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: October 19, 2020
Court File No.: C40391/20
Parties
Between:
Children's Aid Society of Toronto Applicant
— AND —
S.S. Respondent (mother)
— AND —
A.I. Respondent (Father)
Before the Court
Before: Justice Melanie Sager
Motion Heard on: October 7 and 8, 2020
Decision Released on: October 19, 2020
Counsel
- Chithika Withanage — counsel for the applicant society
- David P. Miller — counsel for the respondent (mother)
- Tariq Wasey Khan — counsel for the respondent (father)
Decision
SAGER, J.:
Introduction
[1] This motion to vary a temporary care and custody order was brought by the Children's Aid Society of Toronto (the society) within a Protection Application. The society requests a temporary order changing the care and custody of the child, F.I., who is 18 months old from the father to the mother.
[2] On May 25, 2020, after being in the temporary care and custody of the society following a motion before Justice Roselyn Zisman on March 24, 2020, an order was made on consent placing F.I. and the parties' 5 year old son, A.I. in the temporary care and custody of the father.
[3] The society brings this motion claiming that there has been a material change in circumstances since the children were placed in the father's care and custody that justifies a change to the temporary order, at least with respect to F.I.
[4] The mother supports the society's motion and has served and filed an affidavit in support of the motion detailing the changes that have occurred in her life since the children were placed in the care of the society and then the father.
[5] The father opposes the motion on the basis that F.I. will not be safe in the mother's care as he does not believe that there has been a sufficient change in the mother's circumstances to justify a change to the temporary order. The father believes that the mother suffers from untreated mental health issues and that she cannot manage the children on her own for lengthy periods of time.
Background of the Litigation
[6] The society commenced a Protection Application on March 17, 2020 and brought a motion without notice to either parent seeking an order placing both children in the society's care.
[7] A temporary care and custody motion was heard on March 24, 2020 and on April 2, 2020, Justice Zisman released her decision on the motion in which she ordered the children to remain in the temporary care and custody of the society as the children would be at risk if returned to the mother's care and a supervision order would not sufficiently mitigate the risks. Justice Zisman found that the children could not safely be placed in the care of the father who provided the court with no details of a plan to care for one or both of the children.
[8] On May 25, 2020, after the father retained counsel and presented a viable plan to care for the children, Justice Zisman granted an order on consent placing both children in the care of the father, where they continue to live up to the date of the motion, subject to the supervision of the society.
The Law
[9] Subparagraph 94(9) of the Child, Youth and Family Services Act (CYFSA) grants the court authority to vary a temporary care and custody order made pursuant to subsection 94(2) at any time prior to the final adjudication of the Protection Application.
[10] The parties all agree that the legal test to be applied when a party is seeking a change to a temporary placement within a Protection Application is whether a material change in circumstances has occurred since the temporary order was made requiring or justifying a change to the temporary placement of the children.
[11] In determining whether there has been a material change in circumstances, the court should consider the paramount purpose of the CYFSA, 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). In assessing best interests, the court should consider the relevant factors set out in subsection 74(3) of the Act. See: JFCS v. H.B.S..
[12] The court must balance the statutory requirement to take the least intrusive measures possible with the need for stability and continuity of care during a period of adjournment of the Protection Application. The rationale for this approach is explained by Justice Spence in Children's Aid Society of Toronto v. K.D., 2011 ONCJ 55, at paragraph 26, where he writes:
"The need for a material change in circumstances may seem like an 'invented' test, but it makes good common sense, when one considers the importance of not lightly disrupting the status quo living arrangements for children, particularly when those living arrangements are stable and relatively risk-free."
[13] Counsel for the society and the mother urge the court to take a flexible approach towards interpreting what constitutes a material change in circumstances as supported by numerous cases interpreting 94(9) of the CYFSA and 51(6) of the predecessor legislation; the Child and Family Services Act. See: Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784.
[14] In Catholic Children's Aid Society of Toronto v. R.M., Justice Stanley Sherr provides a strong rationale for taking a flexible approach towards the determination of whether there has been a material change in circumstances since the last placement order was made. Justice Sherr notes that one must take a flexible approach towards deciding this issue as in some cases only a modest change may be material while in other cases a more substantial change will be required before making a change to a placement.
[15] Justice Sherr reminds us at paragraphs 58-59 of Catholic Children's Aid Society of Toronto v. R.M., that often a temporary care and custody motion is argued on limited or imperfect evidence and that a change in circumstances since the temporary order was made could be the gathering of additional relevant evidence on behalf of one of the parties. Justice Sherr writes at paragraph 60, "If the new evidence points to making a different placement order, courts should not be restricted by an overly technical interpretation of material change to make the appropriate order."
