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,
( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(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
DATE: 2022 07 04 COURT FILE No.: Windsor, Ontario 400/17-0003
BETWEEN:
M.U.P. Applicant,
— AND —
Windsor-Essex Children’s Aid Society Respondent
— AND —
S.M.G. Respondent
Before: Justice M. Vickerd
Heard on: April 8, 2022 Reasons for Judgment released on: July 4, 2022
Counsel: A. Chernish.................................................................................... Counsel for the Applicant N. Peart..................................................................... Counsel for the Respondent Society R. Robinet............................................................................... Counsel for the Respondent D.Sandor.............................................. Counsel for the Office of the Children’s Lawyer, legal representative for the child
VICKERD J.:
Overview
[1] The Applicant mother has advanced a Status Review Application. By Motion, she seeks a final order placing the child into her care, jointly with the Respondent father for a period of six months, subject to the supervision of the Windsor-Essex Children’s Aid Society (the “W.E.C.A.S.” or the “Society”) on terms and conditions set out in the Motion.
[2] Her claims are supported by all other parties to the litigation.
[3] In support of her Motion, the Applicant mother has filed a Statement of Agreed Facts, dated March 31, 2022, executed by all other parties to this proceeding.
[4] The Applicant’s Motion was addressed using Zoom on April 8, 2022.
[5] At the argument of the Motion, I questioned counsel about the application of s.115(5) of the Child, Youth and Family Services Act, 2017 (the “C.Y.F.S.A.”).
[6] After the argument of the Motion on April 8, 2022, I received a 14B Motion dated April 12, 2022, by which the Applicant seeks an order pursuant to s. 115(5) of the C.Y.F.S.A. effective the date that the Application was issued, nunc pro tunc, granting the Applicant leave to advance a Status Review Application pursuant to s. 115(4) of the Act.
[7] I shall consider both Motions together.
[8] At the Motion argument, I reserved my decision. I requested that counsel provide any case law upon which they rely, to be filed with the Trial Coordinator.
[9] In summary, I have received and reviewed the following documents:
- Applicant’s 14B Motion Form dated March 31, 2022
- Statement of Agreed Facts dated March 31, 2022
- Applicant’s 14B Motion dated April12, 2022
- Applicant’s Affidavit sworn April 12, 2022
- Affidavit of R. Graham sworn April 11, 2022
- Applicant’s Book of Authorities
Background
[10] The subject child of this Status Review Application is A.P. born […], 2009. A.P. was diagnosed with non-verbal Autism.
[11] A.P. has been in the care of the Windsor-Essex Children’s Aid Society since September 21, 2017. The child is presently cared for at “Little House” a residential care group treatment home. He has been placed in this home since 2018.
[12] The Applicant M.P. is the child’s mother.
[13] The Respondent S.G. has been found to be a “parent” to the child by order of Justice S.J. Fuerth on October 16, 2019.
[14] The statutory findings required under section 90(2) were made for the child by Justice Tobin on January 29, 2018. Notably, the child is not a First Nations, Inuit or Métis child.
[15] A.P. has two younger siblings: S.E.G. born […], 2018 and O.G. born […], 2021.
[16] S.E.G. was placed into the care of his paternal grandparents. A final order confirming that placement was made by this court on December 12, 2019. The Applicant mother exercises weekly access visits with him.
[17] O.G. has remained in the care of the Applicant mother and the Respondent father since her birth. The Society and the parents have entered into a Voluntary Services Agreement regarding her care.
[18] A.P. came into the care of the WECAS on September 21, 2017. The following is a summary of the child protection litigation concerning his care:
- A.P. was removed from the care of his mother on September 21, 2017.
- The W.E.C.A.S. commenced a child protection Application dated September 25, 2017.
- The Application was resolved with the final Order of Justice Tobin dated January 29, 2018. That order as made based upon a Statement of Agreed Facts. Justice Tobin made a finding that A.P. is a child in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Services Act. A.P. was placed into the temporary care and custody of the W.E.C.A.S. for a period of six months with access to his mother.
- A Status Review Application was issued dated June 29, 2018. That Application was resolved with the Order of Justice L.S. Ross dated April 4, 2019. Justice Ross’ order was made based upon a Statement of Agreed Facts. Justice Ross made a finding that the child continued to be in need of protection pursuant to s. 74(2)(b)(i) of the C.Y.F.S.A. The child was placed into the care of his mother.
