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
Date: February 6, 2020
Court File No.: C31398-19
Ontario Court of Justice
Parties
Between:
Children's Aid Society of Toronto
Nicole Horwitz, for the Applicant
Applicant
- and -
B.F. and A.N.
Respondents
I.F. and BO. F
Added Parties for Purpose of the Motion
Counsel
The Respondent B.F., acting in person
Zahra Taseer, for the Respondent, A.N.
Jane Long, on behalf of the Office of the Children's Lawyer, for the subject child, E.F.N.
Adeleke O. Oyengule, for the added party on the motion, I.F.
Godwin I. Oware, for the added party on the motion, BO. F
Heard: February 3, 2020
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] This is the court's decision on a temporary care and custody hearing regarding the subject child, E.F.N. (the child). The child is two years old.
[2] The applicant, the Children's Aid Society of Toronto (the society) seeks an order that the child be placed in the temporary care and custody of the respondent, A.N. (the father), subject to terms of society supervision. It asks for an order of no access for the respondent, B.F. (the mother) and for access to the child's maternal grandparents, I.F. and BO. F (the maternal grandparents) to be in its discretion.
[3] The father supports the society's position.
[4] The Office of the Children's Lawyer, on behalf of the child, supports the society's position on this motion, but stressed the importance of access between the child and the maternal grandparents.
[5] The maternal grandparents ask that the child be placed in their temporary care and custody. The mother supports their position.
[6] The court read affidavits from society workers, a clinician from the Office of the Children's Lawyer, the father, and the maternal grandparents. These affidavits included business records from hospitals where the child has received treatment.
[7] The mother has not filed an Answer/Plan of Care and did not file any material on this motion. Her counsel, on consent, was removed from the record at the outset of the motion. The mother is in jail. She was permitted to participate on the motion by teleconference.
[8] This has been a high conflict case with tragic consequences.
[9] On June 12, 2019, the mother, the maternal grandmother and the child were found unconscious in their home due to insulin overdoses.
[10] The mother has been charged with multiple criminal offences, including two counts of aggravated assault, administering a noxious substance and attempted murder. She has been denied bail and has been in jail since June 14, 2019. She is prohibited by the criminal court from having any contact with the child.
[11] The child had been a healthy and happy child. She was in a coma for several days and nearly died from the insulin overdose. She has suffered significant long-term brain damage. She cannot speak and has multiple developmental delays. She frequently has seizures. She has required and will continue to require intensive medical support.
Part Two – Background Facts
[12] The mother is 33 years old. She is of Bosnian heritage and is Catholic. She is a nurse.
[13] The father is 35 years old. He is of Syrian heritage and is Muslim. He is employed as a hedge fund administrator.
[14] The parties met in 2015. They secretly married in September 2016 (they didn't tell their parents). They moved in together in March 2017.
[15] The parties had the one child together.
[16] The parties separated in January 2018. After their separation, the mother moved in with the maternal grandparents in Toronto and the father moved in with his parents (the paternal grandparents) in Hamilton.
[17] The child lived with the mother after the separation.
[18] Except for one visit in February 2018, the mother would not permit the father to see the child.
[19] The father started an application for custody and access in the Ontario Court of Justice in April 2018.
[20] In May 2018, the father was arrested and charged with five counts of assault, two counts of threatening death, two counts of threatening bodily harm and one count of criminal harassment related to the mother. His bail conditions prevented him from communicating with the mother or being within 500 metres of her.
[21] In June 2018, the mother brought an application in the Superior Court of Justice for custody of the child and other relief. Counsel for the mother and the father agreed to a stay of the proceedings in the Ontario Court of Justice.
[22] The father pled guilty in November 2018 of uttering threats and criminal harassment against the mother. The other charges were withdrawn. He was sentenced to 27 days in jail, to be served intermittently. The father served his sentence.
[23] A long motion regarding temporary access was heard in the Superior Court of Justice in May 2019. The mother took the position that the father should have no access to the child.
[24] On June 3, 2019, the motions judge in the Superior Court of Justice (the motions judge) released her decision. She ordered that the father have temporary supervised access with the child. The first four visits would be supervised by a private access supervisor, followed by access supervised by the paternal grandmother, with access to be revisited in three months.
