WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.—(7) Order excluding media representatives or prohibiting publication.— Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

(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.

(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.

ONTARIO COURT OF JUSTICE

CITATION: Children’s Aid Society of Algoma v. F.M., 2021 ONCJ 393

DATE: May 27, 2021

COURT FILE No.: Sault Ste.Marie File No. 231/14 - 001

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA,

Applicant,

— AND —

F.M.

M.K.

C.K. (Added Party)

Respondents.

Before Justice John Kukurin

Heard on Feb 16, and March 1,2,3,4,23,24,25,26, 2021

Reasons released on May 27, 2021

Jennifer Mealey....................................................................... counsel for the applicant society

Shad McCooeye.......................................................... counsel for the respondent mother F.M.

Jasmine Gassi Harnden.................. counsel for the respondent paternal grandmother, C.K.

M.K. not present, though duly served

Lindsay Marshall Office of the Children’s Lawyer legal representative for the child

KUKURIN J.:

[1] These are Reasons for my decision, after a nine day trial, on a status review application of the applicant society. The Respondents are the mother, the father, and the paternal grandmother, an added party (hereafter referred to as “PGM”). The father was duly served but failed to file an Answer. His participation was limited to endorsing the PGM’s claim for deemed custody of the child. The father made no claims for paternal access. The ultimate issue was the custody of the child X, now age 6 years. Both the mother and the PGM want to have custody of X. Legal representation had been ordered and counsel from the Office of the Children’s Lawyer represented X in this proceeding.

Litigation History

[2] The child X was apprehended at birth in […] 2014. The Applicant society started a child protection application relying for a finding that X was a child in need of protection, on grounds of risk of physical harm [s.37(2)(b)(i)], and parental refusal or inability to provide medical treatment [s.37(2)(e)].[^1] This prior proceeding was contested, and was not completed until February 2018, over three years later. The outcome was a consent finding on the above noted grounds, and a consent order that X be placed in the care and custody of his paternal grandmother PGM, subject to supervision by the society for nine months. In actual fact, X had, by then, been residing with PGM for about three years under a temporary care and custody order. To this nine month supervision order was attached a number of terms and conditions, one of which was that the PGM not allow her son, the child’s father, any access except as arranged or agreed by the society, and that she not allow him to live in her home.

[3] The parties also consented to an order for maternal access that was tailored to the unusual circumstances then prevailing. The mother was residing in Calgary, Alberta. The PGM was residing in Toronto (Markham), Ontario and the society’s territorial jurisdiction was the District of Algoma, in Northern Ontario. Maternal access was specified to be reasonable and to include telephone access. It also included access by Skype for at least one hour per week. In addition, if the mother wished ‘in person’ access, she could exercise it in Toronto for visits of up to six days, such access to occur not less than once in each three month period (ie quarterly access). During these quarterly visits, the mother was entitled to see her son X at least every other day, and for at least three hours, subject to the availability of the supervised access facility. A reasonable reading of these access details confirms that they were implicitly understood to be minimums and were subject to society discretion as to any enhancement or enlargements from such minimums. The maternal access order was also subject to a number of other conditions and restrictions, almost all of which applied to the mother during her exercise of access.

[4] There was no order made for paternal access. In fact, there was no mention of the father in the order except in the supervision order conditions, namely, that the PGM not permit the father to reside in her home, and that she not allow him any access except as permitted by the society.

Statutory Review of the Child’s Status

[5] The foregoing were the terms of the final order made by Condon J. dated February 28, 2018 which is now the subject of a status review application before this court first returnable November 14, 2018.

[6] Regrettably, there were no written Reasons[^2] other than that the order was based on the written consents of the PGM, of the mother, and of the society.

[7] What was included in the finding that X was a child in need of protection was the foundation for that finding. That basis was the facts set out in the child protection application, and the facts set out in five identified affidavits sworn by three individual affiants, all of whom were society personnel.[^3]

[8] That is the sum total of why the final order was made. The factual circumstances for the finding in need of protection are buried in five affidavits, and are buttressed by the consent of the parties that the finding was justified on those factual circumstances. The only way for this status review court to learn what those factual circumstances actually were is to read those five affidavits[^4]. The order does not identify the specific factual findings for the disposition made (placement with the PGM). Nor does it provide the factual circumstances underlying the maternal access order, or why no paternal access order was made. The final order in the child protection case was made on Feb 28, 2018 and was made under the Child and Family Services Act (the CFSA)

[9] The Child and Family Services Act (the CFSA) was essentially replaced by the Child, Youth and Family Services Act (the CYFSA) effective April 30, 2018. The status review application before this court is mandated by s.113 of the CYFSA, specifically under s.113(2)(b):

S.113 (2) The society having care, custody or supervision of a child,

(b) shall apply to the court for a review of the child’s status before the order expires, unless the expiry is by reason of section 123

[10] What is meant by the child’s “status” is not specifically set out in the statute. What is being reviewed in this status review application is the child’s status as a child previously judicially determined to be a child in need of protection, and the status of that child as a child, placed by court order where he was placed, including the conditions of that placement. These conditions encompass not only any supervision order, or any terms and conditions of such order, but also the access that the child has with any person named in that prior order. Access orders are made under s.104 CYFSA. I understand the child’s “status” to include either access to the child, or access by the child.[^5]

[11] The fundamental task of a status review court is to “review”. Review has various meanings. At its heart, a review is a ‘going over’, a ‘second look at’, a ‘studying’, or an ‘examining once again’ of something that took place in the past. In the context of the Child, Youth and Family Services Act, that ‘examining again’ is a critical aspect of the child protection regime and the judicial oversight inherent in this statute. By setting timelines and mandatory reviews, the CYFSA seeks to ensure that children do not fall through the cracks, and that their status is judicially reviewed periodically to determine if any changes are needed, or are appropriate. What the statute does not do a good job at is setting out what criteria apply at a status review, and on what basis it can make changes to the existing order it is reviewing.

Jurisprudence Relating to Status Review

[12] Where a child is in interim society care, or is subject to a society supervision order, as in this case, s.114 CYFSA lists the options available to the court on a status review application with respect to that child.

S.114 Where an application for review of a child’s status is made under section 113, the court may, in the child’s best interests,

(a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(d) make an order under section 102.

[13] The CYFSA statute, however, does not provide any criteria for choosing among such options except to impose the “best interests” of the child as the mandatory test. The best interests test applies to all of these choices. While it is helpful, it does not provide much help in differentiating between choices.

[14] What a status review court must do on a status review has been the subject of many prior court decisions. It is only reasonable that this court examine what treatment other courts have implemented, especially appellate courts. But before examining this case law, it is advisable to keep in mind the context in which other courts have determined what a status review court must do. One size does not fit all, and status review cases deal with many different issues, and often very different circumstances.

[15] For example, in the present case, the main issue in the status review is presented as the custody of the child. Custody of X is in the context of a s.102 CYFSA order “deemed” to be an order made under the Children’s Law Reform Act (the CLRA). Not only are the mother and the PGM vying for a deemed custody order, so too is the society despite what remains its formal claim in its status review application, namely, placement with the PGM with a six month supervision order. It unofficially endorses the PGM’s claim, and is quite candid that it does not want the court to make a protection order under s.101 CYFSA. In considering s.114 options set out in paragraph [12] above, two of the litigants and OCL counsel for the child in the present case are advocating option (d) as the only proper resolution. The mother seeks care and custody to herself subject to a society supervision order under option (c) above. In cases mentioned below on the task of the status review court, it is important to look at what the competing options were in the cases cited, as this may affect the applicability of the rationale in those cases to the case before this court.

[16] The jurisprudence on the proper test on a status review is well developed. The earliest definitive case, invariably cited with approval, is the C.M. decision of the Supreme Court of Canada in 1994.[^6] Madame Justice L'Heureux-Dube dealt specifically with the question of what is the test that the court must apply in a status review hearing. She stated (at paragraph 35)

"It is clear that it is not the function of the status review hearing to retry the original need for protection order. That order is set in time and it must be assumed that it has been properly made at that time. In fact, it has been executed and the child has been taken into protection by the respondent society. The question to be evaluated by courts on status review is whether there is a need for a continued order for protection. " (My emphasis)

[17] She continues (at paragraph 37) to clarify how a determination of a continued need for a protection order ties into the consideration of the best interests of the child:

"The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time."

Of some significance is the last sentence of paragraph [37] of the C.M. decision which states clearly that the need for continued protection may arise from the existence or absence of the circumstances that triggered the first protection order, "or from circumstances which have arisen since that time".

[18] In fact, the Supreme Court in C.M. went even further and stated that, regardless of the conclusion in the first stage of the status review examination, and even in absence of proof of present parental deficiencies of the natural parent, the court must look to other relevant factors to determine whether a court order is necessary to protect the child from other harms. The Supreme Court cited with approval [at paragraph 37] a passage from the Ontario Court of Appeal:

“Regardless of the conclusion reached at this first stage, the need for continued protection encompasses more than the examination of the events that triggered the intervention of the state in the first place. As the Court of Appeal further noted:

We do not agree, however, that this means, in the absence of proof of some deficiency in the present parenting capacity on the part of the natural parent, that the child must be returned to the care of the natural parent. A court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the care givers, whom the child regards as her psychological parents, is severed. Such a factor is a well recognized consideration in determining the best interests of the child which, in our opinion, are not limited by the statute on a status review hearing.[^7] [Ont. CA at paragraph 2]

This flexible approach is in line with the objectives of the Act, as it seeks to balance the best interests of children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail”

[19] The C.M. case remains not only good law, but the leading and binding case from the highest Canadian authority on the issue of the test on status review applications. In summary of what it asserts, regardless of the grounds the initial finding was made that the child was in need of protection under s.37(2) CFSA, whether those grounds continue at a status review hearing is not determinative of what the status review court may or must do. If the society is unable to prove that the child was in continuing need of protection on the initial grounds, it is open to the society to show continued need for protection on some other ground specified in s.37(2) CFSA [now s.74(2) CYFSA], or to show a continued need for protection on some factual basis not even set out in s.37(2) CFSA [now s.74(2) CYFSA]. It is clear from C.M. that the best interests of the child is the determining factor in the court’s decision on disposition on a status review.

[20] This test was applied by the Ontario Court of Appeal in the W.T.C. case[^8] in 2013 where the main issue was what the test articulated in the C.M. case actually meant. The Court of Appeal stated rather explicitly, that, in a status review, although a determination that a child continued to be in need of protection was a requirement for a further protection order, that determination did not need to be based on the a “need of protection” as that term was defined in section 37(2) CFSA [now s.74(2) CYFSA]. It clarified what the Supreme Court of Canada said in C.M:

‘ … the Supreme Court of Canada made it clear that, in addition to the factors enumerated in s. 37(2) of the CFSA, a finding of a continuing need for protection could also be premised on the need to protect a child from emotional harm arising from removing the child from caregivers to whom the child had become attached and whom the child regarded as psychological parents”. [My emphasis]

[21] At a more fundamental level, a status review court is reminded by Justice Chappel in the 2017 J.M. case[^9] of the directive guidance of the Supreme Court in the C.M. case, namely, that the overall purpose and rationale of the global legislative scheme in the context of a status review is a balancing of interests. She states [at paragraph 39]

“The Supreme Court of Canada set out the fundamental principles that apply on a Status Review application under the CFSA in M.C. It stated that in dealing with child protection cases pursuant to the CFSA, the court must always keep in mind the overall purpose and rationale of the global legislative scheme. It held that the underlying philosophy of the Act is that the best interests of children must be balanced with the importance of keeping the family unit intact if reasonably possible. The court concluded that this philosophy is the foundational starting point for determining the applicable test on a Status Review application. It emphasized the importance of avoiding unduly restrictive interpretations of the individual sections of the Act which may work at cross purposes with this overall philosophy.” [my emphasis]

[22] Justice Chappel also encourages status review courts to be mindful of the paramount purposes in s.1(1) of the Act, namely to promote the best interests, protection and well being of children, but also to be attentive to the additional purposes in s.1(2). She adds [at paragraph 37] with respect to supporting the autonomy and integrity of the family unit:

“These other purposes set out in section 1(2) indicate that in carrying out its duties under the CFSA, the court is required to analyze the best interests of the child with an eye to the importance of supporting the family, maintaining the family intact if possible, and accessing community supports if appropriate to promote the best interests of the child and the integrity of the family unit. …. The non-interventionist principles set out in section 1(2) are not aimed at strengthening the rights of parents, but rather are founded on the importance of keeping the family intact if this is consistent with advancing the child's best interests.

[23] In the very recent A.C. case[^10], Justice Sherr not only repeats but reinforces the status review court’s responsibility to apply these fundamental purposes in its deliberations [at paragraph 119]

“In any analysis, first and foremost, there must be a consideration of the paramount purpose of the Act, as set out in subsection 1 (1), which is to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purpose, other purposes of the Act as set out in subsection 1 (2) are also designed to support the autonomy and integrity of the family unit and to utilize the least disruptive course of action available.”