- A second status review Application was issued in July 2019. It was amended in October 2019. That Application was resolved with a final order made by this court on December 12, 2019. The Order was made based upon a Statement of Agreed Facts. A finding was made that the child continued to be in need of protection pursuant to s. 74(2)(b)(i). The child was placed into the Extended Care of the W.E.C.A.S., with access to his parents and siblings. The same order provided for access between A.P., his parents and his siblings.
Issues
[19] The following are the issues to be determined:
- Should the court exercise its discretion under subsection 115(5) and grant the Applicant leave to advance her Status Review Application?
- If leave is granted to the Applicant to advance her Motion, can a finding be made on the evidence that the child continues to be in need of protection?
- If the child is found to be in need of protection what is the appropriate order to be made regarding his care?
Analysis
Should leave be granted to the Applicant to advance her Status Review Application?
[20] The Act prescribes at s. 115 who may bring an application for review the status of a child placed in the extended care of the Society.
[21] A parent of a child is authorized pursuant to subsection 115(4) to advance a status review application on notice to the Society.
[22] However, where a child has received continuous care for at least two years from the same foster parent, subsection 115(5) requires a parent to seek leave of the court before commencing a status review application pursuant to subsection 115. There are no statutory guidelines provided in the legislation for the court to consider when granting leave to a parent under this section.
[23] In the absence of any statutory guidance, Justice Bean, in Catholic Children's Aid Society of Metropolitan Toronto v. F.(B.A.), deciding this issue under predecessor legislation, the Child and Family Services Act, section 65.1(5), proposed the following principles to guide a court when deciding whether leave should be granted. They are as follows:
- The status review application for which permission is sought must be made in good faith, that is, not for some ulterior motive.
- Leave ought not to be granted if the relief sought can be obtained practically otherwise than by reviewing the whole Order itself.
- There must be some unusual circumstances that justify the review in spite of the child's permanent status as a Crown ward and despite the child's permanent living situation that is, living continuously with the same foster parents for at least two years.
- The applicant must establish and the judge must be satisfied that a status review application at this time would likely accomplish the purposes of the Act as set forth in section 1; and
- The applicant must establish a prima facie case, that is, if leave were granted a hearing would probably result in the relief sought by the applicant.
[24] In Durham Children's Aid Society v. J-AS the Court considered the principles set out in Catholic Children's Aid of Metropolitan Toronto v. F. (B.A.) and appeared to place emphasis to the fourth principal -- meeting the purposes of the Act:
...I think that it is sufficient to say that any party making an application for a review of a Crown Wardship order, which does not lie as of right, must satisfy the court, on the balance of probabilities, that such review would meet "the paramount" and "other purposes" definitions found in section 1 of the CFSA. Best interests are included therein.
[25] The fifth principle referred to by Justice Bean, that there must be a prima facie case before leave is granted was considered by Justice Thibideau in Children's Aid Society of Haldamind and Norfolk v. J.A.M.-F. 2011 ONCJ 53, where he concluded:
Has the moving parent placed before the court... apparently credible and weighty evidence that is sufficient to warrant holding a hearing on the merits? Is the evidence sufficient to demonstrate that there is reasonable prospect of success? However, this test would apply to all of the evidence and all of the circumstances of the parent and the children before the court at the time leave is requested to be given. Once again, context is everything, it is not sufficient that the context be restricted to the facts and circumstances related only to the parent. It is required that the evidence take into account the facts and circumstances of the parent and the children who are the subject of the application. Justice Spence, in S.R. v. Catholic Children's Aid Society of Toronto 2011 ONCJ 11 held with respect to the fifth principle that the court should not allow a status review application to proceed unless the moving party is able to establish, "a meritorious case for relief".
[26] Justice Tobin in GR v Windsor-Essex Children's Aid Society, [2017] OJ No 2233, 2017 ONCJ 285 points out that the five principles are of assistance but do not constrain the court’s discretion to make a child-focused analysis giving effect to the purposes of the legislation:
A consideration of the five principles provides a helpful guide for conducting a contextual analysis of whether leave should be granted. At the same time the court's discretion should not be constrained by a requirement that all five principles must be met by a moving party or that other compelling considerations should not be taken into account: Children's Aid Society of Toronto v. S.C. v. I.K. 2017 ONCJ 240. The analysis engaged must be a child focused one that gives effect to the paramount and other purposes of the Act.