[25] The motions judge thoroughly reviewed the evidence and made many findings of fact in her decision. The court accepts the findings of the motions judge to inform it about the facts that existed at the start of June 2019.
[26] The motions judge found that:
a) The child had no medical issues and was developing at a normal rate.
b) The communication between the mother and the father was nothing short of shocking. They were aggressive, racist and cruel to each other. The motions judge set out several examples at paragraphs 27 to 30, 51 and 54 of her decision.
c) The relationship between the mother and the father was turbulent and dysfunctional.
d) Both the mother and father had been drug users. They had spent over $50,000 partying in 2016.
e) The mother and father terminated this lifestyle in 2017. However, they lashed out at each other, threatening to kill themselves, hurt the other, end the relationship, or in the case of the mother, have an abortion.
f) A careful review of the texts showed that both the mother and father were physically violent to the other at times during their relationship.
g) The motions judge heard an audio from September 2017 where the father's voice was strange and threatening. The motions judge described it as chilling.
h) The mother's threats of suicide and abortion were shocking and dysfunctional. The mother, the motions judge observed, could not gloss over her own erratic and bizarre behaviour during the relationship and focus solely on the father.
i) The mother's attitude towards the father's culture and religion could not be labelled as anything except racist and uninformed. Her insulting texts to the father about his "muslimness" were nothing short of shocking given the mother's education and integration into Canadian culture. The mother's intolerant views should not be allowed to impact the child.
j) The dysfunctional relationship had now permanently ended. There was no evidence of communication between the mother and the father since May 2018. There was no evidence that either of them had been volatile or abusive since that time.
k) The father was a stranger to the child because he had not seen the child since she was three months old – 16 months before. The mother had only permitted one access visit to the child – on February 3, 2018. The father requested further access but was denied by the mother.
l) The mother had accused the father of being a bad or neglectful parent. Nothing could have been further from the truth. When the parties lived together, he was an active parent.
m) The mother had unreasonably refused the father's requests for access. She necessitated multiple court appearances because of her insistence on unreasonable restrictions on access.
n) There was no evidence that the father's bizarre behaviour extended to the child or his ability to parent the child. He had taken courses and was intent on learning to parent. He was in therapy and appeared to accept that he needed help. He accepted responsibility for his previous actions. On the other hand, there was no evidence that the mother had taken any parenting courses or was in therapy despite the fact that the text messages she sent to the father could be representative of an unbalanced personality.
o) The court was not persuaded that the father would do anything to intentionally harm the child.
p) Many of the mother's requests to restrict access bordered on outrageous.
q) The child's development required that she be exposed to both parents' cultures.
r) The child was attached to the mother and the maternal grandparents.
s) Both sets of grandmothers had experience caring for young children. The motions judge found that the paternal grandmother would make a very good supervisor after certain conditions were met.
[27] The motions judge ordered the mother to pay the father's costs of the motion of $10,000.
[28] The mother was very upset by this decision and wrote letters to politicians and the Canadian Judicial Council. Her lawyer reported protection concerns about the father to the society. The society opened a file.
[29] The child was hospitalized due to the insulin overdose at the Hospital for Sick Children on June 12, 2019.
[30] The father spent almost every day and night at the hospital with the child. The maternal grandparents visited daily from 9:00 a.m. until 1:30 p.m. and the paternal grandparents frequently came to the hospital as well.
[31] The child was transferred to the Holland-Bloorview Kids Rehabilitation Hospital (Holland Bloorview) in August 2019. The maternal grandparents would see the child on Mondays and Wednesdays from 3:00 p.m. until she went to bed. On Fridays, the maternal grandmother would sleep over until noon on Saturday. The paternal grandmother would visit on Tuesdays and from noon on Saturday until Sunday. At most other times, the father would be there and sleep there. There was a small single bed in the child's room.
[32] The society reported that it closed its file in August 2019, as it was satisfied about the care that the father was providing for the child.
[33] The father moved in the Superior Court of Justice for temporary custody of the child. The maternal grandparents also moved for temporary custody of the child. A full-day hearing was scheduled for late November 2019.
[34] The society reopened its file in October 2019 due to the imminent discharge of the child from the hospital, the confusion of the medical professionals about who had the authority to make decisions for the child and the increasing conflict between the father and the maternal grandparents.
