return to the Dominican Republic. Despite their concerns, the society requested an assessment of the mother's plan and home in the Dominican Republic and advised the court that they would support S.P.G.'s return to her mother if the home is approved by International Social Services and the society.

ii. The Father and Step Mother's Position

[40] The father and step mother oppose the relief being requested by the society. The father and step mother support S.P.G.'s return to live with her mother in the Dominican Republic but argue she should remain in their care and custody until the move. They say they are engaged in services to help understand and manage S.P.G.'s behaviour and that they are doing all that has been recommended of them to improve their parenting.

[41] The father and step mother also argue that the society has not been overly helpful in that they have not disclosed important information in a timely fashion and did not provide the father and step mother with reports when they became available including a psychological assessment of S.P.G. They also question why they were not involved in the assessment process. The step mother says that they were often told important information while in court during the proceeding. They feel like they are expected to "fix the problems" without having all the pertinent information.

[42] The father and step mother say that the society has engaged in "blame and shame". They say that the society did not work to assist the family in the reunification process and that the situation had deteriorated after S.P.G. returned home because of the society's lack of communication. They say the situation has improved because of the therapy the family is involved in and not due to anything the society has done.

[43] The step mother also highlights S.P.G.'s behaviour in which she makes false allegations and later recants what she has said. The step mother says this occurs not only at home but at school with friends and at the foster home.

[44] The father and step mother say that the therapy the family is involved in separately and together is going very well and that they are all working towards the same goal which is to improve both theirs and S.P.G.'s understanding of the cause or source of her behaviour and how to appropriately address difficult behaviour.

[45] Finally, the parents say that S.P.G. does not want to go back into the care and custody of the society and given her age, her wishes should be respected.

iii. The Position of the Office of the Children's Lawyer

[46] The OCL opposes the society's motion and reports that S.P.G. has very strong wishes and preferences to remain at home with her father, step mother and half-brothers until she moves to the Dominican Republic to live with her mother.

[47] The OCL argues that I must consider how the Covid-19 pandemic has affected the availability of services for the family and the ability to access services in a timely fashion given that there have been interruptions in services. Mr. Glass argues that in all of the circumstances, it is difficult to conclude that the parents are not doing what is required of them on a timely basis.

[48] The OCL emphasizes that since early March 2020, S.P.G. has consistently and expressed strong views about wanting to remain in the care and custody of her father and step mother. At 13 years of age, after being in care for over a year and in two foster homes, the OCL argues that S.P.G. has the experience of living in foster care and despite things not being perfect at home she wants to be there. The position of the OCL is that given all that S.P.G. has been through after being born in the Dominican Republic, coming to Canada with her father, not seeing her mother in several years and living in foster care for over a year, her wishes should be given significant respect by the court.

The Evidence

[49] The society's evidence is that since S.P.G. returned home to her father and step mother's care, her situation has deteriorated. Concerns began when her therapist reported to the society on January 16, 2020, that S.P.G. had made threats of self harm. A safety plan was implemented by the father and step mother.

[50] S.P.G. said that she lied to her therapist when she threatened to harm herself. The therapist has not reported any additional concerns about S.P.G. self harming.

[51] The society's concerns with the current placement escalated as S.P.G. began making reports to the worker in February 2020 that she was not happy in her father and step mother's care; that she spent most of her time in her bedroom; that she was always getting in trouble at home; that her parents did not want her home and that she wanted to know if she could go back into foster care; that she wished to return to live with her mother in the Dominican Republic and wanted to return to foster care until she leaves Canada; and, that her father and step mother told her they do not want her in the home.

[52] The father and step mother acknowledge an escalation of unwanted behaviour by S.P.G., but they believe they are all learning to better understand the behaviour and how to address it in the therapy they are all currently involved in at York Hills.

[53] The society's concerns were exacerbated by what they considered to be a lack of enthusiasm by the parents to obtain services for themselves and S.P.G. The society's evidence is that the parents have not pursued therapy in a timely fashion, missed several appointments for them and S.P.G., and, they have not pursued private services that they can afford.