[27] Justice Sherr in The Children's Aid Society of Toronto v. S.C., 2017 ONCJ 240 surveys the case law and confirms that the five criteria are “helpful guidelines” but they do not fetter a court’s discretion to conduct a full contextual analysis:
Other cases have held that while the five criteria are helpful guidelines, the court's discretion is not fettered by holding that the moving party must satisfy the court on all five criteria, or that no other considerations can apply when determining whether to grant leave to bring a status review application. See: S.R. v. Catholic Children's Aid Society of Toronto, 2011 ONCJ 11, per Justice Robert Spence; Children's Aid Society of Brant v. A.C., 2015 ONCJ 436, per Justice Kathleen Baker.
The court will follow the latter line of cases. In the absence of statutory authority, the court should not be fettered from conducting a full contextual analysis in determining whether leave should be granted to bring a status review application. For instance, a case may not have unusual circumstances, but may have significant merit. It would not be a child-focused approach to deny leave in such circumstances.
Children's Aid Society of Toronto v SC, [2017] OJ No 1762, 2017 ONCJ 240
[28] Justice Spence in Children's Aid Society of Toronto v IL, [2018] OJ No 895, 2018 ONCJ 113 adopted the flexible approach advanced by Justice Sherr, writing that:
This court prefers the line of cases which focuses more on the flexible approach, rather than the requirement that the moving party satisfy all five criteria as first propounded in Catholic Children's Aid Society of Metro Toronto v. F.(B.A.), supra.
[29] I shall apply the test set out in the case law to the case here.
The status review application for which permission is sought must be made in good faith, that is, not for some ulterior motive.
[30] The evidence is uncontested that the Applicant mother seeks to advance her Status Review Application in good faith. Her request to resume care of A.P. is supported by the Society and child’s counsel. The parties appear to sincerely believe that the mother’s plan to resume care of A.P. is in his best interests.
[31] A.P. has been in the continuous care of the W.E.C.A.S. since September 21, 2017 without any permanent placement confirmed. The mother’s request to review the current care order shall not impede any pending adoption or imperil his current placement.
Leave ought not to be granted if the relief sought can be obtained practically otherwise than by reviewing the whole Order itself.
[32] There is no alternate option to advance the mother’s plan for care of A. P. other than a review of the entire order. A Status Review Application is the only mechanism by which the Applicant mother could resume care of A. P.
There must be some unusual circumstances that justify the review in spite of the child's permanent status as a Crown ward and despite the child's permanent living situation that is, living continuously with the same foster parents for at least two years.
[33] There are unusual circumstances which justify the review proposed by the mother. The child has been in continuous care of the Society since September 21, 2017, without any permanent plan for his care. There are no prospective homes or permanent placement options identified for the child. The child is presently cared for at “Little House” a residential care group treatment home. He has been placed in this home since 2018. The Society worker confirms this placement was made as there were no traditional foster homes that could meet his identified needs. The child has special needs arising from his non-verbal autism which impede options for permanency planning. To date, he has not been a candidate for adoption and has not had an opportunity for permanence in a family unit.
[34] It is unusual that a child who has been in the care of the child protection agency since September 21, 2017 has no opportunities available to him for permanent placement in a family unit.
The Applicant must establish, and the judge must be satisfied that a status review application at this time would likely accomplish the purposes of the Act as set forth in section 1.
[35] To address this criterion, the court must consider the paramount purpose of the legislation, being the best interests protection and well-being of the child (section 1(1) of the Act). Also, the court must consider the secondary purposes of: maintaining the integrity of the family unit, assisting families in caring for children and recognizing the least disruptive action consistent with the best interests of children (section 1(2) of the Act. The most important secondary purpose of the legislation which applies in this case is found at subsections 1(2) 3(i) through (vi). which provide:
Services to children and young persons should be provided in a manner that,
i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons, iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, iv. takes into account a child’s or young person’s cultural and linguistic needs, v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.
[36] I am concerned that a long-term placement in a residential group treatment home may not be in A.P.’s best interests. I have no details about the current services that are being provided to the child and whether such services may be available to him while in the care of a family. I am concerned that the child’s special needs provide motive for the Society to place him in an institutional foster home rather than a family placement.