[35] The society commenced its protection application on November 4, 2019. That day, Justice Debra Paulseth made a temporary without prejudice order placing the child in the father's care, with access to any other person to be in the discretion of the society. She also appointed the Office of the Children's Lawyer to act on behalf of the child.
[36] In November 2019, the child began having weekend visits in the father's home.
[37] In December 2019, the child was released from the hospital into the father's care in Hamilton.
[38] The maternal grandparents have been seeing the child twice each week for two-hour visits at the home of the father and the paternal grandparents in Hamilton. The access has been organized and supervised by the society. The father agreed to leave the home while the maternal grandparents spend this time with the child.
[39] On December 19, 2019, the court set up this temporary care and custody hearing. The maternal grandparents sought party status at that appearance. This was opposed by the society and the father. It was agreed that the maternal grandparents would be made parties for the purpose of the temporary care and custody motion and their request to be added as parties would be argued at a subsequent date.
[40] At the conclusion of the argument of the temporary care and custody motion on February 3, 2020, the court conferenced the issue of whether the maternal grandparents should be added as parties. The parties and the maternal grandparents agreed that no one would oppose the maternal grandparents being added as parties and that the maternal grandparents would be permitted to file Answers/Plans of Care on the issue of disposition only.
Part Three – Legal Considerations on Temporary Care and Custody Motion
[41] The legal test for the court to apply on this motion is set out in subsections 94 (2), (4) and (5) of the Child, Youth and Family Services Act, 2017 (the Act) that read as follows:
94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.
Criteria
(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
Placement with relative, etc.
(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.
[42] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test that the society has to meet.
[43] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) of the Act): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
[44] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. CCAS of Toronto v. J.O.1, 2012 ONCJ 269.
[45] Subsection 74 (3) of the Act sets out considerations for the court in determining the best interests of a child. This subsection reads as follows:
Best interests of child
74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child's physical, mental and emotional level of development,
(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child's cultural and linguistic heritage,
(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,
(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
[46] Clauses 74 (3) (a) and (b) of the Act are mandatory considerations. The child is too young to ascertain her views and wishes. She is not a First Nations, Inuk or Métis child. The court considered the balance of the best interests considerations in subsection 74 (3) of the Act that were relevant to this case.
[47] Subsection 94 (10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Jewish Child and Family Services of Toronto v. A.K., 2014 ONCJ 227 at paragraph 18; CAS of the Regional Municipality of Waterloo v. S.S.H., 2019 ONSC 5365.
Part Four – Priority of Claims
[48] Clause 94 (2) (a) of the Act gives priority in any temporary placement analysis to the person or persons who had charge of the child prior to society intervention under Part V of the Act.
[49] The society met the two-part test set out in paragraph 42 above with respect to the mother. She has been charged with attempted murder, aggravated assault and administering noxious substances. She remains in jail. She is not available to care for the child. Supervision terms would be inadequate to protect the child if placed in the mother's care.
[50] The parties to this motion all agreed that the court should not prioritize the claims of either the father or the maternal grandparents under subsection 94 (2) of the Act – the court should just assess what temporary order is in the child's best interests.
[51] The court is prepared to conduct its analysis on this basis. While it could be argued that the father had charge of the child at the time the society intervened under Part V of the Act (when it brought this application on November 4, 2019), he assumed that status, in part, because of the exclusion of the maternal grandparents from the decision-making process for the child.
[52] After the child was hospitalized, the society and the hospital treated the father as the decision-maker for the child. He attended all medical meetings and signed all the necessary consents and directions required by the medical professionals. This is despite the fact that the operative Superior Court of Justice order only gave him supervised access to the child.
[53] The maternal grandparents were excluded from the decision-making process for the child, despite the child having lived with them from January 2018 until June 2019. Understandably, they became increasingly frustrated with the society and medical professionals.
[54] This frustration was exacerbated when the society brought this protection application and they were not provided with notice or named as parties. The protection application stayed their motion in the Superior Court of Justice, where they believed they would finally have their day in court.
[55] In hindsight, the society should have brought this application much earlier than it did.
[56] The court agrees that the father shouldn't be given a higher status than the maternal grandparents on this motion given these circumstances.