[54] The father's evidence is that they were advised not to pursue counselling with different agencies as it might conflict with the work the family was doing at York Hills where S.P.G. is receiving individual counselling.

[55] The parents dispute the society's version of events claiming that they have followed up on each and every referral returning calls in a timely fashion, taken S.P.G. to her counselling appointments, arranged an assessment for her, cooperated fully with the society, maintained communication with S.P.G.'s therapist, and done everything expected of them.

[56] The society also took issue with the manner in which the father and step mother interacted with S.P.G., specifically referring to her taking food in the middle of the night as "stealing". The society states that it is very concerning that the father and step mother speak about S.P.G. in negative terms as does S.P.G. They say this is evidence of the deterioration in the father and step mother's home and highlights the risk of emotional harm to S.P.G.

[57] The father and step mother admitted to using the word "stealing" to describe S.P.G.'s behaviours but have committed to changing their language and addressing this issue in therapy. S.P.G. refers to her actions as "stealing".

[58] The society says that S.P.G. did not display the concerning behaviour in the foster home that is being seen in her father and step mother's home. The parents strongly dispute this statement.

[59] The society's patience with the father and step mother seems to have been pushed to the brink when they put an alarm on S.P.G.'s bedroom door contrary to the worker's very strong opinion against doing so. The society strongly opposed the installation of an alarm as they had done this in the past which resulted in a very negative reaction from S.P.G. After discussing the decision to install the alarm against the society's wishes with the parents, the worker advised the father and step mother that they would be seeking an order bringing S.P.G. back into care.

[60] The parents explained that they put the alarm on S.P.G.'s door in order to alert them when she leaves in the night as she has fallen and hurt herself and eaten food she should not, such as raw chicken. The father and step mother explained that this was the only way they would know if S.P.G. got up in the night and as her behaviour in this regard has escalated, they did not know what else to do to protect her.

[61] After previously telling the worker that she did not like the alarm on her door and it made her feel like a robot, S.P.G. recently told the worker that she has become accustomed to the alarm on her bedroom door and understands that her parents put it there to protect her.

[62] The worker raised the issue of the alarm on S.P.G.'s door with her therapist in a conversation on April 6, 2020. The counsellor told the worker she was "unaware of this development". The therapist also told the worker that S.P.G. reported to her that she "liked being at home with her family". The therapist asked about the parents attending parenting workshops to assist them in acquiring skills to care for S.P.G. She recommended a two day intensive workshop offered through her agency.

[63] The issue of the alarm on S.P.G.'s bedroom door came up again when the worker spoke to her therapist on May 21, 2020. According to the worker, when she raised the issue of the alarm her parents put on her bedroom door with S.P.G.'s therapist, "the therapist said that she had not made any formal recommendations regarding the alarm and would be following up with her supervisor."

[64] In March of 2020 S.P.G. began to report being happier in her father and step mother's home, that she interacted more with the family, that she only went to her bedroom when she wanted to and that no one forced her to spend time in her room, that she was getting along better with her step mother and played more with her brothers, that she liked her therapist and found counselling helpful, that she still wished to return to the Dominican Republic to live with her mother but wished to remain in her father and step mother's care until that time.

[65] The step mother strenuously denied ever forcing S.P.G. into her bedroom. Her evidence is that she would go there on her own but that more recently she is spending more time with the family. According to the society, S.P.G. has spoken more positively about her daily routine and her interactions with her family. On April 3, 2020, S.P.G. told her worker she felt safe in the home, was spending more time with her step mother and brothers and that things were better.

[66] The society argues that the change in S.P.G.'s views and preferences are suspiciously aligned with those of her father and step mother. The society believes that S.P.G. is tailoring what she says to support the wishes of her father and step mother. The step mother and father report that S.P.G. has always maintained a desire to return to the Dominican Republic to see her mother.