[16] I agree with Justice Sherr's approach towards the interpretation of a material change in circumstances in this case as an "overly technical interpretation" would in my estimation result in decisions that do not promote the purpose of the legislation.
The Initial Care and Custody Motion Heard on March 24, 2020
[17] In order to determine if there has been a material change in circumstances since the children were placed in the care and custody of the society and then the father, I must consider the findings and observations made by Justice Zisman on the initial care and custody motion.
[18] The following are the important observations made by Justice Zisman on the care and custody motion:
(a) The mother fails to acknowledge the society's concerns and instead either minimizes the concerns or blames the father;
(b) The mother has been unable to provide proper supervision of the children, meet their physical and medical needs, keep them safe or meet A.I.'s educational and special needs;
(c) The mother is having difficulty meeting the basic needs of the children;
(d) The mother has put the children's physical health in jeopardy due to her failure to follow through appointments and recommendations;
(e) Both parents have at times failed to adequately supervise A.I.;
(f) There is a history of verbal conflict between the parents to which the children have been exposed;
(g) A.I., who is autistic, has missed a lot of school and the parents did not follow up with obtaining supports for him;
(h) While the mother is not suffering from a mental health issue that is putting the children at risk of harm, her inability to adequately care for the children without explanation raises other concerns; and
(i) The mother has not demonstrated an understanding of the society's concerns or taken any steps to address them despite the society being involved with the family since May 2019.
[19] Justice Zisman concluded that an order placing the children in the mother's care subject to an order for society supervision would not mitigate the risks to the children. Justice Zisman based this conclusion on the following:
(a) The risks to the children continue despite society involvement with the family since May 2019;
(b) The mother does not show any demonstrable understanding of the protection concerns and has not done anything to address them;
(c) Due to the Covid-19 pandemic, the society is not able to supervise caregivers to the extent they did pre Covid-19 and are not conducting home visits;
(d) As daycares and schools are closed due to the Covid-19 pandemic, there are no third parties who would be able to provide the society with information about the mother's care of the children;
(e) In the circumstances, the society would only be able to provide minimal oversight and there would be no other community supports;
(f) The mother has not been open and honest with the society;
(g) The family service worker has had difficulty maintaining contact with the mother who has refused to answer the door for unannounced visits. On one occasion the worker had to call the police to gain access to the mother's home;
(h) The maternal grandmother, who lives with the mother, is not a sufficient protective factor such that the children can be returned to the mother's care and custody; and
(i) The society has been working with the mother on a voluntary basis since May 2019 and since then the mother has not been able or willing to utilize the society's help and has not followed through on recommendations that were made for community services.
The Evidence on This Motion
Who is/are the preintervention caregiver(s)?
[20] The society and the mother argue that the mother was the preintervention caregiver of the children. The father conceded that this is in fact correct but that it is due to the criminal charges he faces which resulted in terms of release prohibiting contact between him and the mother. The father says this resulted in his being removed from the children's lives prior to the society's intervention.
[21] As the facts clearly demonstrate that the mother was the children's primary caregiver prior to the society's involvement, and the father does not dispute this fact, my analysis will proceed on the basis that under the CYFSA, the mother was the only preintervention caregiver to the children.
The Alleged Material Change in Circumstances
The Society's Evidence
[22] The society's evidence is not contested by the father. While the father does not concede that circumstances exist warranting a change to the temporary supervision order placing the children with him, he does not contest the following evidence the society relies upon in support of their position that there has been a material change in circumstances:
(a) Both parents are working very well with the society;
(b) The mother is cooperating to allow workers to enter her home and the society has not been denied entry on unannounced visits;
(c) Mother is working with the Hanen Centre to assist her in better understanding how to communicate with A.I. who is autistic;
(d) The mother reached out to the public health nurse for assistance;
(e) The mother sees her doctor regularly;
(f) The mother attended for a psychiatric assessment and she was not diagnosed with a mental health illness;
(g) The society has not received any referrals or concerns from the father or any community member or professional working with the family;
(h) The mother's access to both children is going very well and she currently has both children in her care every weekend from Friday to Sunday;
(i) The worker has attended at the mother's home on a weekly basis and has not noted any concerns with her interaction with the children;
(j) No one has raised any concerns about the mother's access to the children;
(k) The concerns of the children being subjected to domestic violence is no longer an issue as the parents have separated;
(l) The concerns around the neglect of the children have been addressed as immunizations are up to date and the mother has sought out the help of various people and organizations in the community; and
(m) The protection concerns have been mitigated to the point that it is safe for F.I. to be returned to his mother's care subject to the supervision of the society.