[57] The court will assess what placement order is in the child's best interests.
Part Five – The Child
[58] Sadly, the child now has exceptional special needs.
[59] The child is very fragile medically. The damage that was done to her is profound.
[60] The child is on four anti-seizure medications which she receives twice each day. She also receives medications for her body tone, secretion and stomach reflux. She takes about 20 pills each day.
[61] The child is at a high risk for aspiration as she has lost the mouth skills and coordination to swallow. She is on medication to thicken her salivary secretions to help her swallow better. She is fed by a tube, as she is unable to feed by mouth for nutrition purposes. She was recently admitted to the Hospital for Sick Children for 10 days due to a viral lung virus.
[62] The child has significant delays in gross motor and fine motor skills. She is unable to sit on her own or hold her head up. She is unable to crawl.
[63] The child has suffered vision loss.
[64] The child is not speaking.
[65] It is unknown if the child has any memory of events prior to June 12, 2019.
[66] The child is being assisted by many professionals including:
a) A neurologist at the Hospital for Sick Children in Toronto.
b) The complex care team at McMaster Children's Hospital.
c) The local health integrated network in Hamilton.
d) Community living Hamilton – special needs resourcing.
e) An occupational therapist.
f) A physiotherapist.
g) A registered massage therapist.
h) A music therapist.
i) Physiotherapy and speech-language therapy from the Ron Joyce Children's Centre.
j) Little People Day Care.
[67] The father was primarily responsible for coordinating these resources for the child.
[68] It is agreed that the child has made some gains since June 2019 with this intensive support.
[69] The medical professionals have recommended that traveling for the child should be limited at this time due to her medical fragility.
[70] The child requires caregivers who:
a) Appreciate the extent of her special needs.
b) Are proactive in obtaining services for her.
c) Work well with professionals.
d) Are open to the recommendations of professionals.
e) Can provide her with stability and structure.
f) Protect her from adult conflict.
g) Put her needs over their own.
Part Five – Analysis of the Position of the Maternal Grandparents
[71] The maternal grandparents submit that it is in the child's best interests to be placed in their temporary care and custody.
[72] The maternal grandparents submit that they have a closer relationship with the child than the father – she lived with them from January 2018 until June 2019 and the father did not see her.
[73] The maternal grandparents are both retired and would be home full-time to care for the child.
[74] The maternal grandmother deposed that she has worked with children with special needs in Play and Learn Integration programs. She said that she used to run a private home day care and her home is set up appropriately for a young child.
[75] The maternal grandparents deposed that they are prepared to accept any medical recommendations for the child and provide whatever services she needs.
[76] The maternal grandparents do not want the child to attend daycare as recommended by her medical service team. They plan to have her stay at home.
[77] The maternal grandparents made many accusations about the father to professionals (many of which were repeated in their motion materials), including:
a) He is a danger to the child.
b) He is a drug addict.
c) He or his agents caused the insulin overdoses to the mother, the maternal grandmother and the child.
d) He is responsible for the child's condition.
e) There is a risk that he will abduct the child.
f) He and the paternal grandparents plan to perform mutilation of the child's genitalia in accordance with Islamic tradition.
g) He is denying them contact with the child.
h) He has tried to extort money from them in exchange for contact with the child.
i) He does not have a bond with the child.
j) He is not properly caring for the child resulting in health problems for her.
[78] The evidence before the court did not support the allegations of the maternal grandparents.
[79] The allegation that the father was a danger to the child was expressly rejected by the motions judge. The evidence since June 12, 2019 has only reinforced that conclusion. The independent evidence from multiple professionals is that the father has been exceptionally committed, loving and appropriate with the child – he is not a danger to her.
[80] The father admitted his drug use in 2016. There is no evidence that he has had an issue with drugs since then.
[81] There is absolutely no evidence to support the allegation that the father directly or indirectly was responsible for the insulin overdoses or the child's condition. The maternal grandparents are undoubtedly grieving, but it remains an irresponsible and malicious allegation that they have made to multiple professionals.
[82] The motions judge rejected the allegation that the father was a flight risk. There is no new evidence to support this allegation. The father and the paternal grandparents have strong roots in their community.