[24] A case that is not a status review proceeding but one that mirrors the issues in the present case is an appellate decision of Justice Shore in S.A.P.[^11] in the Superior Court of Justice. The appeal dealt with a number of errors alleged by the Appellant mother to have been made by the trial judge in her decision on disposition. The choices were between a deemed custody order to the father, and a supervision order with the mother. The children had been and were well established in the care of the father for over three years by time of trial. There had been a consent finding that the children were in need of protection. The findings were based on risk of physical harm but the protection concerns at the disposition hearing dealt with future emotional harm arising from removal from a stable and secure custodian and caregiver. The mother, from whom the children had been removed, had successfully completed a number of counselling programs (mainly for substance abuse) and had made significant progress since the children had been removed from her care. Many of the same factual elements in the present case were considerations before the court in the S.A.P. case, the major difference being that the deemed custody candidate was the biofather of one child (and stepfather of the other) whereas in the present case, it is the paternal grandmother that is the candidate for deemed custody Ultimately, the trial judge made a deemed custody in favour of the father. The appeal court upheld this decision. What is noteworthy is that the mother’s grounds of appeal in that case are similar to several of the mother’s arguments in the present case.

[25] Finally, a decision of Justice P. Jones in T.H.[^12] involved a choice between crown wardship (now called Extended Society Care) and return to parents with a supervision order. Justice Jones considered that the family, but for the mother’s admitted “relapse within the last year” but also her “compliance with a well-crafted relapse prevention program and abstinence since that time”, had come “a long way down the road to recovery”. She determined that the family “should be afforded another chance given how far they have come down the road of recovery” and stated “that the most appropriate order to make, which is the least intrusive and disruptive, consistent with the best interests of the child, is to place Ay.J.H.-R. in the care of his father subject to a 12-month supervision order”. She further added that “it is in Ay.J.H.-R.'s best interest to be raised by his parents because his parents have established a stable lifestyle and have come such a long way down the road to recovery. Further, I expect, with the help of the society, that their recovery will continue. For clarity, provided the parents continue to manage their drug addictions, I find the parents have the ability to meet Ay.J.H.-R.'s needs and to raise him to maturity in a stable, nurturing and loving home.”

[26] To recapitulate, in considering the evidence admitted at trial and the arguments of counsel, the jurisprudential impact on what a summary judgment court must keep in mind is:

(a) that the paramount purpose, and the secondary purposes of the CYFSA (where not inconsistent with the paramount purpose) found in s.1 of that statute, must always be kept uppermost as guiding principles;

(b) that function of the status review is a balancing of the best interests of the child with the importance of keeping the family unit intact if reasonably possible, and of creating the least disruption necessary;

(c) that child protection concerns at a status review are not limited to concerns that fall within the parameters of s.74(2) of the CYFSA, even different concerns than those on which the finding in need of protection was initially based, but can arise from other factual circumstances which may impact on future protection concerns.

(d) that ultimately, the best interest of the child must in all cases, be the determining factor

The Claims made in the Status Review Application

[27] This may seem a trite review, but is a necessary one in this case. This is because the claims made are not so simple as A vs B.

[28] The society’s claim in its status review application was for placement of the child X with the PGM subject to a society supervision order for six months with fourteen conditions. The society never officially amended its claim. At trial, however, the society did not advocate this claim. It took a more neutral position on placement whether with the PGM or the mother. What was clear from its submissions was that this society did not want the court to make another protection order under s.101 (1) of the CYFSA. It did not want to have to continue to supervise whatever placement the court might order. It did not feel that a protection order was needed, and expected that a Voluntary Service Agreement would be sufficient, preferably one entered into by the mother with the Calgary society (Child Protection Service) if the child was placed with the mother. The society amended its initial Plan of Care and, one month prior to start of the trial, filed a new Plan of Care in which it unequivocally confirmed what it was seeking, contingent on what the court decided on placement. It sought a s.102 deemed custody order in favour of either the mother or the PGM. While this was its position, the society, in its submissions at trial, seemed to prefer deemed custody to the PGM. Moreover, its alternative Plan of Care placement option of a deemed custody order to the mother was changed to placement with the mother and the maternal grandmother (the “MGM”) jointly, with primary residence of the child to be with the maternal grandmother. What was evident from the society’s submissions is that it wanted out. It did not want any more responsibilities on its shoulders for the child X.

[29] The mother’s claims in her Answer and Plan of Care were manifold, and were presented as alternatives:

(a) deemed custody to the mother; or

(b) deemed custody to the mother and the MGM jointly; or

(d) care and custody to the mother and MGM with a society supervision order and reasonable conditions: or

(e) care and custody to the MGM subject to society supervision and reasonable conditions: and/or

(f) access by the child X to the mother specified as to frequency, duration, location and level of supervision.

The mother’s submissions at trial included yet another alternative, namely, that if no continuing need for protection was found by the status review court, then the child should be returned to her as a person who had charge prior to the society’s intervention. Failing this, and likely in light of the society’s submissions that no protection order was either needed or sought, the mother advocated for a deemed custody order in her favour, or alternatively, a deemed custody order in favour of herself and the MGM jointly.

[30] The PGM, in her Answer and Plan of Care, made three claims, phrased as alternatives:

(a) deemed custody to herself; or

(b) care and custody subject to society supervision and conditions to be agreed upon; or

The PGM’s submissions, at trial, did not advocate one alternative over another. However, my inference was that the PGM was first and foremost seeking a deemed custody order in her favour, but could live with a further society supervision order. She clearly argued against a placement with the mother, or with the MGM, or both.

[31] The child X was just age six years at time of trial. His OCL counsel, as his legal representative, backed the PGM in her claim for deemed custody of X. She argued against placement with his mother and/or with the MGM, but conceded that the mother should have generous access subject to the wishes of the child.

[32] In short, the claims made initially (in November 2018) were not always continued to the start of trial (February 2021), and even changed considerably during the trial as trial evidence was heard. Moreover, there were still some contingencies in play depending on the status review court’s factual findings at trial. In general, the main choices after trial were placement with the PGM with a deemed custody order, or placement with the mother and MGM jointly, with or without either a society supervision order, or simply a Voluntary Service Agreement in place.

The Factual Circumstances on February 28, 2018

[33] As stated above, there were no judicial Reasons, either written or oral, for the finding in need of protection, or for the disposition, or for the access order made by Justice Condon on February 28, 2018. The closest that this status review court can come to what findings of fact were then relied upon was the reference that the “finding” was based on the facts set out in the five aforementioned affidavits, Those affidavits were not trial affidavits, as no formal trial was actually held, but were included in the Continuing Record in the child protection proceeding. Accordingly, they are still available for this status review court to access. Unfortunately, however, cumulatively, there may be many facts in those five affidavits, and there is no way for this court to definitively determine on which facts the court relied for its finding that X was a child in need of protection. At best, this status review court can look to the grounds on which such findings were made. It can look at the facts set out in the five affidavits, and make inferences on which factual allegations support those grounds. With respect to disposition and access that was ordered, the same practice would be followed, with the underlying premise that such orders would necessarily have been based on relevant best interests circumstances as they were on the date of the order. While these “best interests” circumstances are listed statutorily in s.74(3) CYFSA [then in s.37(3) CFSA], I concede that this manner of inferring what formed the basis for judicial decisions made over three years ago is somewhat speculative and far from exact, but it is the best that this status review court can do. In fact, the court has to do so, as it must review what has changed between then and now, and it can only do so if it can articulate what was the situation then.

[34] The factual circumstances prevailing when the final order was made on Feb 18, 2018 cannot be considered in a vacuum. Those circumstances were the result of a number of other factual circumstances that led to that day. The developments that preceded the actual finding in need of protection are important to understanding why the society intervened and apprehended the child X. What seems incontrovertible is that the mother and the father were the persons having charge of the child when he was born. He was immediately apprehended and has never been in the care of either parent to date. It was the mother and the father who are the focus of the court in terms considering of adequacy of parenting.

[35] The Father - The father, M. was never a serious candidate for parenting X. Prior to the start of the father’s relationship with the mother, the father already had a number of strikes against him. As a teen, he had been charged with sexual interference and sexual assault on two females. He was arrested following allegations that he was chasing his older sister around the house with a pellet gun and threatening to hit her. He had been reported to have hit his father. He was also known to the police to be involved with drugs and alcohol and, on three occasion, was found intoxicated, and, on one of them, he fled, only to be chased through the bush by a police canine unit. He was a high school dropout. When he was twenty, his father called the police wanting him out of his home because of his violence.

[36] He is described as having anger issues by his own mother. His father describes him as manipulative and controlling. The mother described him in various terms including being physically violent to her, punching her, on one occasion, in the face four times, pulling her hair on another occasion, and knocking out two of her teeth on yet another. She recounted that they argued constantly, which I accept without question, as they were often observed arguing and fighting by the paternal grandfather, by a society worker, by police at times, by the paternal grandmother who intervened between them on one occasion, and by physical evidence and events (such as broken teeth, bruises on the mother, being evicted by the paternal grandfather) and assault charges for which the father was convicted in a Calgary criminal court. The father’s younger sister, A., testified at trial that she had not seen the father in years, and that she has no relationship with him. At the birth of the child X, the father refused permission for provision of medical treatment advocated by the hospital pediatrician, on religious grounds, even though the paternal grandfather stated that no such prohibitions existed in the Muslim religion of the father. The mother agreed with the father at that time.

[37] Following the final return of the mother to Calgary, the father apparently did not stop using drugs. A police investigation in 2019 discovered him with yet another fourteen year old female in somewhat compromising circumstances, apparently using alcohol together. He has been accused by the mother of using cocaine, oxy’s, morphine, metamphetamines, and weed (marijuana) which they had purchased together. He has had no treatment for his abuse of drugs to date. Nor has he addressed his anger issues and his propensity to violence. He was convicted in Calgary for his abuse of the mother as a minor. He was reported by his father to be suffering from depression, and the effects of poor lifestyle choices, although he was also described to be overcoming these woes in the last half year. He has no job. He has not returned to school. He has no viable plan that has been presented. He declined to file an Answer and has not participated in this status review proceeding. He appears to be dependent on his father. He had no authorized access to X for some time, and now may have only supervised access. His circumstances are, frankly, dismal.

[38] The grounds for apprehension of X were two fold. One ground was refusal by both parents to provide consent to medical treatment. The other was risk of physical harm. That risk, according to the society, was based on the history of ongoing violence between the parents, their drug use, their insecure and unstable domestic and economic circumstances, their lack of family or friendship support, and inferentially, the mother’s age (she was age 15 at the time of X’s birth). It was, in this status review court’s estimation in hindsight, totally inappropriate to return the child to either parent. The mother, after three years of opposing the society, finally consented to findings that the child was in need of protection on both grounds relied upon by the society. The father did not consent. The reason: because both he and the mother stated that he was not the biofather of the child. The society took them at their word and brought a successful motion to remove the father as a parent, and as a party, and even went so far as to obtain a judicial declaration that “no person qualifies as a male parent” of the child. Accordingly, the father no longer had a right to participate as a party in the child protection proceeding.[^13] That he brought this upon himself by refusing to submit to paternity testing offered by the society can be rationalized as poetic justice. However, his refusal to consent to medical treatment of his newborn son on specious religious grounds is good reason for a finding that the child needed protection.

[39] The father is once again a party. Paternity tests were done at later date by the paternal grandfather, and the results show that the father is the biological father of the child. Accordingly, he was added back as a parent and as a party in this status review proceeding. What progress has been made by the father to date? None of any significance so far as the evidence shows. He has not responded to the many pessimistic allegations made against him or to the pejorative information about him recounted in the evidence. The only positives of which the court is aware are that he wants to have access to his son X, and that he may have toned down his drug and alcohol use in the last six months or so. However, this latter information comes from his mother and his father, and I accept it with considerable misgivings. In short, the father has not shown he is serious about parenting and seems to have drifted through the past five or six years with no commitment to improving his circumstances. He is not a candidate for care or custody of X. At most, he will be an access parent only, and this role will be considered later in this decision.

[40] The Mother – The mother, F., is a more major player in this child protection case. She is deserving of more attention by the court, and consequently, more scrutiny. Counsel for the mother argued in his submissions, that if the court found that the child X was no longer in need of protection if returned to the care of the mother, then the court was mandated to return him to her. However, as is clear from the jurisprudence, this is not necessarily so. The court must apply the two part test that was spelled out in the C.M. case. Firstly, the court has to be satisfied that the child no longer needs a protection order. Even if this determination is made, the court must look at the best interests of the child in deciding what order to make. Inherent in considering whether a continuing need of protection exists, the court has to examine the circumstances prevailing at the time that the previous order was made as that order determines what this status review court is required to review. Just as was the case for the father, it is not only the facts that existed on February 18, 2018 that this court must look at, but also what led to those factual circumstances. In addition, this court must examine the evidence to see what changes have occurred since then to the present time.