The Mother's Evidence
[23] The mother relies on the additional evidence to demonstrate there has been a material change in circumstances since the children were removed from her care and that F.I. can be safely returned to her care:
(a) The mother is being open and honest with the society;
(b) There is no longer a concern about the mother's lack of structure for the children;
(c) There is no longer a concern about the children's being provided a poor diet or one that is not nutritious;
(d) The mother engaged in counselling with South Asian Women's Centre;
(e) The mother attended The More Than Words program at Hanen Centre, a 13 week program designed to assist participants with the communication and interaction with their autistic child;
(f) The mother registered for the Triple P Seminar Series at Surrey Place and is on the waiting list for the Triple P Stepping Stones program, programs to provide autism support;
(g) The mother has accessed on line parenting resources including through Babies Best Start, Toronto Public Health and Aisling Discoveries;
(h) The mother is now open to receiving support from the society and has demonstrated that since March 2020 by engaging with workers and following up with referrals;
(i) The society is now conducting home visits whereas in March 2020 when the children were ordered into the care of the society, they were not which was of significant concern to Justice Zisman when hearing the temporary care and custody motion;
(j) When the Protection Application was issued and the temporary care and custody motion was heard, the mother was in crisis due to the breakdown of the parties' relationship. She is no longer in crisis and has not been in crisis since March 2020;
(k) F.I. is in the mother's care every weekend from Friday at 12:00 p.m. until Sunday at 8:00 p.m. and A.I. is with her from Friday at 5:00 p.m. to Sunday at 8:00 p.m.; and
(l) While there were concerns around domestic violence in March 2020 when the temporary care and custody motion was argued, that is no longer an issue and in fact, there have been no issues at all around the mother's access or the exchanges which are being done by the father's uncle.
The Father's Evidence
[24] The father does not dispute the evidence of the mother or the society but rather says that the court cannot accept that in only 7 short months, the mother is "miraculously" better and not suffering from any mental health issues. He says that the court should not rely on the psychiatric assessment obtained by the mother as it is a result of self reporting from the mother and is not all that thorough.
[25] The father argues that the society's evidence on the temporary care and custody motion heard in March 2020 is much more reliable than the psychiatric assessment as the society was involved with the family for 21 months while the psychiatrist met with the mother, completed his assessment and wrote his report in 90 minutes.
[26] The father believes that the mother suffers from an undiagnosed mental illness and requires medication.
[27] The father acknowledges that the access has gone well and discloses no concerns at all about the mother's care of the children every week from Friday to Sunday.
[28] The father's evidence is that as a private school teacher, he better understands the needs of the children and can provide a healthier and stable home for them. As an educator, the father's evidence is that he is better positioned to care for their 5 year old son who is autistic.
[29] The father's evidence is that with the help of his sister and uncle, the children have a safe and comfortable home which should not be disrupted.
[30] The Father relies on the fact that the society had been involved with the family since June 2018 but did not commence a Protection Application until the parties separated and he was no longer present to support the mother. This demonstrates that the mother requires his support to properly care for the children.
Analysis of the Evidence
[31] The society argues that the court must follow the evidence before the court which is that the mother does not suffer from a mental health illness. When she was hospitalized in January 2020, she was assessed by a psychiatrist who found she was in crisis but not suffering from mental health issues. Her family doctor denies that she suffers from a mental health illness. The mother also obtained a psychiatric assessment on September 10, 2020, which concludes that she has no mental disorder as defined in the DSM V. The society says the court must accept and rely upon the conclusions of the mental health professionals.
[32] The society says that the mother has addressed the concerns that contributed to her questionable care of the children which placed them at risk of harm. She has separated from the father, she is no longer preoccupied with the father having an extramarital affair, she is focused on improving her parenting skills, she is cooperating with the society and she accepts the help being provided to her by the society. The change in the mother's care of the children is evident every weekend when she has both children in her care; F.I. for 56 hours and A.I. for 51 hours.
[33] The mother asks the court to look at all of the evidence together. The hospital found in January 2020 that the mother was in crisis. Her marriage was ending; she was obsessed with the prospect of her husband having a mistress and was consumed by her belief to the detriment of her care of the children; her husband was charged with assaulting her; and, she became solely responsible for the full time care of their autistic 5 year old son and young baby.
[34] After the father was charged with assault and restricted from having contact with the mother, he took no steps to maintain involvement in the children's lives and had no contact with them for 3 months. As a result, the mother was left to manage the parties' two children while at the same time dealing with her own personal crisis.