[83] There is no evidence to support the allegation that the father and the paternal grandparents would perform genital mutilation on the child. The father explained in detail in his affidavit how this is not part of his family's cultural practice.
[84] The evidence indicates that the father has been very supportive of maintaining the child's relationship with the maternal grandparents in very difficult circumstances. He has even agreed to leave his home so that the maternal grandparents can see the child there. In contrast, the maternal grandparents have treated him very poorly. They make baseless allegations against him. They have verbally attacked him. The maternal grandfather will not speak to him. Security had to ask the maternal grandparents to leave the hospital in December 2019 due to their verbal abuse of the father and escalated behaviour.
[85] The father did not try to extort money from the maternal grandparents for access. What he did was ask them about the outstanding $10,000 costs award owing to him by the mother. He should not have raised this issue directly with the maternal grandparents as it was instantly misconstrued and only fueled the conflict.
[86] The evidence indicates that the child's closest bond is now with the father. He has been her primary caregiver since she was hospitalized. He has shown tremendous commitment to her. He left his job, stayed every day at the hospital, worked closely with professionals and has put together a comprehensive service plan for her. He has been observed by professionals to be very competent and attuned to the child's cues and needs.
[87] The evidence from the professionals is that the father is providing excellent care for the child. She is a medically fragile child and will have lifelong medical issues. The maternal grandparents' allegation that the father's care of the child is substandard is not supported.
[88] The extent and breadth of the maternal grandparents' baseless and often malicious allegations against the father are very concerning. They are similar to the allegations made by the mother that were rejected by the motions judge.
[89] The maternal grandparents do not believe that the mother committed the offences she has been charged with.
[90] The mother supports the position of the maternal grandparents. She told the court that she did not commit the offences she has been charged with.
Part Six – Analysis
[91] The evidence is overwhelming that it is in the child's best interests to be placed in the temporary care and custody of the father for the following reasons:
a) He has done an excellent job in caring for the child since June 12, 2019.
b) He has made sensible medical decisions for the child.
c) He has worked cooperatively with service providers and has followed their recommendations. He attended a three-day program at the hospital to ensure that he could care for the child on his own.
d) He has put together a comprehensive service plan and team in place for the child.
e) He has obtained financial supports to meet the child's special needs.
f) He demonstrated in his material a detailed and realistic understanding of the child's special needs – a much more thorough understanding of those needs than the maternal grandparents. He has also expressed that he still has much to learn – an insightful acknowledgement by a caregiver in his situation. The maternal grandparents did not express similar insights.
g) He has appropriate and child-focused accommodation for the child. The father has set up a video monitor in his home accessed by smart devices.
h) He has shown tremendous commitment to the child.
i) He has an excellent support system. The paternal grandmother assists him in caring for the child. She has worked as an early childhood educator. The society worker observed the father and paternal grandmother caring for the child in a seamless and effective manner.
j) At this time, the child has her closest relationship with the father. He has been observed as being very good at reading her cues and meeting her needs.
k) He has shown a commitment to facilitate the maternal grandparents' relationship with the child. The social worker from Holland Bloorview reported that he had been very respectful of the maternal grandparents' time with the child.
The maternal grandparents have no respect for the father and his role with the child. They perceive him as dangerous and manipulative. They are making baseless allegations against him. They told the social worker at the hospital that they do not believe the father should have access to the child. The hospital staff expressed its concern to the society in December 2019 about the maternal grandparents' behaviour and verbal attacks on the father and the risk of the child's exposure to this. The evidence indicates that it is unlikely that the maternal grandparents would support his relationship with the child at this time.
l) This evidence also indicates that the maternal grandparents are more likely to expose the child to adult conflict. This is not in the child's best interests.
m) The father has taken steps to address his issues. He acknowledged his unacceptable behaviour with the mother. He went to a psychiatrist, a therapist and worked with a counselor at the LAMP program. He took parenting education courses. He attended programs for caregivers at Holland Bloorview. He has backed up his professed desire to change with action.