[41] That the mother had problems even before she met the father is well established in the evidence of the society. Much of this is contained in the police occurrence reports of the Calgary Police Service and in the history in the medical and hospital reports served by the society pursuant to s. 35 and s. 52 of the Ontario Evidence Act, and under s.93 of the Child, Youth and Family Services Act. In addition, the society has served these with Requests to Admit seeking the mother’s Response to Request to Admit which the mother did, in fact serve, but in which she disputed the genuineness of relatively few of the documents tendered.

[42] The mother reported a more or less “typical” upbringing in her family of origin. While this may have been so, it was not the case by the time she reached her teen years. By age 12, she was smoking cigarettes, was frequently drinking alcohol, and started using cannabis rather heavily. She had at least one admitted suicide attempt at age 12 and was engaging in “cutting” behaviour. She has a long, documented history of depression, with associated sleep disorders (insomnia), and problems with chronic anxiety.

[43] Her familial relationships in her pre-teen and early teen years were not reflective of a happy upbringing. She and her mother were not getting along, as the mother recounts, because of her refusal to follow house rules. In fact, this was an understatement. The mother went to live with her maternal grandparents, although the reasons for this move, from the mother and from the maternal grandmother, were somewhat inconsistent. In any event, she did not stay long there as the mother’s grandmother told her she was no longer welcome in her home. She went to live in Dalhousie Group Home, from which she was consistently AWOL. By then, the mother was a regular user of metamphetamines and cannabis. By then also, she had met the 21 year old father and was spending many of her evenings and sometimes several days with him. The maternal grandmother regularly reported the mother as a missing person to Calgary Police which considered the mother to be a “chronic runaway. Eventually, at the instigation of the maternal grandmother, a Form 1 Mental Health Act warrant was issued by a Calgary judge, the mother was picked up and brought to a mental health facility for a psychiatric assessment. She had been sexually assaulted by an adult male person, and the father had apparently beaten up this male. On her release, the mother left her Alberta group home and travelled with the father to Ontario by bus, a decision that, with the benefit of hindsight, was among the poorest exercise of judgment that she could have made. By then, also, the mother had been engaging in consensual sexual intercourse with the father which resulted in her pregnancy with X.

[44] The Ontario saga is well documented in the society’s evidence and need not be repeated here. The mother remained estranged from the maternal grandmother during this time. The Ontario police, acting on the missing persons report filed by the maternal grandmother in Calgary, located the mother and father in Searchmont. The Algoma society became involved. The mother was flown back to Calgary, reluctantly, in February 2014. She was then a minor, age 15 years. In July 2014, the maternal grandmother signed a six month Custody Agreement surrendering the custody of the mother to the “Director” under Alberta’s Child Youth and Family Enhancement Act. The mother returned to the Dalhousie Group Home where her behaviour was escalating. In August 2014, the maternal grandmother obtained another warrant based on the mother being diagnosed with bipolar disorder, that she had an explosive temper, displayed paranoid behaviour, and lived a high risk lifestyle. She was taken to Foothills Hospital where she saw a psychiatrist, Dr. Tan, and was subsequently released.

[45] The father returned to Alberta and the mother eventually returned to the father. She was pregnant and wanted to have her child in Ontario. She and the father travelled to Ontario in December 2014 and she gave birth a day or so after arriving and four days shy of her 16th birthday. The mother’s experiences in Ontario were mostly unhappy ones. She was ill treated by the father and began to deteriorate physically and mentally. She stayed for over two years, much of it fighting with the Children’s Aid Society, and with the father, but she had had enough. She returned to Calgary in June 2016, weighing less than eighty pounds, a mental mess, and the victim of many abuses at the hands of the father. The mother entered the “Reflections Program” operated by Hull Services, a Calgary based Mental Health Services for youths who had been apprehended under the Alberta Protection of Sexually Exploited Children Act (PSECA). Her mental health diagnoses were from several professionals whom she saw and included a severe case of PTSD (Post Traumatic Stress Disorder), overlaid with her chronic depression and substance abuse (methamphetamines and fentanyl). She was also showing signs of borderline personality disorder and at least one Calgary psychiatrist (Dr. J. Raiche) made a formal diagnosis not only of borderline personality disorder but also of adjustment disorder as late as August 2018.

[46] In summary, the mother’s historical account of her childhood and early teen years is very terse, and its brevity is misleading. That the father was a major contributor to the mother’s very adverse circumstances is beyond question. However, despite her age and their age differential, she was also a major, if not an equal contributor to these circumstances. The point of this history is that the mother had mental health and related problems that pre-existed her relationship with the father. The relationship may well have aggravated those problems. These were not only significant and substantial, but were very undesirable from a parenting perspective. That they were exacerbated by her calamitous two and a half years in Ontario is understandable. However, the mother is now an adult, and this court is much more concerned for her child. The mother’s misadventures and victimizations are of historical significance only in gauging the mother’s responses to them, and to what she has accomplished to overcome the effects of them on her. In short, how has she rebounded from these adverse impacts from a parenting perspective?

Changes Effected by the Mother

[47] There is no question but that the mother has effected many and considerable improvements since she returned to stay in Calgary in June 2016. I start with the favourable changes.

[48] Relationship with the father – This is ended by all accounts. He was convicted in Alberta and essentially banned from returning. The mother now sees him for the bad influence he was, and instead of defending him and siding with him, she vilifies him, perhaps with justification. She recognizes that the relationship was toxic. Apart from being the father of their child, he is no longer an influence in her life.

[49] Physical health – The mother rebounded from being a physical wreck of under 80 pounds body weight to more robust physical proportions. She has reportedly maintained a healthy diet, even making meals for her siblings and her mother. She has undertaken a regime of home physical exercising, and is a much healthier person, by far, than what she was when she last returned from Ontario. She reportedly stopped smoking cigarettes on her own.

[50] Mental health – The mother has enrolled in DBT (Dialectical Behaviour Therapy) with Beverly Reed, a therapist with “Living Well” counselling services in Calgary starting in November 2019. She has been faithful in her attendances and her therapist reports much improvement in her participation and openness in her sessions. The mother speaks highly of DBT and attributes much of her personal mental health improvements to her DBT counselling. The mother has also received certificates of completion of on line webinars offered by the Crisis & Trauma Resource Institute (CTRI) in such topics as Mental Health Awareness and Support, Walking Through Grief, Conflict Resolution Skills, Strategies for Challenging Discussions and Anxiety: Practical Intervention Strategies.

[51] The Mother’s Drug Use Issues – These are, according to the mother, only in the past. While the mother admittedly used a number of illegal drugs and substances as a minor, and when together with the father, she reports that she no longer does. She no longer even smokes cigarettes. How this came about, and when precisely it came about, is not explained but seems to have been a ‘cold turkey’ decision on the part of the mother. The mother also completed an initial screening at Adult Addiction Services of Calgary in March 2020.

[52] Relationship with the Maternal Grandmother – While this was poor to dismal, it has improved immensely. The maternal grandmother never gave up on the mother, and now sings her praises. She and the mother, as well as other family members, participated in a family therapy program offered by Calgary’s Catholic Family Service from September 2016 to May 2017 with the focus being on family coping and wellbeing of the family unit. The maternal grandmother is clearly very protective of the mother, listening in on the mother’s discussions with the child protection worker, and also in Skype calls between the mother and the child X. The mother and maternal grandmother took a course together “Managing Challenging Behaviours” presumably to be better prepared for caring for X when he came to live with them.

[53] The Mother’s Role in the Family Home – While this ranged from intolerable behaviour to total absence on the part of the mother in her pre-teen and early teen years, it has undergone a miraculous turnaround. The mother now often makes family meals, plays with and cares for her young brother C. (age 3), helps her siblings with their homeschooling and their household chores, and babysits her sister B.’s two daughters (ages 6 and 8) occasionally. She partakes in family outings and pitches in to help out with household needs and responsibilities as an adult sibling. Her role in her mother’s home is a beneficial, positive and a welcome one.

[54] The Mother’s Self Improvement in Parenting – The mother never had established any track record in parenting within her own family. She never parented her child X as he was apprehended at birth. Her only ‘parenting’ was in the context of access visits which were all supervised. However, she did successfully complete a Triple P parenting course and, more recently, enrolled a second time. She took an online webinar parenting class where the focus was on proper “consequencing” of children. She also attended ZOOM based sessions with Kids Cancer Care to help in dealing with cancer patient survivors, especially in these times of COVID. She enrolled in an online program offered by AFineParent that consisted of 16 hour long master class presentations, from which she clearly benefited as she described in great detail what she learned in each class. Parenting also involves learning about children, and the mother has pursued that by learning about brain development in children through the “The Brain Story” a program that includes international medical and developmental experts. But the parenting learning skills have not only been academic and/or online. The mother has had the benefit of ‘hands on’ care of her 3 year old brother, her younger siblings, and her two nieces for whom she sometimes provides child care, including overnights. There has been one ‘in person’ visit with X in the summer of 2019 during which the mother as well as the maternal grandmother and her adult sister B. had day outings with X and during which the mother was able to put some of the skills she learned to good use.

[55] The Mother’s Medical Supports – The family doctor, Dr. Dennis Dong, is in general practice. The mother saw him when she was at her worst and she seems to have bounced back under his care. He has been an advocate for her and truly seems to care for her physical and mental health. He has referred her to specialists, particularly those practicing in the mental health field. The mother was seen by Dr. Jonathan Tan, a psychiatrist at Foothills Medical Centre on a referral from the mother’s counselling psychologist Dr. Kate Schwartzenberger, in August and October 2016. She was admitted to the Peter Lougheed Centre in late January 2017 after showing disturbing signs of poor sleep, talking to herself, increased agitation and anger, and long periods of staring blankly. It appears that she had regressed and was again (or perhaps still) using drugs. Medically prescribed medications addressed her anxiety and agitation. In August 2018, she was seen by Dr. Joe Raiche a psychiatrist at the Foothills Medical Centre following an incident at an LRT (subway?) station. In December 2018, Dr. R. Taschere a psychiatric consultant, saw the mother shortly after she turned age 20, at the insistence of the maternal grandmother and on a referral by Dr. Dong. All of the foregoing specialists provided reports to Dr. Dong as the mother’s family physician who followed her throughout. The mother had many mental health assessments and consultations and a number of recommendations flowed from them.

[56] The Mother’s Self Improvements – The mother admittedly was in no shape to care for herself, much less care for others when she finally returned to Calgary to stay. She was almost totally reliant on her mother for the necessities of life, and for emotional and practical support in turning her life in the right direction. It is evident that this took much time, well over two years, but has been, by any reasonable measure, quite successful. The mother was restored to good physical health, she found a job at a Superstore, albeit part time currently during this global pandemic. She has been working out regularly. She has become enmeshed in the family and has rewarding relationships with her younger siblings, and with her sister and her children. She has undertaken a number of online courses through her union at work, has completed Retail Communication Skills, Parts 1 and 2, as well as a course in Personal Financial Essentials offered through McGill University. On an academic level, the mother has obtained a mark of B in a Bow Valley College course in English Composition. While she is still some distance from completing a high school equivalency, she is working on this as one of her goals of self improvement. The mother provides some evidence that she was registered for 2018-2019 academic year in a “Start Outreach High School” program (presumably upgrading) offered by the Calgary Board of Education. Her sister B. speaks of the mother taking classes to complete her GED so she can pursue post secondary education. In addition, the mother has had a learner’s driver’s licence for well over a year and a half and plans to take a driver education course when she can afford it.

[57] The Mother’s Relationship with the Society. - This was certainly an adverse relationship early in the child protection litigation. The mother was aligned with the father in opposing the society. The mother initially did not maintain regular contact with the society, often missed visits with the society, declined and refused to sign consents for release of information to the society, and co-operated mainly so that she could maintain visits with her son X. However, as the father’s influence over the mother waned, she did become more co-operative, did eventually sign consents, and began to follow some society recommendations. She developed a rapport with Ms. Walker, her child protection worker, who served as a conduit for information on how X was faring in the home of the PGM and to whom the mother reported on her progress in improvements in her life.

[58] All in all, the mother has greatly improved her life from what it was when the child was apprehended and even from when the order was made in Feb 2018. However, on closer examination the positive changes set out above, especially in light of the evidence at trial show some signs of frailty.

[59] While the father is not, at present, an influence in the mother’s life, he is not altogether out of it either. He is now back in the status review proceeding as a formal party. He supports the claim of his mother, the PGM, for deemed custody, the corollary of which is that he opposes the care and custody claim of the mother and/or the maternal grandmother. He wishes to have visits with his son. As of late October 2020, the society approved him to have virtual visits with X. The child’s legal representative conveyed (on consent) the child’s position with respect to his father, namely, that he likes talking with him and wants to see him in person. Regardless of with whom X lives, paternal access remains a live issue and, at least to that extent, the father still remains a factor in the mother’s life.