[67] The society's evidence is that S.P.G. called the worker on June 10, 2020 and told her that it is time for her to start telling the truth as she has been lying to the worker. She says she is making everything more difficult for everyone and she wants to stay home with her parents and does not want to go into foster care. When asked why she is telling the worker this now, S.P.G. advised that "she is ready to change and be truthful now".

[68] During that telephone call, S.P.G. told the worker she is happy at home, that she is having more fun and that the "good days outweigh the bad days". "She says she plays with her brothers, goes for bike rides and puts herself in her room; no one puts her in there." She told the worker she is fine with the alarm on her bedroom door and that it is there for her parents to hear that she has left her room. She said her parents do not follow her around when she leaves her room.

[69] The society questions the parents' commitment to S.P.G.'s wellbeing and treatment needs and is concerned that that lack of action taken by the father and step mother will result in S.P.G. not being ready to leave Canada for the Dominican Republic once the move is approved by the society and the court. The society is extremely concerned about the emotional toll remaining in the family home will have on S.P.G. due to the parents' treatment of S.P.G. including:

(a) Referring to her actions as "stealing";

(b) Isolating her from the rest of the family;

(c) Blaming her for her behaviour;

(d) Demonstrating behaviour of rejecting her;

(e) Being unable to manage her behaviour effectively and failing to take steps to address their parenting style;

(f) Putting an alarm on her bedroom door; and,

(g) Being insensitive and lacking compassion for her.

[70] In order to contest the society's conclusions about their commitment to and understanding of their daughter, the father and step mother rely on the following undisputed evidence:

(a) When S.P.G. made threats of self harm in January 2020, the father and step mother cooperated to implement a safety plan including close supervision of S.P.G. and removing any sharp items from her bedroom;

(b) After some conflicts around scheduling appointments in late 2019 and early 2020, the parents are facilitating weekly appointments between S.P.G. and her therapist;

(c) The parents have maintained contact with S.P.G.'s therapist and discuss how to better manage her behaviour;

(d) The parents have ensured that S.P.G. has regular access to her worker and her lawyer;

(e) The parents cooperated to attend family counselling with Samantha Cohen who suspended the counselling until the trauma assessment of S.P.G. was completed;

(f) The parents have cooperated to attend the sessions to complete an Intensive Family Consultation Resource Assessment with Ariel Gersman;

(g) The parents have been working with a child and family therapist assigned to work with them by the manager of York Hills on May 19, 2020;

(h) The parents are in contact with S.P.G.'s doctor to monitor her medication for ADHD;

(i) The step mother has taken parenting courses on line and contacted a retired psychiatrist to obtain advice on an ADHD assessment of S.P.G.; and,

(j) The step mother arranged for a Canadian ADHD Resource Alliance assessment of S.P.G. to assist the parents and her school to better meet her needs.

Conclusion

[71] I find that the society has not demonstrated a change in S.P.G.'s circumstances that affect her best interests requiring a change in her placement at this time. There is no question that S.P.G. is having difficulties at home with her father and step mother. The parents do not deny this. The difficulties facing the family at this time do not rise to a level of concern that requires a change in S.P.G.'s placement.

[72] There is no question that the society and the court were concerned about the parents' lack of engagement when S.P.G. was in care. It is noted on the record on more than one occasion that the parents had not done what was expected of them to support S.P.G.'s return to the family. In June of 2019 the society advised they would amend the Protection Application to seek an order for extended care if the parents' attitude did not change.

[73] S.P.G. was returned to her father and step mother's care in August 2019 as her situation had improved. The society and the OCL supported S.P.G.'s return to her father and step mother's care on a final basis and in January 2020 an order was made accordingly. The father and step mother are now ensuring that S.P.G. attends weekly therapy. The father says that S.P.G. is addressing many new issues coming to light in therapy.

[74] The father and step mother are currently engaged in services that have been referred to them by the same organization that is servicing S.P.G. The parents are reporting progress. S.P.G. is reporting progress. The family should be given time to continue the counselling and hopefully grow and learn as anticipated so that they can all contribute towards creating a healthier relationship. Now is not the time to change S.P.G.'s placement as doing so may unravel the work that has being done and took so long to implement.