The maternal grandparents have not addressed their grief and anger. They have been offered but have rejected counseling services from the social work team at Holland Bloorview.
n) The child is very fragile. It would be disruptive and potentially harmful for her to disrupt her continuity of care.
o) The child's services are set up in Hamilton. The child attends swimming and music therapy. A massage therapist visits the child in the home weekly. She is in a specialized daycare. The father has obtained government supports and benefits for the child. There is nothing comparable in place in Toronto. It is unknown how long it would take for the maternal grandparents to set up comparable services.
p) The father's plan for the child is very detailed and well thought-out. The father plans to return to work in March 2020 but has arranged his schedule around the child. The child will go to daycare twice each week. Once each week the paternal grandmother will care for the child. The father will be home at the other times. His sister will also provide child care assistance. The services for the child have been set out above.
The plan of the maternal grandparents contains little detail. Understandably, they have not arranged any services. However, they did not identify the names of any specific services they would obtain for the child. They provided no explanation of how they would fund the very expensive care that the child requires.
q) There were some concerns expressed by the professionals about the maternal grandparents' resistance to their recommendations. Examples given were the maternal grandmother's insistence on giving the child water when she was instructed not to by doctors (due to the child's swallowing issues) and their desire to have the child stay at home instead of attending daycare.
[92] The court finds that at this time:
a) The father is better able to meet the child's physical, mental and emotional needs and provide the appropriate care and treatment to meet those needs than the maternal grandparents.
b) The father is better able to facilitate the child's physical, mental and emotional development than the maternal grandparents.
c) The father is less likely to expose the child to adult conflict than the maternal grandparents.
d) The father is better able to promote the child's different cultural and religious backgrounds than the maternal grandparents.
e) The father is providing the child with a secure and positive home. He is more supportive of facilitating the child's relationship with the maternal grandparents than they are of her relationship with the father.
f) The father's plan provides the child with continuity of care.
g) The father's temporary plan has considerably more merit than that of the maternal grandparents.
[93] The child will be placed in the temporary care and custody of the father subject to the terms of supervision requested by the society and agreed to by the father.
Part Seven – Access
7.1 Positions of the Parties
[94] The society seeks temporary orders that the mother have no access to the child and that the maternal grandparents' access to the child be in its discretion. The father supports this position.
[95] The Office of the Children's Lawyer, on behalf of the child, wants to ensure that the maternal grandparents have an important role in the child's life, while recognizing the logistical challenges for access to the child.
[96] The maternal grandparents seek generous temporary access, including in their home.
[97] No one sought temporary access for the mother. Given that she is in jail and prohibited from having any contact with the child by the criminal court, a temporary order will be made for no access as requested by the society and the father.
7.2 Legal Considerations
[98] Subsection 94 (8) of the Act provides that where an order is made under clause (c) or (d) of subsection 94 (2), the court may order access on any terms that it considers appropriate.
[99] Subsection 104 (1) of the Act also gives the court the authority to make an order respecting a person's access to a child, and to impose such terms and conditions on the order as the court considers appropriate.
[100] In determining what order is appropriate, the court should consider 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).
[101] In assessing best interests, the court should consider the relevant factors set out in subsection 74 (3) of the Act. See: Jewish Family and Child Services v. H.B.S., [2012] O.J. No. 5055 (OCJ).
7.3 Analysis
[102] Structuring an access order in the best interests of the child is the most challenging aspect of this decision.
[103] The maternal grandparents love the child. They were intimately involved in her care for most of her life and were an important part of her life. They are experienced parents who have a lot to offer the child. With her mother being in jail for an indefinite time, the maternal grandparents are the child's only connection with the maternal family and her Bosnian heritage.
[104] The maternal grandparents have also demonstrated a commitment to the child by attending regularly at the hospital and seeking as much contact with the child as will be permitted.
[105] The maternal grandparents have been living through a nightmare. The child, who they deeply love, has been gravely damaged and the mother has been charged with serious criminal offences related to this. From their perspective, the father, who was abusive to the mother, has been prioritized by the professionals and has been rewarded with the care of the child, putting the child at risk of harm.
[106] Ideally, the court would want to set up an extensive access schedule for the maternal grandparents.
