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: 2020-01-28
Court File No.: Brantford C151/15
Between:
The Children's Aid Society of Brant Applicant
— AND —
A.H., C.T. and L.L. Respondents
Before: Justice A.D. Hilliard
Heard on: January 8, 2020
Reasons for Judgment released on: January 28, 2020
Counsel
E. Capitano — counsel for the applicant society
E. Van Looyen — counsel for the respondent mother, A.H.
L.L. — on her own behalf
No appearance by or on behalf of C.T., having previously been noted in default.
A. Macdonald — counsel for the Office of the Children's Lawyer, legal representative for the child
Decision
Hilliard, J.:
Overview
[1] This is a motion brought by the Respondent mother, A.H., requesting the return of the child, J.T., to the joint care of her and her mother, the Respondent maternal grandmother, L.L., or in the alternative, an order providing for expanded access for the Respondent mother with J.T. including alternate weekends and two (2) mid-week visits after school.
[2] At the outset of the argument on the motion, counsel raised the preliminary issue of what is the legal test applicable on interim motions to change a temporary care order made on a Status Review application.
[3] For the reasons that follow, the motion shall be allowed in part.
Background
[4] A final order was made on July 8, 2019, in the protection application proceedings involving these parties and this child. That order provided for J.T. to be placed in the care of the Respondent mother and the maternal grandmother, subject to terms of supervision. The return of J.T. to mother and grandmother's care was to be implemented on a gradual basis with J.T. anticipated to be fully integrated back into the care of A.H. and L.L. by August 19, 2019.
[5] On August 15, 2019, J.T. was taken back into the care of the Society due to concerns that A.H. was breaching the terms of the supervision order.
[6] An early status review application was commenced as a result of J.T. being taken back into the care of the Society.
[7] The first court date on the Status Review was August 20, 2019.
[8] On the second appearance, at the request of the Respondent mother and grandmother, a temporary care and custody hearing was scheduled to be argued on October 8, 2019.
[9] On October 8, 2019, both mother and grandmother requested an adjournment of the temporary care and custody hearing in order to retain counsel. Neither had filed an Answer and Plan of Care, nor an affidavit. The Society opposed the adjournment request and submitted that having been given two previous extensions of time to serve and file materials, the court should make the temporary without prejudice order the temporary care order. I found in favour of the Society's position and on October 8, 2019 the temporary without prejudice order made on August 20, 2019 placing J.T. in the care of the Society was made the temporary care order.
[10] The Respondent mother, with the assistance of counsel, filed this motion in early November 2019 which was scheduled for argument on January 9, 2020.
[11] At the outset of the argument of this motion, counsel raised with the court their disagreement as to what is the legal test to be applied by the court on a motion to change a temporary care order on a status review.
Issues
[12] The following are the issues to be decided on this motion:
What is the legal test on a motion to change a temporary care order made on a Status Review?
Is there a different legal test if the request is a change in the child's placement versus a change to a parent's access regime?
Has the threshold test been met for a review of either placement of or access to the child?
What is the appropriate order to be made for placement of or access to the child?
Analysis
Issue 1 – What is the legal test on a motion to change a temporary care order made on a Status Review?
[13] Section 113(8) of the Child Youth and Family Services Act (CYFSA) provides the authority for this Court to make an order regarding the interim care and custody of J.T. in this status review proceeding:
INTERIM CARE AND CUSTODY – If an application is made under this section, 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 requires a change in the child's care and custody.
[14] Counsel for the Respondent mother submits that mother must only demonstrate that a change in circumstances has occurred since the last temporary care and custody order.
[15] Counsel for the Society submits that the Respondent mother must demonstrate a material change in circumstances in order for this Court to consider a change to the interim care and custody of J.T. on this status review.
[16] Both counsel concede that there is no specific legislative direction in the CYFSA as to what legal test is to be applied to a request to vary an interim care order on a status review.
[17] The Respondent mother concedes that whatever the test – change or material change – the onus falls on her to demonstrate the requisite change has occurred.
[18] The Society submitted that the Court should find that a motion requesting a change to a temporary care order made on a status review is analogous to the same such motion on a child protection application.