[75] The parents should be given the opportunity to pursue the counselling and resources to which they were recently referred. They should be afforded a reasonable amount of time to do their part in addressing their parenting issues. Prior to the global pandemic the parents had to juggle their full time jobs and the care of their other two children with taking S.P.G. to her counselling and pursuing counselling for themselves. It is well known that resources are scarce at the best of times. Despite that, the family has been able not only to continue S.P.G.'s counselling but to arrange for additional counselling for the parents and family.

[76] The alarm on S.P.G.'s bedroom door may be concerning but I find that this is an issue to be addressed in the counselling the parents and S.P.G. are receiving. It is noteworthy that when the society worker asked S.P.G.'s therapist about the alarm on her bedroom door, her response was not that it should be removed but that she did not have an official response and wanted to discuss the issue with her manager. This suggests that the question of the appropriateness of the alarm on S.P.G.'s door may not be as easily determined as the society believes.

[77] The society is rightfully concerned about S.P.G.'s emotional wellbeing. It feels the father and step mother are engaging in behaviour that puts her at risk of emotional harm. To some extent they rely on what has been reported to them by S.P.G. The difficulty the court has is that S.P.G. is known to be untruthful. In the past she made many allegations that she later recanted; sometimes against her parents. She told her worker she lies and manipulates. On the Canadian AHDH Resource Alliance teacher rating scale completed by S.P.G.'s grade 7 teacher, when asked to indicate the primary areas of concern, the teacher wrote amongst other things, "telling lies". In the Statement of Agreed Facts signed by the parties and filed with the court on September 12, 2018, the parties agreed that S.P.G. admits to stealing, lying and that she did not know how to stop.

[78] The society asks the court to accept that S.P.G. is being truthful when she maligns her father and step mother but to disregard her statements in which she says she was not being truthful when she did so. In all of the circumstances, some of what S.P.G. reports to the society workers cannot be relied upon to make a major change in her life by removing her from her father and step mother's care and placing her in the care and custody of the society.

[79] There is some stability in S.P.G.'s life right now in the care of her father and step mother. Considering the issues facing this young woman and her family, I find that the evidence does not disclose a change since the final order was made that requires a temporary change to her current placement. The evidence suggests that the risk to S.P.G.'s wellbeing appears greater if she is removed from the care and custody of her father and step mother.

[80] I am mindful of the wording of the preamble to the CYFSA which states that the government acknowledges that children are individuals with rights to be respected and voices to be heard. Subsection 74(3)(a) requires the court to "consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained".

[81] S.P.G. is 13 years old. She is described as an intelligent well spoken young woman. Her lawyer advises the court that S.P.G. has very strong wishes to remain in the care of her father and step mother. He reports that those wishes have been consistent since March 2020. S.P.G. has told the worker that she does not want to return to care and if she is required to do so her mental health will deteriorate. The court must consider her comments as informed considering she was in care for over a year between 2018 and 2019.

[82] S.P.G. came to Canada at the age of 5 from the Dominican Republic to live with her father and step mother. After the society became involved with the family in 2018, she spent 15 months in care during which she lived in two foster homes. She has been in the care and custody of her father and step mother since August 2019. She may be moving to the Dominican Republic in the near future. In all of the circumstances, the court ought to give significant consideration and weight to S.P.G.'s views and preferences on this motion.

Order

[83] The society's motion is dismissed.

[84] The parties shall ensure that the original documents relied upon on the Motions are filed in the Continuing Record as soon as they are permitted to do so.

Released: July 31, 2020

Signed: Justice Melanie Sager

Footnotes

[1] The wording of subsection 113(8) of the CYFSA is identical to the wording of subsection 64(8) of the predecessor legislation the CFSA.

[2] This assessment was done in 2018 when S.P.G. was in care and not provided to the father and step mother until June 2020.