[107] However, the harsh realities of this unique case dictate that an extensive and specified access schedule is not in the child's best interests at this time for the following reasons:
a) The child is too medically fragile to frequently travel at this time. This makes the logistics of access much more difficult.
b) The child has specific medical needs, including g-tube feeding. The father's home has the necessary equipment and services to meet the child's special needs. The maternal grandparents' home is not set up for this at this time.
c) The maternal grandparents have been acting inappropriately, likely due in large part to their grief and anger. They have been attacking the father, engaging in adult conflict and have not followed medical direction at times. At this time, their access with the child needs to be monitored to ensure that the directions of the child's medical service providers are followed, and that the child is not exposed to conflict.
d) The logistics of arranging this access are very challenging. The society has been arranging for workers to go to Hamilton to supervise the maternal grandparents' access. It is difficult for the society to free up workers to do this – it is not common that it has to supervise visits in another city. The court was advised that the society is in the process of contracting with an independent agency to do this. The court also has to take into account that the father is being asked to leave his home to facilitate this access.
[108] While this court is ordinarily reluctant to make access orders in the discretion of the society, in this case it finds that such an order is in the child's best interests. The child's medical needs have been evolving and the society needs the flexibility to schedule and change access. Given the acrimony between the maternal grandparents and the father, the society needs to be the go-between to manage the access. It also needs the flexibility to reduce access if the maternal grandparents act inappropriately or to increase it if the maternal grandparents can exercise access in a positive manner, without having to come back to court every time.
[109] The court will order some conditions to guide the society's exercise of its discretion. These conditions are as follows:
a) The access shall take place a minimum of twice each week for three hours each visit, unless the child's medical situation, in the society's opinion, does not make this possible. This is an increase in the maternal grandparents' time with the child.
b) The society may suspend any access visit, if in its opinion, the maternal grandparents act inappropriately or fail to follow medical direction regarding care of the child.
c) The father should not be present during the time the maternal grandparents exercise access.
[110] The court will also order that the society shall keep the maternal grandparents updated about the child's medical status. It is hoped that the society will invite the maternal grandparents to attend at any of its plan of care meetings regarding the child.
Part Eight – Conclusion
[111] A temporary order shall go on the following terms:
a) The child shall be placed in the temporary care and custody of the father, subject to the supervision of the society, on the following terms and conditions:
The father shall ensure that all of the child's physical and emotional needs are met.
The father shall allow society workers to attend the home on an announced and unannounced basis and shall permit the workers to meet with the child in private at home, daycare or elsewhere in the community.
The father shall ensure that all alternate caregivers for the child are approved in advance by the society.
The father shall sign consents authorizing the exchange of information between the society and all applicable service/medical care providers with whom he and the child are involved.
The father shall keep the society informed with respect to the child's medical status and any relevant developments in this regard.
The father shall ensure that the child is not exposed to the adult subject matter of these proceedings, including conflict between the maternal and paternal families.
b) The mother shall have no direct or indirect access to the child.
c) The maternal grandparents' access to the child shall be in the discretion of the society, including the times, place and the need for supervision.
d) The access shall take place a minimum of twice each week for three hours each visit, unless the child's medical situation, in the society's opinion, does not make this possible.
e) The society may suspend any access visit, if in the society's opinion, the maternal grandparents act inappropriately or fail to follow medical direction regarding the care of the child.
f) The father shall not be present during the time the maternal grandparents exercise access.
g) The maternal grandparents shall ensure that the child is not exposed to the adult subject matter of these proceedings including conflict between the maternal and paternal families.
h) The society shall keep the maternal grandparents updated about the child's medical status.
[112] The maternal grandparents are added as parties and may file Answers/Plans of Care on the issue of disposition only. They are to be served and filed by March 6, 2020.
[113] The return date is March 16, 2020 at 2 p.m. for a one-hour case conference.
[114] At the December 19, 2019 court appearance, the court sent a strong message to the parties. The child has been the victim of this high-conflict case and this court is not going to tolerate having the child exposed to continued conflict. She has suffered enough because of her caregivers. If any party or parties are unable to protect the child from conflict, this court will not hesitate to stop their contact with the child. Despite its understanding of the grief the family is suffering, the court's priority will be the child, not the adults.
[115] The court strongly suggests that the maternal grandparents take the advice of the medical professionals and seek counseling to deal with their grief and anger. They will need to eventually address these issues if they want to have the type of relationship they desire with the child.
[116] The court thanks counsel for their professional and sensitive presentation of this motion.
Released: February 6, 2020
Justice S.B. Sherr