[60] The mother’s mental health is not an issue that the evidence shows has been dealt with successfully to date. In fact, the only significant formal therapeutic measure that the mother can point to is her Dialectical Behaviour Therapy sessions with Beverly Reed, M.A., a provisional psychologist working under the direction of a fully registered and qualified psychologist. Ms. Reed’s reports dated March 7, 2020 (after 7 sessions) and Dec 7, 2020 (after 24 sessions) are generally positive, but do not address any of the several mental health disorders and conditions that show up in the mother’s diagnoses by fully qualified psychiatrists who have seen the mother in the past. In fact, the DBT sessions, while regular, were not in person, but by video or by telephone. That is not to say that they were any less effective, but perhaps not as fulsome and forthright as ‘in person’ sessions may have been. Apart from the brevity of the reports of Ms. Reed, it appears that the mother did not disclose to Ms. Reed her relapse with alcohol which, according to the mother’s evidence at trial, occurred in the six months following January 2020, precisely at the time that the mother was seeing Ms. Reed. The court has to wonder about the efficacy of DBT therapy in these circumstances. Finally, the diagnoses of the mother were not the kinds that are quickly treated and resolved. For example, her anxiety and depression were long standing dating back to her childhood. Her insomnia and sleep disorders were being treated by sleep medication when she was still a young teen but were still plaguing her in her late teen years. She has received no formal treatment for her substance abuse disorder, and she clearly relapsed (with alcohol at least) in early 2020 after she had, on her own admission, stopped using since 2018. As for recommendations for substance abuse, the mother received these, but apparently did not pursue any except the DBT. Her most recent diagnoses in August 2018 and December 2018 included Post Traumatic Stress disorder, Adjustment disorder, Borderline Personality disorder and Metamphetamine Use (Substance Abuse) disorder, all of which are formal mental health disorders listed in the DSM-V. Ms. Reed did not make any mental health diagnosis in the DBT therapy. I am skeptical that DBT addresses these diagnosed disorders in any meaningful way, or that they have magically disappeared. Having the evidence of these in the reports of psychiatrists, it is incumbent on the mother to dispel the concerns that they raise. She does not seem to have managed to do so.

[61] The mother’s illegal drug use did not stop when she moved back to Calgary the last time (in June 2016). In fact, it continued in 2017 and 2018, the most recent the mother admits being in September 2018. However, there is no evidence that she took any steps to deal with her substance abuse disorder except for one “brief screening’ visit with the Adult Addiction Services (Calgary) in March 2020.[^14] She had no assessment done then or at any time, and, allegedly because the pandemic shut down programs, she has had no follow up. I note that she did nothing between September 2018 and March 2020 when there was no pandemic, and that in March 2020, she was secretly drinking in her room at home, at times to intoxication. In summary, the only evidence that drug use stopped in September 2018 is the mother’s statement under oath, unsupported by any independent evidence, and in the face of her admission of what I consider significant use of alcohol (at least) in the first six months of 2020. While stopping ‘cold turkey’ is not impossible, it is somewhat suspect in light of the mother’s long history of illegal drug use, how long it persisted, the substances she admits she used (marijuana, metamphetamines, fentanyl, ‘opiates’ and alcohol) and the absence of her confiding her full substance abuse history to any treatment person.

[62] I accept that the mother has been re-integrated back into her family, rather successfully. I also accept that she and the maternal grandmother have reconciled many of their differences and that she sees the maternal grandmother as her greatest support and advocate. The mother is more independent, especially when interacting with her son X by Skype, and is contributing to the family as an adult member in many ways. I seriously doubt that the mother and maternal grandmother have become intimates and confidantes. The maternal grandmother is assertive and my impression is that she pushes the mother to do things to improve herself, evidently for good reasons. The mother seems to resent some of these parental pressures and there is some evidence of push back, or at least, resistance. Of note is that the mother was secretive in her use (and abuse) of alcohol in the home in the first half of 2020, and the maternal grandmother was totally in the dark about this until she discovered empty bottles of alcohol in the garage. As Mr. Dahl stated in his Parental Capacity Assessment report, it appeared that the maternal grandmother had done most of the “heavy lifting” to the date of that report, and it was time for the mother to take a more assertive, independent role in their relationship, and for the maternal grandmother to “step back”. I agree that the mother is the more vulnerable and the more needy of the two.

[63] The mother’s improvements in parenting have, so far, been primarily long distance. She had access visits while in Algoma but after she returned to Calgary to stay, she has had only one in person visit which appeared to go well. She was not alone then, but had both her mother and her adult sister as supports. Otherwise, the mother’s visits have been by Skype. To her credit, the mother has pursued and successfully completed several programs geared to parenting. She has been able to put some of what she learned into practice, not so much with X because of the remote interaction with him, but with her younger sibling Colten, and her school age siblings and nieces. Her master classes, her Triple P parenting and her Kids Cancer Care sessions, although virtual, provide good child care principles and practices. To date, she has not been able to put these into practice with X in any significant way. What she has learned is, for the most part, inchoate as it applies to X.

[64] The mother’s main medical support is her family doctor, Dr. Dennis Dong. Unfortunately, his testimony at trial resulted in some significant credibility issues that undermined his reliability as a witness and as an advocate for the mother. For one thing, he may, as he says, have been the mother’s physician for the four years prior to January 2017, but she was not in Calgary for most of that time. Secondly, he seemed somewhat cavalier in the precision of the information he conveyed. For example, when he recounted from his clinic records, the mother’s attendances at his office, he left the impression that he had seen her on all of these occasions. However, in cross examination, he admitted that other clinic physicians had seen her, and his own personal attendances were much fewer. Thirdly, he was not aware of the mother’s ‘relapse’ in 2020, nor did he appear to be aware of the mother’s involuntary hospital admission in January 2017 and her stay at Foothills Hospital in August 2018 under a Form 10. Fourthly, and despite his admission that psychiatry was a specific interest of his as a general practitioner, he did not seem to be aware of the various mental health diagnoses made by several psychiatrists, diagnoses that, according to the documents presented at trial, were either requested by Dr. Dong, or copied to Dr. Dong as the mother’s family physician. Fifthly, he seemed unsure that the mother exhibited borderline personality disorder features, despite three psychiatrists including this in their reports after seeing the mother as a patient. I do not feel that I could rely on Dr. Dong’s testimony other than in a general way to indicate that the mother’s health had improved from when he had seen her in June 2016 when she came back to Calgary. I accept that Dr. Dong has been involved in patient transfers from other provinces and that these are able to be facilitated by him.

[65] The mother’s personal self improvements are evident in the number and variety of courses she has completed, and in her acquiring a job. Her ongoing progress is suggested by her physical training regime, her learning to drive to acquire her licence, her successful achievement of a grade 12 English Composition course, and her academic pursuit of high school equivalency. In addition to parenting courses, she has pursued courses of interest to her in areas that will stand her in good stead. She is searching for a career path, initially as a pharmacy assistant, but more recently as a hospital unit clerk. These are all good signs but are not yet realized. She has no GED and no evidence of what are her concrete academic objectives besides either doing a grade 10 math course or doing the GED exam. Her resorting to alcohol in the first half of 2020 is a contraindication of her success, and is a clear set back. She has had a learner’s licence for well over a year and is speaking of taking driver’s education which she cannot yet afford. She is still financially dependent on her mother and her plans are to remain there if X is placed in her care. The medical information filed by the society indicates that she had a boyfriend (Morgan) of 1 to 2 years in August 2018, and was three months pregnant in November 2017. She kept not only Dr. Dong, but also her mother and her DBT therapist in the dark about her alcohol use in 2020. Her behaviours when being assessed by physicians in 2016, 2017 and 2018 were not helpful, nor compliant, nor particularly informative, and she discharged herself against medical advice. In short, the mother has come a long way but not all that willingly, not all that quickly and not all that successfully – yet.

[66] While the society and the mother appear on better terms, the society seems to be actuated more by extricating itself from a supervisory role with caregivers residing a long way from the society’s jurisdiction. The bottom line of the society was that the child can be placed with either the PGM or with the mother and the maternal grandmother jointly. It feels that the child would be safe in either placement. From the perspective of the society’s relationship with the mother, this will come to an end when the court makes an order in this status review case. The society sees no reason for it to be saddled with a continued supervision order and, if it is not, then its relationship with the mother ends. It foresees its Calgary equivalent agency being involved, if at all, with the mother. In fairness, the relationship of the Algoma society with the mother has been increasingly shared by the society in Markham, and now in Oshawa, through inter agency accommodations. The mother has, however, developed a much better rapport with the Algoma society in the most recent past than she had in prior years..

[67] In summary, the mother’s history has too many still unanswered questions. She has diagnoses of ostensibly serious mental health issues for which she provides no persuasive evidence that they should not be a concern for this court. She has a long standing substance abuse history, both before and after she was with the father. She offers no proof that this has been dealt with by any specific treatment program, other than by her DBT therapy. But there is no evidence that DBT is an appropriate treatment for substance abuse problems. She has been less than forthcoming with many, if not most, of the persons with whom she has had encounters in an assessment or a therapeutic context. She admits to having been dishonest with some of them. On a practical level, she has little income, does not have a high school education, has no residence of her own, and simply plans to continue to live at her mother’s home with her siblings and her child X.

The Parenting Capacity Assessment

[68] The report of Mr. John Dahl, a Calgary psychologist was ordered pursuant to s. 98 of the CYFSA and is “evidence” in this proceeding.[^15] I have dealt with the issue of expert opinion evidence in a Ruling now reported at 2021 ONCJ 186. In that Ruling, I declined to qualify Mr. Dahl as an expert in the area of Parenting Capacity Assessment or to accept his opinion evidence, even though it was requested of him in the terms of the order that appointed him to conduct such assessment. However, I did not entirely discount the report of the assessment. Mr. Dahl administered a number of psychometric tests, scored the tests and gave his interpretation of the tests. While several could not be interpreted, others could. One such was the WAIS-IV.

[69] The test of cognitive functioning (the WAIS IV – Wechsler Adult Intelligence Scale - Fourth Edition) has four index scales on the basis of which, a Full Scale IQ (intelligence quotient) is based. For the mother, this full scale IQ was 81 (tenth percentile) which falls within the low average range. In the four index scales, the mother fell in the 4th percentile borderline range (Verbal Comprehension and Working Memory) and the 34th and 66th percentile ranges respectively (Perceptual Reasoning and Processing Speed). The most that can be said of these scores is that the mother is below average in three of the four index scales and overall, she falls within the low average range of intellectual functioning.

[70] I accept these test results as valid reflections of her cognitive abilities. The reason I do so is because this test is a standardized test that has long been accepted by the psychological community as a valid test of cognitive functioning. What they may mean in terms of her parenting capacity is impossible to say with any accuracy without the opinion of the assessor, except that she is below average in her cognitive functioning. I do not disqualify her as a parent on account of that. I imagine that many a parent who parents his or her child functions at a similar cognitive level and still manages to parent adequately. I can infer, at the very least, in absence of expert opinion as to the meaning of these scores, that the mother in this case would parent with a challenge as compared with mothers with higher IQ scores.

[71] There is another aspect of the PCA report that I do not discount entirely. That is the clinical observations by the assessor of the mother interacting with the child. These observations are not themselves opinions but form a part of the basis for the assessor’s opinion. In this case, the clinical observations were not in person, but utilized a Skype program. I take into account that this might be considered second best. I also consider that the observation periods were time limited lasting less than one hour each. The assessor’s observations were that the mother

“ … lacked the ability to demonstrate nurturing , warmth, caring and engagement necessary to facilitate attachment. She was observed to interact in a passive manner and lacked the “serve and return” interactions necessary to engage X and develop a relationship with him. Collateral contact report that she has demonstrated “amazing” parenting skills and was highly skilled with young children. This was not observed during observations …”

[72] One other circumstance factors into the PCA assessment. That is the timing of this assessment. It took place in early February to early March 2020. It was during this same time that the mother admitted at trial that she was secretly drinking alcohol in her room. This may well have skewed somewhat both the psychometric test results as well as the clinical observations that Mr. Dahl made of the mother. She never advised him that she was actively using alcohol during this time.

[73] In summary, the PCA of the mother did assist the court but only in limited ways. From it the court inferred

(a) that the mother’s intelligence level or overall cognitive functioning was somewhat below the average (normal);

(b) that contrary to the “amazing” parent she was described by others to be, the mother was somewhat lacking in her observed parent-child interactions with X; and

I also discount the PCA report because it represents, in many ways, a snapshot in time, and it was about one year old by the time of trial.

[74] In short, the PCA was not terrifically helpful as a measure of parenting capacity of the mother but not altogether useless. What parts were considered useful are those that seemed to coincide with other pieces of evidence admitted in this proceeding.

The Mother’s History of Access

[75] Maternal access to the child X has been somewhat atypical. Why this has turned out to be so bears some examination. This may be best looked at in a temporal framework.[^16]

[76] From birth […], 2014 to June 25, 2015 – On being released from hospital, the child X was placed in a society foster home in Algoma District. The mother and father, who then resided at Searchmont (in Algoma), exercised access that was supervised by the society. The frequency and duration of such access is unspecified in the court order and is unknown to this status review court but was stated by a society witness to have been regular and incident free, with few cancellations. The child was only six or seven month old at the end of this time.