[19] Although it is settled law that a court must find that there has been a material change in circumstances prior to changing a temporary care order on a protection application, counsel was unable to provide me with binding precedent on the issue in status review proceedings.
[20] I also note that while the test in a protection application has been stated as "material change" courts have found that a flexible approach must be taken in determining what constitutes a material change.[1]
[21] The threshold of material change in circumstances imposed by the jurisprudence in protection applications was in recognition of the statutory scheme that emphasizes stability and continuity for children.[2]
[22] Material change in circumstances has become a legal term of art and one that has caused some debate in child protection proceedings requiring judicial commentary and explanation on the definition of this term.[3]
[23] On a status review application, just as in protection applications, the Court must balance and consider the need to maintain the status quo, for the stability and predictability of the child(ren), while not creating an insurmountable barrier for parents to overcome prior to requesting a review of a temporary order placing children in the care of the Society.
[24] Child protection proceedings are fluid by nature, and courts must recognize and contemplate the potential for parents to make positive changes in order to remediate the protection concerns that resulted in their children being removed from their care.
[25] Temporary orders are by definition transitory. It is clear that throughout an ongoing child protection proceeding, whether protection application or status review application, the Court may consider changes in the circumstances of the parent(s) that merit a review of a temporary order made for the placement of children.
[26] To impose a threshold of a material change in circumstances akin to what is required to be demonstrated in a motion to change a final order in a proceeding under the Children's Law Reform Act is not the appropriate test in my view. To require parents to demonstrate a change that was not reasonably foreseeable or contemplated prior to the making of the temporary order is to set the bar impossibly high. There is an expectation that parents will strive to improve throughout the course of child protection litigation and demonstrate that they have made progress in completing the goals set out for them, either by the Society's Plan of Care or by the Court, by way of terms of a supervision order.
[27] However, it is not the case that any change will justify a review of a child's placement. A parent having simply demonstrated that they have attended supervised access consistently and met with the worker at all scheduled times, while having not taken any positive steps to remediate the protection concerns that brought their child(ren) into care will surely not be sufficient.
[28] In assessing whether a parent has made sufficient changes to warrant a review of a child's placement, the Court must be mindful of the importance of stability and predictability for all children who are the subjects of child protection proceedings. Having been removed from the care of a parent or caregiver once, a Court must carefully consider the risks associated with another change in the child's placement on an interim basis, even at this preliminary assessment stage.
[29] I therefore find that the appropriate test to be applied by the Court on the review of a temporary care order on a status review is a change in circumstances that is sufficiently material to warrant a review of the placement of the child by the Court. The onus is on the party requesting a review of the placement of the child to demonstrate that this threshold requirement has been met.
Issue 2 – Is there a different legal test if the request is a change in the child's placement versus a change to a parent's access regime?
[30] It was conceded by the Society that the threshold test on a motion to change the provisions of a temporary access order is lower than what is required for a change to a child's placement.
[31] I agree that there is a significantly lower standard to be imposed when considering the issue of access on a temporary basis.
[32] In my view, a court may, at any time, review temporary access provisions when presented with evidence that a change to the access regime is in the child(ren)'s best interests.
[33] Even evidence of consistent and timely attendance for access visits that are objectively described as a positive experience for the children may suffice to justify a court's review of the access regime.
Issue 3 – Has the threshold test been met for a review of either placement of or access to the child?
[34] The Respondent mother's evidence is that although she allowed her partner, C.B., to be present in the home in contravention of the terms of the previous supervision order, it happened only on two (2) occasions. She deposes that she will not allow C.B. to be present in the home again overnight and that she will comply with any terms of a supervision order regarding C.B.'s presence in the home. Her evidence in this regard is comprised of statements of intention not demonstrable change.
[35] I am not satisfied that C.B.'s presence at the home of the Respondent mother is as infrequent as she deposes. I accept the evidence of the family service worker that C.B. has been present at almost every occasion that she has attended the Respondent mother's home.
[36] I do not accept the Respondent mother's statement that J.T. is her priority. Nowhere in the Respondent mother's evidence is there any acknowledgement that the choices she has made in relation to the time she allowed C.B. to be present in the home, resulted in J.T. being brought back into the Society's care.