[37] On this point, I have also considered the UN Convention on the Rights of the Child. The conception of a “best interests” analysis is consistent with the international instrument to which Canada is a signatory: The Convention on the Rights of the Child, Can. T.S. 1992 No. 3, which Canada signed on May 28, 1990 and ratified on December 13, 1991. This Convention describes "the best interests of the child" as a primary consideration in all actions concerning children (Article 3). It then sets out a framework under which the child's own input will inform the content of the "best interests" standard, with the weight accorded to these views increasing in relation to the child's developing maturity. The decision of the Ontario Court of Appeal in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (leave to appeal to the SCC refused) confirms the importance of using the Rights of the Child Convention generally. The Court emphasized that because of children’s vulnerability, courts have a duty to recognize, advance and protect their interests, holding that:
- The Rights of the Child Convention “requires that children be afforded special safeguards, care and legal protection by the courts on all matters involving their best interests, including privacy”: para. 51, and
- “Children are among the most vulnerable members of society. Courts, administrative authorities and legislative bodies have a duty to recognize, advance and protect their interests. When children are the subject of a custody dispute or child protection proceedings, they are at their most vulnerable”: para. 64.
- At paragraph 74, the Court recognizes that the preamble to the Rights of the Child Convention directs that special safeguards and care, including legal protection, be afforded to children. The preamble states:
Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”
[38] The Convention applies to child protection cases. See: Preamble to the CYFSA; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at paras 92-93; Family and Children’s Services of Guelph and Wellington County v. A.M.P. and K.D.S., 2020 ONSC 7418; Children’s Aid Society of Toronto v. C.J.W., 2017 ONCJ 341.
[39] Specifically, Article 23 of the Convention is particularly relevant to this case. It provides:
States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.
States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.
Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development
[40] I question whether the child’s present placement provides him with an ability to enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community. I do not have enough evidence to assess this concern fully, but it necessitates further investigation and lends to the court’s exercise of its discretion in favour of granting leave to the Applicant.
[41] Granting leave to the Applicant mother to advance her Status Review Application will give effect to the purposes of the children protection legislation and to the child’s rights under the Rights of the Child Convention. The child’s current circumstances, placement in a group foster home, bear further assessment when his mother is presenting a bona fide plan to resume care of him.
The Applicant must establish a prima facie case, that is, if leave were granted a hearing would probably result in the relief sought by the Applicant.
[42] The prima facie case has been established by the Applicant. All parties consent to the order which she seeks. All agree that the mother’s plan is in the best interests of the child. This plan is also supported by the child’s counsel.
[43] The parents’ have established progress in their parenting skills, maintained abstinence from illicit drug use and refrained from adult conflict such that their youngest child, O.G., has been supported in their care since her birth under a Voluntary Services Contract. Their progress assists a finding that there has been a material change in that the mother and father have made good faith efforts to become better parents and wish to have A.P. returned to their family.
[44] On the facts presented, I can conclude that there is a prima facie case and that the Applicant may be successful in obtaining the order she seeks.
Court’s Discretion
[45] As confirmed above, I find that that Applicant mother has met all five criteria identified in the case law. Even if she had not, I would exercise my discretion in favour of her claim as there are real and substantive issues to be determined regarding the child’s long-term care.
Status Review
[46] The Act allows at s. 115 an application for review the status of a child placed in the extended care of the Society.
[47] In C.A.S. v. M.W. and M.S, 2020 ONSC 1847, Justice Madsen summarize the law on status review applications and the treatment of agreed statement of facts as follows:
- On a status review, the task of the court is to assess what, if anything, has changed since the making of the prior final order. A status review hearing is not a re-hearing of the original protection application: see para. 51.
- A consent order that ends an action is of the same effect as a judgment of a court following a trial or hearing, for the purpose of the doctrine of res judicata: see para. 52.
- Prior court orders, reasons for decision, and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders: see para. 53.
- Section 114 of the CYFSA provides that where an application is made for review of a child’s status 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; c. make a further order or orders under section 101; or d. make an order under section 102: see para. 73.
- The test on a status review application is as follows: a. the original order is presumed to be correct. This is not a rehearing of the previous order that was made; b. the court must first determine whether the child continues to be in need of protection and whether, as a consequence, the child requires a court order for his or her protection; c. the court must consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then; and d. secondly, the court must consider the best interests of the child. This analysis must be conducted from the child’s perspective: see para. 74.
[48] The examination to be undertaken involves two-stages, as confirmed by the Ontario Court of Appeal in Children’s Aid Society of Oxford v. W.T.C. 2013 ONCA 491:
a. First, determine whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection; b. If it has been determined that the child is still in need of protection, the court must determine which of the available range of orders is in the best interests of the child.