[35] The mother argues that everything came to a head for her in January 2020 when she was hospitalized. She says that the report from the hospital makes more sense now in light of the recent report from the mother's doctor and a psychiatric assessment finding that she does not suffer from a mental illness. She says the court can rely on this information and how well she has done addressing the protection concerns to make the order being requested by the society.
[36] Between January and February 2020, the mother was unable to move forward in her life given all the obstacles that led to the crisis whereas now she has demonstrated that she has moved on by the significant change in her attitude towards working with the society to address the protection concerns.
[37] The father dismisses the significance of the recent psychiatric assessment. He says that the assessment is not reliable as it was completed following a short meeting with the mother and is based entirely on the mother's self reporting. The father argues that the author must be subject to cross examination at trial in order to determine the weight to be given to the conclusions in the report.
[38] The father argues that the observations of the society workers over 21 months of involvement with the family provides much better evidence of the mother's mental health than the psychiatrist who met with her for less than an hour and a half.
[39] The father argues that the children are not safe in the mother's care as he does not believe the mother has had a "magical" overnight change. He says that while the access has gone well that is only for 48 hours and that if they are in her care for longer periods of time there is a risk that she will lose her temper.
Conclusion
Has There Been a Material Change in Circumstances Since the Last Placement Order?
[40] I agree with the society that there has been a significant change in the mother's approach towards addressing the protection concerns since the children were brought into care and soon after placed with their father. The society describes the change as remarkable. The mother no longer rejects the society's involvement or assistance but rather welcomes it. She has pursued services and demonstrated a willingness to seek outside help. She facilitates all visits by the worker, most of which are unannounced. Most importantly, the mother has F.I. in her care every week for 56 hours without incident and no concerns have been raised by any party to this litigation or a member of the community.
[41] The mother is no longer in crisis. She is permanently separated from the father. She is not preoccupied with whether he is having an extra marital affair. She is able to care for F.I. without issue or cause for concern every weekend. She has demonstrated adequate parenting skills and willingness to address the protection concerns. She demonstrates insight into the events that led to the society's involvement with the family. She has obtained a psychiatric assessment.
Does the Material Change in Circumstances Require a Change to F.I.'s Placement?
[42] As the society has demonstrated a material change in circumstances, the court must then decide if the change necessitates a variation of the placement order.
[43] The mother was F.I.'s primary caregiver when the society intervened in the parties' lives and an order was made placing the children in care. The temporary order placing the children in the father's care does not change the fact that the mother was the preintervention caregiver and the purpose of the legislation is to restore the family to the preintervention configuration where possible.
[44] The mother has provided the court with additional evidence to support the claim that she was in crisis when she was hospitalized early in 2020. The additional evidence clarifies for the court some of the underlying reasons for the difficulties she was having which led to risk of harm to the children.
[45] The mother has both children in her care every weekend. More specifically, F.I. is in her care for 56 hours or 33.33% of every week. The change in F.I.'s placement from the father to the mother, his preintervention caregiver, based on the evidence, does not increase the risk of harm to F.I. There is no evidence to suggest that the mother is only able to safely and adequately care for F.I. for 56 hours per week and that any amount of time beyond that puts F.I. at risk of harm.
Conclusion Regarding Temporary Care and Custody of F.I.
[46] The society has demonstrated that the risks to F.I. that were present between March and May 2020 have been mitigated by the mother's cooperating and being honest with the society, by her pursuing services and exercising lengthy periods of access to the children without incident or concern. In addition, the society has resumed conducting in home visits which they have been doing on a weekly basis.
[47] The reliable and uncontested evidence on this motion demonstrates that the mother is now capable of having care and custody of F.I. subject to the society's supervision. Given the legislative requirements including the obligation to make the least disruptive order on a temporary care and custody motion and to maintain the child with the preintervention caregiver if that can be done safely either with or without the society's supervision, care and custody of F.I. must be changed from his father to his mother, subject to the society's supervision.
Order
[48] The child F.I. shall be placed in the temporary care and custody of the mother subject to the society's supervision and the terms and conditions set out in the Society's Notice of Motion, paragraphs 1 and 3.
[49] Unless otherwise agreed to by the parties, the father shall have access to F.I. as follows:
(a) Every week from Wednesday at 5:00 p.m. to Thursday at 8:00 p.m.;
(b) Every other weekend from Friday at 5:00 p.m. to Sunday at 8:00 p.m.
[50] This matter is adjourned to November 13, 2020 at 9:00 a.m. before Justice Zisman for a case conference by teleconference. The call in details were provided in my October 8, 2020 endorsement.
Released: October 19, 2020
Signed: Justice Melanie Sager