[77] From June 25, 2015 to June 2016 – During this period, the father was removed as a party by court order dated June 24, 2015 and the access he had been having ended. The child was placed in the temporary care and custody of the PGM pursuant to an order of Justice M. Dunn. The PGM resided in Toronto (Markham) during this time with the child. The mother and father were still residing in Algoma but they were fighting and arguing and their relationship was deteriorating to the point that the mother tried to jump out of their moving vehicle. The mother saw the child in Toronto on X’s first birthday on […], 2015 (4 hours) and again on Dec 5, 2015 (7 hours) supervised by the PGM. The mother’s next access was March 24 – 28 , 2016 Easter weekend (7 hours per day) when the PGM and the child came to Algoma for a visit and it was supervised by the PGM. There is little evidence of electronic access during this time. The child was from 6 months to 1 ½ years old during this period of time. In June 2016, the mother finally separated from the father and left Algoma returning to her family in Calgary.

[78] From June 2016 to October 2017 – The mother’s access during this 16 month period was only by electronic means, using the Skype program. There is some discrepancy in how regular and how faithful the mother was in exercising access. For one thing, the mother was undergoing a period of recovery from the trauma she had suffered while in Algoma. There is evidence of a significant drug relapse in January, 2017, for which the mother was hospitalized. The mother’s contention that she exercised regular Skype access during this period was disbelieved by Justice Condon, and I share his views for the reasons he sets out in [paragraphs 116 and 117 of] his decision released Oct 2, 2017[^17]. In addition the PGM was fairly detailed in what contact the mother (and the maternal grandmother) actually had with the child during this time, and her version of these times[^18] was more acceptable to Justice Condon than was the mother’s. During this period of time, the child was ages 1 ½ to almost three years of age.

[79] From October 2017 to Feb 28, 2018 – Justice Condon dealt with three motions in his decision of October 2, 2017. One, brought by the mother, sought to have temporary care and custody of X varied so that he would be in Calgary, either in her care, or the maternal grandmother’s care, or both. She also included as an alternative claim, that she have specified access to X. While the variation claims were all dismissed, the mother was able to obtain specified interim maternal access. This included Skype access, but importantly, also included ‘in person’ access in Toronto, once each quarter, for alternate days over a six day period. These access terms were subsequently rolled over into the final order made on consent on Feb 28, 2019. The society evidence, which the mother did not dispute was that her Skype access in November and December were 2 – 3 times per month and that this was “more frequent” than before that time. During this period, the child celebrated his third birthday.

[80] From Feb 2018 to April 2019 – On Feb 28, 2018, the child was placed with the PGM subject to a society supervision order for nine months. The mother had access rights by both Skype, and ‘in person’ (each quarter in Toronto) during this time. It should be remembered that this was before the start of the pandemic. Moreover, it was in June 2018 when the child X was diagnosed with leukemia. Additionally, in August 2018, the mother was admitted as an emergency department admission and underwent a psychiatric assessment whence there resulted, among others, a diagnosis of metamphetamine disorder. Although there were two quarters in this time period, the mother did not travel to Toronto to spend time with her child who had been diagnosed with leukemia. What the mother’s actual Skype contact during this period is not detailed, but from all indications, it was not frequent.

[81] November 14, 2018 to January 19, 2021 – The present status review application was first returnable Nov 14, 2018. Since then, the mother’s court ordered access has been the same as it was under the previous order. The mother has evidently re-assessed her relationship with X during this time as she has become much more committed in participating in regular access visits with him. This included an ‘in person’ visit in June 2019 in Toronto brokered through the York Region society which was carrying out the Algoma society’s supervisory role. The mother, her sister B., and the maternal grandmother all travelled to Toronto and exercised the quarterly access that the mother had been granted. By all accounts, the visit went quite well and involved several excursions in the Toronto area. This is also corroborated by photographs of the child interacting with the mother in contexts that demonstrate engagement, enjoyment and normality. Even more importantly, the mother’s Skype visits became more regular and the quality of these visits improved from what they had been previously. The mother also exhibited more independence in initiating and in participating in these visits. She evidently kept a log detailing calls to and from the PGM with respect to these Skype calls , from April 2019 to Jan 2021, and these are set out with details as to the actual length of each call in the very lengthy paragraph [82] (17 pages) of the mother’s trial affidavit. I accept that these Skype calls did take place, particularly as the PGM did not seem to take issue with them. The quality of the Skype access visits varied as one would expect. For the most part, they seemed to last from ½ hour to up to 2 hours so I infer, aside from descriptions of what transpired during such access, that there was some positive interaction between the child and his mother. I do not disbelieve the PGM’s statements in her trial affidavit that at times, the mother was asleep during Skype calls, and at others, she seemed disinterested or unengaged. Then there is the child who reportedly enjoyed the calls and often wanted them to last longer, although there were calls when he was not in a good mood. All in all, in this period of time, the relationship between the mother and the child became stronger, was buttressed by regular and frequent Skype contact, and one mutually enjoyable ‘in person’ visit in June 2018 which, according to most reports, went quite well. In this period of time, the child was roughly between ages 4 to 6.

[82] January 19, 2021 to the present - While details of Skype access visits were not documented after January 19, 2021, the mother concede in her trial viva voce testimony on March 25, 2021 that Skype access was different over the previous month. The child X has refused to Skype with her recently, and when he does, he didn’t answer her questions and ignored her. Why this difference is unexplained. The mother simply said that she came out of her comfort zone.

[83] From an overall perspective, the mother’s access has improved in quantity, and in quality in the time since X’s birth, until the most recent unexplained reluctance on X’s part to participate in access calls. While six years is a long time, much took place within those six years that impacted on maternal access. For much of that time, the mother was either not in any condition to exercise access, or the child was undergoing painful treatment for his leukemia, or the mother made little effort to keep in touch with him. Her rejuvenated interest in 2019 to 2021 is to her credit as it resulted in a closer relationship between herself and X. The mother also claims to have improved in the sense that she has taken courses and programs to sharpen her child care knowledge and skills, including to a child with cancer. She has engaged positively with children within her Calgary family setting. She has made one in person visit to Toronto. However, she has not been the model of maternal consistency. She clearly had what I would consider “relapses” in early 2017 and early 2018 after periods of improvement. Although she was made aware of X’s leukemia in June 208, she has never made any contact with his treating cancer physician (Dr. Naqvi) or any other of X’s health care providers in Toronto. She has apparently relied on society personnel or the PGM to keep her informed. Despite the fact that she was entitled to quarterly “in person” access for visits spanning six days, only one such visit actually materialized over the period from when this order was made October 2017 to the present (14 possible ‘in person’ quarterly visits). I appreciate that the cost of even one visit is considerable. I also appreciate that the pandemic has significantly impeded, perhaps prevented travel. Nevertheless, the absence of personal contact, for significant periods, regardless of the reasons, is a factor that impacts on the placement issue in this case, and regrettably for the mother, in a negative fashion.

Summary – Is a Further Protection Order Needed

[84] In answering this question with respect to the mother, the actual question is whether a further protection order is needed if the child X was to be placed in her care and custody. The answer at this time, based on the foregoing is, yes. Despite the progress that the mother has made, it is not enough that the court would simply place the child in her sole care. Moreover, it is progress made relatively late in the day. Finally, it is not enough progress as it still leaves concerns that have been raised by the evidence in this case unanswered.

[85] The alternative claim of the mother is placement with herself and the maternal grandmother jointly. While this is a more reasonable resolution, it is clear that the mother would be the main caregiver in such a situation. The maternal grandmother is an impressive woman and is clearly the force behind the family. But she is a mother herself of her several children, has a full time job, is a single mother and bears the full economic brunt of the family. I am not persuaded that this alternative is the solution, and for the following reasons:

(a) There has been a lengthy history of a bad relationship between the mother and the maternal grandmother dateing back to the mother’s pre-teen years. The mother had little respect for the maternal grandmother for many years. The relationship was peppered with disobedience, rebellion, poor and sometimes no communication, and a penchant for control by the maternal grandmother. The grandmother, despite her efforts, was unsuccessful in keeping the mother in line, even with the help of the police and children’s services agencies. The mother hung around with the wrong crowd, got into drug use, fled to Ontario with a much older man, engaged in sexual intercourse at age 14 and 15, was routinely AWOL from her group home and basically bad mouthed the maternal grandmother whenever she could. It reached a point that the maternal grandmother took such extreme measures as having the mother admitted involuntarily to mental health facilities, and eventually voluntarily transferred custody to the Alberta Director. In short, a significantly dysfunctional relationship. The court cannot simply disregard this history even though it is superseded by a brighter more recent one.

(b) The evidence of the rapprochement of the mother and the maternal grandmother since she returned to Calgary in June 2016 is not as impressive as first appears. The mother spent a long time physically healing. She then had two reverses in early 2017 and 2018. This was all while residing with the maternal grandmother. Then there was the relapse in the first half of 2020, again in the same home. The court has to question how effective the maternal grandmother has actually been in parenting the mother, who is, and will always be her child.

(c) The evidence that the maternal grandmother is the mother’s main support and greatest advocate is also somewhat suspect if the inference invited is that the mother and the maternal grandmother confide in one another and work cohesively and cohabit co-operatively. This is borne out by the mother’s evidence at trial that the mother, as late as 2020, was feeling tired, was feeling isolated, was not making connections, was feeling pressure from the maternal grandmother to get on her feet, and that the mother basically relapsed into secretly drinking alcohol. That she did so for about six months and kept this away from the maternal grandmother raises the question of how close they really are.

(d) One other aspect of this 2020 relapse is that the mother never did confess to the maternal grandmother that she had been surreptitiously drinking. In fact, the mother would hide her empty bottles in the garage and the maternal grandmother came across them one day by accident. Presumably, they had a confrontational discussion at that point. The maternal grandmother never mentioned any of this in either her trial affidavit evidence or her trial viva voce evidence even though it is obvious from the mother’s testimony that the maternal grandmother was aware of this relapse. This casts some doubt on placing reliance on the maternal grandmother’s supervision and control of what goes on in her home, and on her willingness to be forthright with the court.

(e) One further problem is that the maternal grandmother has not been successful in dealing with the mother’s mental health problems or in getting the mother to deal with them. In fact, from the evidence generated in this case, it appears that the most recent strides made by the mother, with encouragement of the maternal grandmother, have been superficial. While DBT is helpful, does it really qualify as a remedy for all that ails the mother.

[86] While the maternal grandmother is a viable option for sole placement of the child X, the reality is that the mother would still be the main caregiver for X. The maternal grandmother already relies on, and delegates to the mother, as her adult child in the home, many of her child care and household duties. This pandemic will not last forever, and the maternal grandmother will eventually have to work away from her home. This would leave the child in the care of the mother alone.

[87] Would a placement with the mother, or with the mother and the maternal grandmother jointly, subject to society supervision be an adequate measure to overcome the protection concerns. In theory, possibly. However, the society is adamant that it not only does not wish to supervise such placement, but would be totally reliant on another agency to carry out this function. The court can acknowledge the Algoma society’s reluctance, but when it comes right down to the heart of continued society supervision, the Algoma society is stuck with this despite its wishes otherwise. In fact, the society has accomplished that very thing for several years utilizing the York Region society as its sister agency to carry out its supervision responsibilities. On the other hand, while inter agency comity in Ontario may be a reality, out of province child protection agencies may not have as well developed protocols with Ontario societies to accommodate a situation such as this.

[88] The other problem with placement in Calgary, regardless of whether with the mother or the maternal grandmother, or with them jointly, is that no ‘kinship’ placement assessment has actually been done. While one was requested by the Algoma society when it was considering placement with the maternal grandmother[^19], what was done was only a home environmental safety assessment, which was a much less fulsome and much more limited assessment. There is no assurance that Alberta Child Welfare will step in as a substitute for the Algoma society as the analogous agency in Alberta to supervise any placement in the maternal grandmother’s home. In fact, if Alberta’s child protection legislation is at all similar to Ontario’s, then Alberta can really do very little as it has no finding that the child X is in need of protection nor does it have any court order.

The Paternal Grandmother (PGM) and Paternal Grandfather (PGF)

[89] The PGM has many positives and few negatives as a caregiver and custodian of her grandson X. She was not given temporary care and custody of X for about six months after his birth. This was, from all accounts because the father denied paternity of X and the mother corroborated this denial. Accordingly, she was, at that time, not considered a blood relative and the society was reluctant to place X with a “putative” grandmother. To make the situation more convoluted, the father refused to participate in paternity testing. Despite these obstacles, the PGM (and I also include the paternal grandfather – the PGF) at their own expense, hired a lawyer and arranged for Y-chromosome genetic tests using the PGF’s body tissues, the results of which confirmed that the father was indeed the biological father of X, and that the PGM and PGF were his biological paternal grandparents. The PGM proffered herself as a temporary kin placement, and underwent a positive kinship assessment which persuaded the society that placement with her was the appropriate placement. She has had care and custody continuously since X was about six months old.