[37] I accept that the access the Respondent mother is having with J.T. is positive. I find that there have been no specific protection concerns reported with respect to access.
[38] However, the Respondent mother has taken no positive steps towards remediating the ongoing child protection concerns. She states that if J.T. is returned to her care she will ensure that C.B. is not present in the home. However, this condition was part of the terms of supervision in the final order on the protection application, and she breached that term less than a month after the final order was made.
[39] There are ongoing concerns regarding the Respondent mother's mental health. Despite one of the terms of the previous supervision order being that the Respondent mother is to continue seeing her psychiatrist, Dr. Sharma, a follow up appointment was cancelled and has yet to be rescheduled. The Respondent mother's last appointment with Dr. Sharma was August 14, 2019.
[40] The Respondent mother has failed to demonstrate a commitment to working in a cooperative manner with the Society. I accept the evidence of the family services worker that the Respondent mother has, on several occasions, been unavailable to meet with the worker and has not been diligent in returning messages left by the worker.
[41] There is no evidence that the Respondent mother has completed any of the programming contemplated in the terms of supervision, such as Parenting with Love. Mother's explanation for her failure to attend this program is that it conflicted with the time she would have to pick up J.T. from school. I would note, however, that no particulars were provided as to when the Parenting with Love sessions were scheduled and what attempts, if any, the Respondent mother made to have her mother or an alternate caregiver pick up J.T. from school.
[42] The totality of the Respondent mother's evidence about what changes she has made since the temporary care order can be summed up as statements of her intention to comply with court orders, while completely lacking in examples of positive steps that she has taken to remediate ongoing protection concerns.
[43] On the totality of the evidence before me, I am not satisfied that the Respondent mother has demonstrated that there has been a sufficiently material change in her circumstances to justify a review of J.T.'s placement at this time.
[44] I am, however, satisfied that there is sufficient evidence before me to warrant a review of the Respondent mother's access with J.T.
Issue 4 – What is the appropriate order to be made for placement of or access to the child?
[45] The Respondent mother's access with J.T. has been consistent and positive.
[46] I accept that J.T. wishes to spend more time with his mother and that there is evidence of love, affection, and attachment between the Respondent mother and J.T.
[47] Counsel on behalf of J.T. supports an expansion of mother's access at this time as it would be in accordance with J.T.'s views and preferences.
[48] There is no evidence before me of any protection concerns that have arisen during mother's access periods with J.T. since the temporary care order was made.
[49] I am satisfied that it is in J.T.'s best interests for access to be expanded to include overnight visits in the home of the Respondent mother, and mid-week visits after school.
[50] This expansion of access will allow mother an opportunity to demonstrate her commitment to J.T. and will ultimately test the veracity of her statement that she will not allow C.B. to be present in the home overnight.
Conclusion
[51] The child, J.T., shall remain in the temporary care of the Society.
[52] The Respondent mother shall have access with the child as follows:
(1) Week 1 – Wednesday after school until 7:00 p.m., and Saturday at 12 noon until Monday morning at school
(2) Week 2 – Wednesday after school until 7:00 p.m., and Friday after school until Sunday at 12 noon
[53] The Respondent mother shall be responsible for dropping the child off at school on Monday mornings at the end of Week 1, and picking up the child from school every Wednesday and Friday of Week 2.
[54] The Respondent mother shall not allow C.B. to be present in the home from 6:00 p.m. until 8:00 a.m. when J.T. is in her care.
[55] The Respondent mother shall comply with all other terms of supervision included in Justice Baker's order of July 8, 2019, which terms shall form part of this order.
Released: January 28, 2020
Signed: Justice A.D. Hilliard
Footnotes
[1] Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784 at para 57.
[2] Children's Aid Society v. E.L., [2003] O.J. No. 3281 (SCJ) at para 42.
[3] See Children's Aid Society of Algoma v. A.D., 2010 ONCJ 760; Children's Aid Society of Toronto v. K.D., 2011 ONCJ 55, and Catholic Children's Aid Society of Toronto v R.M., supra.