[90] The PGM has never worked outside the home. She is a homemaker and has always been so since she married the PGF. She is age 57 and has four children. Her oldest daughter is age 33. She is married, has a husband and children and resides in Scarborough. The father of X is age 29. The next child, a daughter is age 22 and is in university pursuing a career in dentistry and currently working part time as a dental assistant. The youngest son, age 19, is in North Carolina studying aviation with ambitions of becoming an airline pilot. The two older children were born in Turkey; the two younger in Canada. The family is of the Muslim religion and follows the Muslim faith and beliefs The family emigrated from Turkey to Canada in 1995 and lived in Windsor for a number of years before they moved to Algoma District (Searchmont). The PGF is the family breadwinner. He works full time at the local steel mill and when not working there, he works in his own mechanical proprietorship. He owns a house in Sault Ste. Marie and owns a large acreage in Searchmont, a one hour car ride away, where his home is located. The PGM and the three youngest children were residing with the PGF in Searchmont. However, the family decided that the PGM and the children would move to Markham (Toronto) at the insistence of the oldest child who was living there, and because Searchmont was too small and too isolated to suit the younger children who were close to post secondary school ages. In fact, they left Searchmont the same day that the father and the mother had arrived in Algoma: they did not encounter each other. The PGF was planning to remain in Searchmont until he could sell the property and then move to rejoin the PGM. He has not been successful to date and continues to work. He is the sole financial support of his family. He Skypes with the PGM two or three times per week and travels to visit with the PGM about three days per month since she left Searchmont. He has plans to retire whenever he can.

[91] The PGM was residing in Markham when X first came into her care. She has more recently relocated to Durham County. The younger daughter, A., and the younger son, Al., are X’s paternal aunt and uncle respectively and have resided with him and the PGM until their recent departures to pursue their studies. From the evidence of A., they have a close and quasi ‘older sibling’ relationship with X whom they have baby sat and helped care for during his illness. The PGM has been with X virtually on a 24/7 basis from when he was 6 months of age. She has cared for his every need as he was growing to age 3 ½ when he was diagnosed with leukemia. Thereafter, his care needs increased with medical procedures, operations, consultations with physicians and nurses, medications, hospital visits, and chemotherapy, comforting him when he was suffering from chemo sessions, all the while dealing with the society and her responsibilities as a mother to her own children and as a wife to her husband. The PGM was also dealing with the mother who, according to the PGM, was somewhat erratic in her contacts with her and with X.

[92] I accept the PGM’s statement that the PGM has acted more as a mother than as a grandmother to X. She states that she received very little financial assistance from the society (approximately $300 in six years), and none from the mother or the maternal family members. Aside from the child tax benefit, the tab for the PGM and her care of X has fallen to the PGF to bear. No one has hinted that the child’s biological father has ever spent even a nickel for him.

[93] It is little wonder that the PGM has developed a close bond with X and that X has formed a very close attachment to the PGM. It is a normal occurrence for such connections to foster and thrive between caregivers and those cared for. One might speculate that such a connection could even be enhanced where the care receiver suffers from the torment of a debilitating, and at times, agonizing illness. The evidence in this case is that this is precisely what has happened. The child attached to his main caregiver. The PGM provided him with nourishment, nurturance and affection. The closeness between them was solidified by her care of him during his treatment. Everything she has done has been beneficial for the child and according to all reports, he is a lovely child, with a positive prognosis.

[94] The logical question in the context of what has taken place in the last six years is “why change anything when the evidence seems to confirm that all is going so well?”

[95] There are, as hinted above, some less than positive aspects of the paternal family. The major one is the child’s father. Aside from the comments about the father in paragraphs [35] to [39] above, admittedly unflattering, the PGM’s view of the father may be clouded by the fact that he is her son. In fact, the society questions the PGM’s insight as to the father as a potential source of harm for X, and her assessment of him as a risk. It points to one occasion when the PGM allowed the father to speak with X on a Skype call, which was contrary to her supervision order condition that she permit him no access “except as arranged or agreed by the Society or permitted by the court”. This was the only transgression of the PGM’s conditions and was never repeated. The PGM explained that this took place during a Skype conversation she was having with the PGF, and that the father’s contact with X was very brief and remote. She also explained that she did not consider this as paternal access. At present, the father wants to have access to X and the society is apparently permitting this, reportedly all supervised. The PGM and the PGF both reported in their testimony at trial that they have recently been seeing positive changes in the father. While this may be true, it may also be troublesome in that both are biased as the father is their son, and their assessment of him in the past has not always been accurate. On the whole, the PGM has followed the society’s direction with respect to contact by the father with the child X, and one distant incident, some time ago, and since never repeated, does not come even close to questioning the placement of the child with the PGM.

[96] There are also historical events that may cause some concern. One is an allegation that the eldest child, M. (now age 33 with three children), when a teen in Windsor was exhibiting rebellious behaviours, not following the rules of the home, and wanting more independence. There is also a report of the father yelling at M. and chasing her with a pellet gun in the home in their teen years. These are very dated allegations and the evidence seems to confirm that this was not atypical teen behaviour, particularly of an immigrant child in a new environment, that has long been resolved and is ancient history.

[97] Of more recent vintage and perhaps of more concern, are allegations, made by the mother, that the PGF in particular, and the PGM, on at least one occasion, were not only aware of, but condoned the father’s ill treatment including infliction of physical violence by the father on the mother. Other maternal allegations, in the same vein, claim that the PGF withheld food from the mother, pointed a (long)gun at her and basically held her captive in Searchmont. I have difficulty believing this and suspect that it is a very subjective account by the mother. The evidence of the PGF and PGM is in contradiction or diametrically opposed, or provides alternative versions. For one thing, the PGM never resided in Searchmont when the mother did. At most, she was there on two or three visits on special occasions. The PGM claims she never saw any physical violence by the father to the mother although she admits she intervened once when their arguing became hot and heavy, and she threatened not to return with X for further visits if they were going to fight. PGF denied ever pointing any firearm at the mother. He admitted candidly that the mother and father dropped into his life out of the blue, that he was not wanting them to be there but felt compelled to provide some place with a roof over their heads. He was contacted by the OPP and reported their presence to the police the next day. The mother was then returned to Calgary by the local society. He also conceded that they returned one day before the mother gave birth to X, and he permitted them to stay in an outbuilding on his property and in his basement for about two years until the mother returned to Calgary. During this time, he admitted that the mother and father fought like cats and dogs but he was never an eyewitness to any physical violence by the father to the mother. Moreover, he describes the mother as having a vicious temper and as able as the father to fight and argue. He claims the mother had no money and received none from her family in Calgary. She had no job. He recounts that he raised funds from his Muslim community and gave this to the mother. The mother and father ate food that he had purchased and had the run of the place as he was working most of the time. He claims that the mother was free to leave and he would have preferred that she did. In fact, he claims she did separate from the father at least four times, once going to Women in Crisis, a local women’s shelter, but she always returned. She never once complained to him about being beaten by the father, nor did she ever ask him to call the police. The PGF decided that the mother had some severe mental health problems, a terrible temper, and anger control issues. He concluded that their relationship was very dysfunctional.

[98] In summary, the PGF did not invite the mother and father to his residence in Searchmont. He did not want them there. They clearly had arguments and a very poor relationship. I disbelieve the mother if she implies that the PGF victimized her or abetted the father in victimizing her. What happened between the mother and the father beyond yelling at one another, shoving, arguing and name calling that was witnessed by multiple persons, was done in private between themselves. The PGF was in touch with police and society workers and was, at most, reluctantly tolerating the mother and father because he was their only resource in Algoma. The mother had ample opportunity, and freedom, to lay a complaint with the authorities and never did until she returned to Calgary in June 2016. As for the PGM, she was, for almost all of the time that the mother was in Algoma, living in Markham, and but for two or three visits to Searchmont, was not able to be an eyewitness to what was happening there.

[99] The court’s impression of the PGM is a positive one as a caregiver and custodian of X. Even the mother had little to complain about the PGM’s care of X. In fact, the historical evidence from the previous child protection proceeding involving X shows that the mother early on in that proceeding advocated the PGM as a kin placement as the mother had no one from her own family in Calgary to put forward for this role. Moreover, after over three years of litigating that proceeding with the society, during almost all of which time the child X was in the care of the PGM, the mother consented to an order that continued that very placement for a further nine months. The mother, while wanting the child in her own or her Calgary family’s care, seems to concede that the PGM has taken good care of X. So too does the society. It finds no fault with the PGM and commends her for her devotion to her grandson during the time he has contended with leukemia. Its only reservation is not with her care of the child. Rather, it is with her lack of insight about the risk that the father represents for the child.

The Best Interest of the Child

[100] Both the CYFSA statute and the jurisprudence relating to the test in a status review require the court to apply the best interests of the child[^20] in making its placement decision. In the usual course, the best interests considerations would apply to the contest between the society, on one side, and one or more persons opposing the society, on the other. That dynamic is not the case here. It is more the best interests of the child in the context of placement of the child with the mother or with the PGM. Or in a more classical description, do the child’s best interests favour placement with the maternal family or with the paternal family?

[101] Only the circumstances in those listed in s.74(3) that the evidence shows are relevant to the decision that has to be made are taken into account in the best interests test. For example, indigenous circumstances are not relevant in this case because the child is not indigenous. There is no priority among these relevant circumstances. The weight that the court gives to any particular circumstance is based on the evidence in the case. Any one circumstance may have more of an impact than another.

[102] There is always a starting point. All things being equal, it is fair to say that a child is generally better off being raised by his parent rather than by his grandparent. The legislative scheme gives priority of care and custody to parents as the default preference. Biological parents, for example have a statutory right to custody of their children. Grandparents do not. A grandparental custodial right arises only with a court order that grants such right.[^21] Here, that preference would favour the mother and the father. However, this is a preference that biological parents can lose for a number and variety of reasons. New preferences and a new status quo can result from society interventions in the family of the mother and father of a child. In the present case, all things are not equal as between the choices in placement that the court must make. The circumstances that the court is mandated to consider provides a convenient list of what factors the court takes into account in making it decision.

[103] Section 74(3) has three subsections. The first (a) deals with the child’s views and wishes. The second (b) applies only if the child is indigenous, which is not the case here. The third (c) has eleven paragraphs but the list is non exhaustive. In other words, the court must consider under (c) “any other circumstance of the case that the person considers relevant, including” the eleven that are listed.

[104] (a) the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained. – The child X is six years of age. He has legal representation by Ms. L. Marshall, a panel lawyer of the Office of the Children’s Lawyer. The parties participating in this proceeding were able to place before the court a Statement of Agreed Facts in which they agreed that the views and wishes of the child would be admissible under the state of mind exception to the rule against hearsay. Those views and wishes were as set out below:

(a) He likes talking to his mother.

(b) He wants to talk to the mother more.

(d) He likes talking to the father.

(e) He wants to see the father in person.

(f) He wants to remain living with the paternal grandmother.

[105] These are no surprise to the court based on the evidence presented in this case. In fact, they are logical views of a six year old child in the circumstances of, and with the life history of X.

[106] The question is what weight this court should give to these views and wishes. The statutory direction is that the judicial weight is that which is “due”, and that it be in accordance with the child’s “age and maturity”. The only exception is if the child’s views and wishes cannot be ascertained.

[107] Firstly, these can be ascertained. In fact, they are admitted to be by all parties by virtue of the Statement of Agreed Facts. Secondly, that they can be ascertained is evident from the fact that they are presented by the child’s legal representative who interviewed the child on two occasions (Jan.11, 2021 and Feb.5, 2021) not long before the trial commenced.

[108] The due weight is defined by age and maturity. The child is old enough to articulate his views and wishes. In fact, the child’s communicative abilities are quite developed. He has had communications, not only with his legal counsel, but also with his paternal grandmother, his mother, by Skype calls and one ‘in person’ visit, with his maternal family, with his father through society arranged remote access visits, and inferentially with many health care providers since he was diagnosed with leukemia. There is no indication of any impairment of the child’s cognitive functioning or of his communicative abilities. He is being tutored at the moment, but was registered and on a waiting list for a virtual school. He recognizes the constellation of significant persons in his life. There is no reason why the court should discount the child’s expressed views and wishes as presented to the court.

[109] This is a major factor in the court’s decision. What this case is all about is the child. While very young children cannot verbally communicate what they want, this child can. His wishes as to whom he sees and speaks with, and with whom he lives are key decisions that will impact immensely on his life. This is particularly so when the choices of his future residence are as far apart as Calgary and Oshawa, and as different as his maternal family and his paternal family. The due weight accorded is a considerable one.

[110] (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs – The physical needs of this particular child have been increased by reason of his leukemia. His treatment is still ongoing and will continue until at least August of 2021. He was diagnosed in June 2018 and has undergone almost three years of an arduous, painful and, at times, debilitating cancer treatment program. He has had all of his treatment at The Sick Kids hospital by a hospital team of medical caregivers. His paternal grandmother has had both the time and the ability to ensure that his appointments were all faithfully attended. She has followed medical instructions scrupulously, and has always kept a close eye for any adverse signs such as appetite loss or fever. The child was only age three years old when diagnosed and has had operations and chemotherapy including injections into his spine, with prescription changes every three months. He is medically vulnerable and his immune system is somewhat compromised. He is at a higher risk than other children to other (including Covid 19) infections, and the PGM attests to the vigilance she exercises in following recommended protocols with him.

[111] The mother has never spoken to the child’s cancer doctor or to the Sick Kids medical team. She has made enquiries through her family’s physician and he has assured the court that the medical care of X can readily be transferred to a Calgary hospital which offers equivalent medical care as Sick Kids. In fact, however, no arrangements have been made with any Calgary cancer hospital. No cancer medical physician has confirmed that carriage of X’s cancer treatment will be continued in Calgary under his or her supervision. The mother’s only knowledge of what X has been through or what X needs has been what she has learned from the PGM. The mother has no personal vehicle and no ability to drive should X be required to be brought to a Calgary hospital. While the maternal grandmother is working out of her home, and she does drive, this is a measure that has resulted because of the pandemic and it is questionable if it will continue indefinitely. Moreover, the mother works, and attends courses and classes, remotely for now, but clearly not forever. The mother’s home has several other children, all of whom may, despite being related to X, be a source of possible infection for him.

[112] In the balance, the current regime seems the more reasonable one to follow. It does not involve disruption that a transfer to Calgary will inevitably entail. The child is familiar now with his medical caregivers and has had three years of routine. Why change that now? What is the quid pro quo that would result if such change were to take place? If it is only that he will be living with his maternal family and with his mother, this is not sufficient to warrant such change. The appropriate care and treatment to meet X’s physical (ie mainly medical) needs at this time are in Toronto.

[113] In addition to the child’s medical needs, this part of the best interests test also includes his mental and emotional needs. It is without question that X has emotional needs that have been and are currently being addressed by his PGM. The mother is a positive figure in X’s life, but she does not compare even remotely to the PGM as the person providing the nurturance and meeting X’s emotional needs. This may be because of absence, or limited contact of the mother in the child’s life over his lifetime, or it could be because of the quality of that contact, but it is not the closeness that is evident in the relationship that X shares with his paternal grandmother. The psychologist John Dahl reports in his clinical observations that the mother [at page 17] “appeared to struggle with the interactions necessary to prompt attachment”. It is the conclusion of this court that the child’s emotional and mental attachments are to his grandmother, and not so much to his mother. This is reflected in the child’s views and wishes to see and talk with his mother, but to live with his paternal grandmother.

[114] (ii) the child’s physical, mental and emotional level of development – Closely connected to the child’s physical, mental and emotional needs is his level of development in those areas. For a six year old child, X is far from a mature adult. He needs socialization, education, parental guidance, and countless other aspect of child rearing that any six year old child requires to grow into a mature adult. At present, he seems to be on target, but for his leukemia and the exigencies of the global pandemic. He is invariably described as a lovely and lovable child. He has clearly been sheltered by his PGM but not to the point of becoming reclusive. In fact, he has travelled rather extensively for so young an age, twice to Turkey where he met paternal extended family and family friends, and twice at least to Algoma (Searchmont). He has had the benefit of contacts with his mother, mostly by remote means, and more recently with his father. He has close relationships with his paternal aunt and uncle who both resided with him and treated him more as a baby brother than as a nephew. He has met with some maternal family members, again remotely, but enough to be familiar to and with them. He is being tutored. He clearly relies on the PGM for all of his basic physical needs (food / clothing / shelter) as well as his emotional needs for affection and attention. He is not reported by anyone to be lagging or developmentally delayed in any aspect of his life. In short, aside from his leukemia, he is progressing as a normal six year old boy. This is ascribed to his upbringing to date which since age six months, has been with his PGM.

[115] 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 – This is a manifold circumstance that has some relevance to this child. The father’s race and ancestry is Turkey. He was born there and emigrated to Canada when young. The mother was born in Canada but her ancestry is, at least in part, Philippino. The evidence does not disclose that the maternal family has retained or is closely connected to its Philippino past. Rather, the mother and her family in Calgary appear to have assimilated into Canadian society. It is unclear whether the Philippino connection is maternal or paternal. The maternal grandparents of the child X have been separated for some time and the maternal grandmother has since had a child with another man. The maternal family is Christian and has ties to the Catholic faith. By contrast, the paternal family is Muslim. The family is bilingual speaking both Turkish and English. It is a first generation family, the two youngest children of which were born in Canada and are dual citizens, There is clearly a Turkish ancestral and ethnic connection as the family has extended family in Turkey, and the youngest daughter attended one post secondary year of schooling in Turkey. The child X is mixed Turkish and Philippino ethnically and presumably another race as well. He was raised in the Muslim faith and has ties more to his Turkish Muslim side of his family than to the mother’s side. One assumes that he follows the Muslim practices of his PGM as he is immersed in these by virtue of residing with his PGM. The court does not have preferences for any racial, ancestral, creedal or ethnic ties for any child that comes before it but does accord deference to those that any such child may have. In the present case, placement with the grandmother would not only maintain such ties but likely would foster them as the child ages and develops. Conversely, if the child were to reside with the mother’s family, these Turkish ties would likely wither over time and perhaps be replaced by more Canadian ties.

[116] The other aspects of this consideration are either not applicable or marginal at this point in the child’s life. The additional purposes set out in s.1(2) CYFSA advocates for and promotes the least disruptive course of action available and appropriate, and one that respects a child’s need for continuity of care within a family and cultural environment. The evidence in this case, based on this consideration, favours the child remaining with the paternal grandmother.

[117] (iv) the child’s cultural and linguistic heritage - Any cultural or linguistic heritage of the child X has been acquired through his paternal family. There is little if any evidence that X shares an cultural or linguistic features with his mother or her family aside from the fact that they both converse in English. In contrast, X is ethnically half Turkish and has ties to that part of his family that are both cultural and linguistic. His grandmother is a first generation Canadian who was born, raised, educated and married in Turkey before she came to Canada. her Turkish roots remain in Turkey and she is obviously close to them. She has been back for visits to Turkey twice, with the child X in tow on both occasions. She speaks the Turkish language and practices Turkish customs and the Muslim religion and beliefs which she shares with her grandchild X. To place X with the mother and her family will remove him from all of these influences as the maternal family has no links to them. At most, the evidence disclosed that the maternal family has acquaintances who were Muslim and that the family is not antipathetic to them. The mother has not elaborated on how she would foster X’s Turkish cultural and linguistic ties if he were to be placed with her.

[118] (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 – This circumstance can be confusing in its interpretation. The mother is clearly the child’s parent biologically speaking. However, the mother has never parented the child as a parent. The child was removed from her care at birth. The PGM is not a biological parent to X. She is, however, a statutory parent under several definitions found in the CYFSA. Moreover, she has acted not only as a parent to X , but his sole parent continuously for over six years. From any reasonable point of view, the PGM is the child’s ‘parent’ for purposes of considering the importance of the child’s development of a positive relationship with a parent. In fact, the child has done that and he has thrived in that relationship. There is no reason to end that relationship as it is of critical importance for the child that it continue to grow and prosper. Moreover, the evidence shows that the child is secure in his place as a member of the PGM’s family. He has security and stability that is residential, financial, medical, educational and domestic. He may or may not have that if he lived with his mother. The fact is that he has not had the opportunity. From this court’s point of view, a tried and true placement is not one to be traded for one that may or may not be equivalent unless there is some very good reason for that trade. There is not in this case. The PGM has established an enviable track record in being the primary child care giver. The mother has not. Both are family from the child’s vantage point. From this consideration, the PGM represents the more desirable placement.

[119] (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 – What is clear from the evidence is that the child has much closer emotional ties to his PGM than to his mother. It is equally clear that his emotional ties with his paternal family are closer than to his maternal family. This is hardly surprising in light of the time spent with these persons and the quality of that time. His contact with his mother has been primarily through remote means (Skype) and, except for one visit over several days two years ago, has not been ‘in person’ since he was a baby. He knows his MGM, and his maternal aunt B., but to a much lesser degree than his mother. He knows children in Calgary only by name and by peripheral contacts during Skype calls with his mother. He does not know his maternal grandfather and there is little evidence that he has conversed with the mother’s stepfather, now separated, albeit still on friendly terms with the maternal family. On the other hand, he has had visits with his father remotely and wishes these to increase and also be in person. He has a close relationship with his paternal grandfather through twice weekly Skype visits and once a month ‘in person’ visits to the PGM. He also has enjoyed a close relationship with his aunt A. and his uncle Al. who lived with him and the PGM until they left to pursue their education. With the geographical distance between maternal and paternal households, either maternal or paternal ties must inevitably suffer. The closer ties to the paternal family militates for the child to remain living where he is at present.

[120] (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity - Continuity of care can only be considered as care by the PGM as this care has been continuous for six years. The mother has had no care of the child at any time. The CYFSA promotes continuity of care in the additional purposes it lists for this statute [s.1(2)]. It also includes other mechanisms to maintain continuity of care, or at least to minimize disruption for children who must be relocated. For example, it prefers less disruptive alternatives [s.101(3)], requires the court to consider placement with relatives, neighbours, extended family or community members [s.101(4)]. There is no question but that placement with the mother would be disruptive and would remove the child X from all that is, and has been, familiar and comfortable. While children are resilient, and many a child has been disrupted and for a variety of reasons, Ontario child protection law favours minimal disruption unless necessary. This would best be accomplished in this case by the child remaining with the PGM.

[121] (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 – This is a circumstance that is better suited to a case where the contest is between the society and a parent (biological or statutory). But there is no such contest here. The society’s official plan of care in this status review proceeding is actually two alternative plans, neither of which contemplates any further society involvement with the child. The society essentially plans (or proposes) that a deemed custody order be made either in favour of the mother or the PGM, with access as the case may be to the other and to the father regardless of who receives deemed custody. In fairness to the society, in its submissions at trial, it orally changed its plan with respect to deemed custody to the mother, and instead advocated deemed custody to the mother and the MGM jointly, with an implicit proviso that the mother continue to reside with the MGM. Frankly, these alternative Plans of Care, even with the oral amendment, are both defective. They have no provisions for who will be responsible for the financial and logistical arrangements of access by either the mother or by the PGM if ‘in person’ access is exercised by them. Nor does it provide for paternal access in Calgary other than that it be supervised at an unidentified supervised access facility. The plan for maternal ‘in person’ access is to increase progressively but with no cogent reason why, other than a pre-requisite that the mother complete three quarters of the available ‘in person’ visits in the prior year. This is in spite of the fact that the mother has only exercised one of fourteen available ‘in person’ visits to date, has stated that these are very expensive for her family, has shown that she cannot even afford to pay for driver’s education classes, much less four return trips per year to Toronto, and that the current pandemic may well practically prevent ‘in person’ visits. The society’s plan of care is presented with little attention to access details that will inevitably invite variation applications.

[122] This statutory comparison as a circumstance is not applicable in the present case.

[123] (ix) the effects on the child of delay in the disposition of the case – Delay in the disposition of this status review case is a potentially confusing consideration. If the choice is between a further protection order [under s.101] and a deemed custody order [under s.102], then the protection order would extend the proceeding. It would entail a further status review later on, and who knows how long that would take to complete. On the other hand, if the child remained in the care of the PGM with a protection order, from the child’s point of view, no observable change from the present would result. It is only if the child were placed with the mother with a protection order that very significant changes in the child’s life would materialize. In either case, a further protection order would delay a final resolution of the child.

[124] There would be no delay in disposition if that disposition was a deemed custody order to either the mother or to the PGM. It would end the involvement of the society immediately. As far as child protection litigation is concerned, a deemed custody order would end any final delay in disposition, regardless of who was awarded deemed custody.

[125] In considering delay, the optimal choice is a deemed custody order rather than a further protection order. However, this helps not at all in choosing between deemed custody to the mother or to the PGM.

[126] (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 – This again raises the issue of whether the PGM is a statutory parent. This is a balancing consideration for the court. Without being overly simplistic, it pits care of the child by the mother with care of the child by the PGM. The care by the PGM has a track record, has been successful, the child has thrived under it (except for the leukemia which is impossible to ascribe to the PGM’s care), and is what the child wishes to be continued. The mother has no record of care, is not where the child wants to live, and past removal from the mother has not caused the child any harm in over six years. The present case can be compared with the CM case and the WTC case where the children had been with their caregivers for significant continuous periods of time. The courts concluded that the removal from such caregivers would cause the children harm, significant enough to persuade the court that this was sufficient grounds to leave them where they were. While the evidence was not that persuasive in the present case, it was suggestive that harm would accrue to the child X should he be removed from the PGM’s care. I cannot conclude that continued removal from the mother would present a risk that the child might suffer harm. Nor can I definitively conclude that removal from the PGM would either.

[127] (xi) the degree of risk, if any, that justified the finding that the child is in need of protection – The degree of risk that justified a finding in need of protection was certainly high. Both bioparents refused to permit needed medical treatment. They had a history of mutual discord, chronic fighting and arguing, drug use, residential and occupational instability. allegations of physical violence, possibly mutual, lack of visible means to care for a child, and the mother’s minority. That risk has all but disappeared and the need or ongoing protection is based on less serious circumstances. I am not sure what this circumstance means in the context of a status review proceeding, and in particular, what the “degree” of risk that justified a finding in need of protection has to do with the best interest of a child. I do not consider this as all that relevant.

[128] In summary, from applying the relevant best interests of the child circumstances as set out in the CYFSA statute, there is overwhelming reasons to maintain the child in the continued care of the PGM. Conversely, there is little evidence to support a move of the child to the mother.

Other Considerations

[129] There are other considerations that do not readily fall within the list set out in s.74(3) CYFSA. One, already mentioned is a temporal issue. The child is still in his leukemia treatment protocol and will continue to be until August of this year. I do not discount the ability of the medical and hospital communities in Calgary to provide equivalent service to the child X. However, I see a move to Calgary now as a disruption that is unnecessary and would mean the child would need to adjust to new personnel, new hospital, new protocols all of which are already in place and quite familiar to him in Toronto. But why move him now while he is still in treatment? It makes no sense and goes contrary to the principle of avoiding disruption.

[130] In addition, there is the uncomfortable reality that there is a pandemic going on that has real life implications for any child, but particularly one with a possibly compromised immune system. A move to Calgary raises all kinds of implications, not only from a travel and transportation point of view, but also from X living in a different home and a different environment. I was somewhat uncomfortable with the evidence that seemed to suggest that a transition to Calgary was rather routine and has been effected in the past for other relocating patients. I felt that the mother’s evidence was inadequate in terms of what concrete plans would be implemented and what precautions put in place to keep the child safe and healthy in the transition and beyond.

[131] One other consideration that has some relevance is the father’s access. It is unlikely that the father will return to Calgary to exercise access. If the child is placed with the mother, she will want to have nothing to do with him, including supervising his access. He will have to see his son at a supervised access facility. No one has suggested that any such facility exists and is open for business in Calgary, especially during the pandemic. The father wants to have visits with the child and the child reciprocates. While the nature of what that access will be is undetermined, it is still a factor that will have to be dealt with. The father currently has access twice a week, albeit remotely and supervised by the society. It would facilitate the father’s access if the child lived in Ontario.

[132] If the child remained in Ontario, the mother’s access becomes (or remains) problematic. However there is considerable more flexibility than with the father, mainly because she is not seen as being as great a risk to the child as the father. Her ‘in person’ access may be more liberal and not necessarily all supervised. The evidence disclosed but was very vague about a brother of the mother who left Calgary and apparently now resides in Toronto. While his circumstances are not in evidence, presumably he is a family member who can provide some accommodations or transportation for the mother while she exercises in person visits in Toronto.

Summary

[133] While these are perhaps overly lengthy Reasons, they are necessary, more for the mother than for the PGM. It has been said many times that the court’s explanation for its decision is more important to the party that was unsuccessful. In this case, the mother was that party. However, she remains the child’s mother, and a loving mother. The child wants to speak with her, and to see her more often. The accounts of maternal access in the evidence shows that there is a positive relationship between them. The mother has also shown an enormous improvement from the time that she returned to Calgary for good. Moreover, from a global outlook, the mother is clearly making progress. Her setbacks are simply setbacks, but her direction is clearly one of positive progress. If the court can do anything, it is to encourage the mother not to give up hope, but to continue to have visits with her son as frequently and for as long as possible. The pandemic will not last forever and perhaps circumstances will normalize to permit travel to resume. Also, the child’s leukemia will hopefully lead to remission. Now is simply not the time for the child to live with his mother. The court recognizes that the longer the child continues to reside with the PGM, the less likely he will want to change that reality. But children constantly change. They grow older and mature, and some seek out their roots on their own. In the meantime, every child needs his mother, even as an access parent.

[134] I am inclined to make a s.102 order granting custody to the PGM. It is clear that society supervision of this placement is no longer needed. The only protection concern is the presence of the father in the child’s life. While that is currently controlled by the society and by conditions of the supervision order placed on the PGM, these will disappear if a deemed custody order is made. To take the risk that the father poses into account, conditions of access will have to be devised that are not only workable, but effective in the context of a deemed custody order. All three parties as well as OCL counsel for the child should have input into what these access terms should be. I am more inclined to make a paternal custody order than to not make one, even though there is no claim made for one. The paternal access order presented in the society’s plan of care is unsatisfactory. It leaves all paternal access supervised by a Supervised Access Facility, unnamed, and includes telephone access, but does not mention Skype access. Moreover, it has boilerplate terms and conditions that either make no sense or are without much thought to the realities of the present day. It also makes supervision of access mandatory but leaves it open ended. There is an abundance of case law that considers supervision of access as a reasonable measure only for limited durations, not forever. I would like to have better submissions on paternal access from all parties.

[135] With respect to maternal access, the society’s proposal leads the court to question how much thought has gone into its proposed terms for maternal access. It leaves all supervision of access in the discretion of the PGM, then gives the PGM sole right to approve the location of the maternal access. It then provides for minimums of ‘in person’ access periods, unless otherwise mutually agreed by the mother and the PGM, to take place “equitably” either where the PGM resides or the mother resides, with increases from four per year (six day durations) to four per year (two six day and two ten day durations), then fourteen days in the summer and every March and Christmas break without indicating whether these are in addition to the four visits per year or instead of them. Of concern to the court are whether these provisions are realistic for the mother or the PGM, whether they entail absences from the child’s classes, and whether they fail to include certainty as to when and where they are to occur, and what responsibility will fall on whom to pick up and return the child. Additionally, there are no provisions for the child to contact the PGM when he is on a maternal access visit. Nor is there any provision for paternal access while the child may be on a maternal access visit. I have not heard what other parties or the child thinks about the society’s access proposals. I received few if any submissions.

[136] I thank the parties for their efforts in presenting their evidence and in their able submissions. I look forward to submissions on parental (or child) access. I will be happy to discuss with them how such submissions are to be presented. Of course, should the parties arrive at consensual access terms, I would be happy to consider them.

Released: May 27, 2021

Signed: “Justice John Kukurin”

[^1]: The CFSA (Child and Family Services Act) was repealed and replaced by the CYFSA (Child, Youth and Family Services Act) effective April 30, 2018. The findings in the child protection case were made on February 28, 2018 and were under the CFSA as set out below.

S.37(2)(b)(i) - there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child. [Now s.74(2)(b)(i) Child, Youth and Family Services Act (the CYFSA)

S.37(2)(e) - the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment. [Now s.74(2)(e) CYFSA]

[^2]: CFSA S.53 (1) Where the court makes an order under this Part, the court shall give,

(a) a statement of any terms or conditions imposed on the order;

(b) a statement of every plan for the child’s care proposed to the court;

(d) reasons for its decision, including,

(i) a brief statement of the evidence on which the court bases its decision, and

(ii) where the order has the effect of removing or keeping the child from the care of the person who had charge of the child immediately before intervention under this Part, a statement of the reasons why the child cannot be adequately protected while in the person’s care.

S.97 of the CYFSA is unchanged from the above

[^3]: The facts in the child protection application were not on oath as the application is only a pleading. However, these facts were repeated and elaborated in the five affidavits of the society in the child protection proceeding. For purposes of this decision, the facts in the child protection application are superfluous and therefore I disregard them.

[^4]: An issue arose in the course of the trial about the evidence filed in the previous child protection proceeding. The society sought to file, in the present status review proceeding, the five affidavits, the factual contents of which had comprised the basis for the finding in need of protection. I gave a decision on the admission of those affidavits and whether the status review court is entitled to resort to those affidavits to determine what facts were contained therein that might form a basis for a finding in need of protection.

See: Children’s Aid Society of Algoma v F.M. 2021 ONCJ 183

[^5]: The view that a status review also includes a review of whatever access order is in existence is supported by s.114(a) CYFSA which empowers the court to not only vary or terminate the original protection order made under s.101(1) but also any “term or condition or provision for access that is part of that order”

[^6]: Catholic Children's Aid Society of Metropolitan Toronto v. C.M. [1994] S.C.J. No. 37, [1994] A.C.S. No 37, [1994] 2 S.C.R. 165, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, 1994 CanLII 83, 1994 CarswellOnt 376, 47 A.C.W.S. (3d) 557

[^7]: Catholic Children's Aid Society of Metro Toronto v. M. (C.) 1993 CanLII 8484 (ON CA), [1993] O.J. No. 970, 13 O.R. (3d) 227, 101 D.L.R. (4th) 766, 47 R.F.L. (3d) 109, 39 A.C.W.S. (3d) 1148 (Ont Court of Appeal)

[^8]: Children's Aid Society of Oxford County v. W.T.C. [2013] O.J. No. 3438, 2013 ONCA 491, 288 C.R.R. (2d) 144, 308 O.A.C. 246, 33 R.F.L. (7th) 259, 2013 CarswellOnt 10258

[^9]: Children’s Aid Society of Hamilton v. J.M. [2017] O.J. No. 5126, 2017 ONSC 5869 (Chappel Ont SCJ)

[^10]: Catholic Children's Aid Society of Toronto v. A.P. [2020] O.J. No. 5312, 2020 ONCJ 572 (Sherr Ont CJ)

[^11]: Children's Aid Society of Toronto v. S.A.P. [2019] O.J. No. 3005, 2019 ONSC 3482 (Shore Ont SCJ)

[^12]: Children's Aid Society of Toronto v. T.H. [2009] O.J. No. 6385, 2009 ONCJ 282 (P. Jones Ont CJ)

[^13]: The order dated June 24, 2015 states that it was made “pursuant to s. 37(1) of the Child and Family Services Act””. With all respect, that subsection does not authorize the making of what I take to be a declaratory order. Moreover, and despite its wording (i.e. declaration of non-paternity as opposed to declaration of paternity), it was clearly meant to remove the father in this status review proceeding as the “parent” in the child protection proceeding. Paragraph 2 of the same order does that very thing. In fact, s.13 of the Children’s Law Reform Act (CLRA) as it was at the time, provided authority for making a declaratory order of this kind.

S. 13(3) If the court finds on the balance of probabilities that a person is or is not a parent of a child, the court may make a declaration to that effect. 2016, c. 23, s. 1 (1).

However, this power was reserved under s.1 of the then CLRA to the “Family Court or the Superior Court of Justice”. It was not a declaration that could be made by the Ontario Court of Justice.

[^14]: The mother indicated at trial that she discovered that the Adult Addictions Services had re-opened the week of January 27, 2021 and was accepting appointments. However, despite the opportunity to update her trial affidavit, she made no mention of following up with this service.

[^15]: The PCA ordered under s.98 of the CYFSA is statutorily stated to be evidence in the proceeding in which it was ordered.

S.98 (12) The report of an assessment ordered under subsection (1) is evidence and is part of the court record of the proceeding.

[^16]: Much of the information relating to maternal access derives from written Reasons of Justice J.P. Condon released October 2, 2017 relating to motions of the Algoma society, the mother and the paternal grandmother (PGM) heard June 29 and 30, 2017 all seeking to vary the then existing order dated June 25, 2015 that had placed the child X in the temporary care and custody of the PGM. Reasons filed at Tab 2(6) of Society Document Brief (pages 11- 41).

[^17]: The trial affidavit of Kim Bauer sworn Jan 18, 2021 (Trial Exhibit 4) states at paragraph [93]

“… although the mother had Skype access available to her, she had not taken advantage of the access and had only had two Skype calls with the child in the previous four months”

[^18]: The paternal grandmother indicates in her trial affidavit (Exhibit 16) sworn Dec 18, 2020 at paragraph 64:

“ … the mother initially made the Skype calls regularly, but then the calls were occurring less and less. There was a nine month period where the mother did not make any calls at all prior to this order [the order permitting Skype calls] being made.

[^19]: The Algoma society brought a motion in the prior child protection proceeding for variation of temporary care and custody of X from his paternal grandmother (in Toronto) to his maternal grandmother (in Calgary). This was opposed by a cross motion of the paternal grandmother. Ultimately the society’s motion was dismissed. As a prelude to its motion, the Algoma society asked its counterpart in Calgary to do a kin assessment of the maternal grandmother. The Calgary response, as documented in Justice Condon’s Reasons for his decision on this motion (at paragraph 89) was

“ … protection agencies in that province cannot do kinship assessments for children who are not in the care of child protection agencies in Alberta. Instead Alberta Child Welfare was prepared to complete an Environmental Safety Assessment of the maternal grandmother’s home.”

[^20]: The best interests of the child requires consideration of a number of listed circumstances that are delineated in s.74(3) CYFSA. This section provides

S.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

(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.

[^21]: Or from a domestic agreement

Children’s Aid Society of Algoma v. F.M., 2021 ONCJ 393

Case Summary

KUKURIN J.:

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 5