[49] In determining what order is required to meet the child’s best interests, the court must consider the degree to which the risk concerns that prompted the original order still exist. This must be examined from the child's perspective. 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." (Catholic Children's Aid Society of Toronto v. M. (C.), (1994), 2 S.C.R. 165 (S.C.C.).
Does the child continue to be in need of protection?
[50] The parties agree that the child continues to be in need of protection pursuant to s. 74(2)(b)(i) of the Child, Youth and Family Services Act, 2017, and specifically:
There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of him or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child.
[51] In support of this finding, the parties have agreed upon the following facts:
- There is a significant history of domestic violence and substance use by the parents which resulted in A. being taken into care of the W.E.C.A.S.
- In September 2017, A.P. witnessed a physical assault by SG. against M.P. that caused the child significant emotional upset and anxiety.
- In Spring 2021 there were “incidents of relationship instability” between the parents. There were periods of time when the parents “terminated their relationship as a result of this conflict;”
- On July 6, 2020, the mother’s diagnosis of depression, anxiety and substance use disorder was confirmed, and she received a prognosis confirming her as a high risk for ongoing difficulties and relapse.
[52] Prior findings were made that the child is in need of protection on January 29, 2018, April 4, 2019 and December 12, 2019.
[53] In Children's Aid Society of Toronto v. G.P., 2019 ONCJ 365, Zisman J. lays out the following applicable legal principles with respect to a finding of need of protection at paras. 71-75:
- The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm.
- The risk of harm must be real and likely and not speculative.
- Harm caused by neglect or error in judgment can come within a finding of risk of physical harm.
- With respect to the timing of the protection finding, I adopt the analysis of Justice Czutrin in the case of Children's Aid Society of Hamilton-Wentworth v. R. (K.) (footnote omitted), wherein he states:
- the court should be free to consider whether the child is in need of protection at the commencement of the proceeding or at the hearing date, or for that matter some other date depending on the circumstances. There cannot be an absolute rule as to the relevant date.
[54] The facts as presented by the parties support a finding that the child A.P. continues to be a child in need of protection. I find that he is at risk of harm due to the history of the child protection concerns and the parents’ relatively recent continued struggles with adult conflict and illicit drug use. Therefore, an order shall issue as requested.
What is the appropriate order to be made regarding the child’s care?
[55] Having found that the child continues to be in need of protection, I must next consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then. Then, I must undertake an analysis of the best interests of the child.
[56] In making my assessment the risks which formed the basis for the original findings, I have reviewed the current Statement of Agreed Facts executed by all the parties and the historic Statements of Agreed Facts. The relevant facts to the current findings are as follows:
a. The mother’s past drug use included abuse of marijuana, cocaine and crack cocaine. b. On August 11, 2017, A.P. witnessed an incident of physical conflict between the parents, criminal charges were laid against the Respondent S.G. The mother suffered injuries as a result of the incident. c. Prior to the child’s removal from the mother’s care, the child’s school board was pursuing charges against the mother for truancy as the child missed 86.5 days and was late 43 times from September 6, 2016 to June 16, 2017. d. The mother was diagnosed with depression, anxiety and Attention Deficit Disorder. For a period, she was not taking her prescribed medications nor attending with her doctor on a regular basis. e. During the criminal court restrictions, the mother breached terms of that order relating to the Respondent S.G. He was noted to be at the home of the mother on occasions that were not pre-approved by the Society. The Respondent S.G. was charged with breach of his Bail Order in February 2018. On April 12, 2018 he was convicted of assault and placed on probation for one year. f. When the child S.E.G. was born, both the child and mother tested positive for cocaine. The mother denied using cocaine during her pregnancy but admitted to using marijuana. g. On January 30, 2019 the police attended at the mother’s home due to a report from the mother’s neighbour of a domestic disturbance between the parents. Both parents admitted to relapsing and the continued use of illicit substances, notably cocaine. The child A.P. was present at the time.
[57] The current Agreed Statement of Facts is lacking in detail and does not provide the court with a sufficient basis to address the current degree of risk to the child. For example, I have the following concerns:
a. Paragraph 60 refers to “incidents of relationship instability.” There are no details provided. This statement is so general as to be of little value. Was there physical conflict between the parties? Were there criminal charges? Was police intervention required? Was the child O.G. present at the time of the conflict? How do these incidents accord with the outstanding Voluntary Services Contract between the parents and the Society relating to the child O? b. Paragraph 6(p) refers to a diagnosis received by the mother in July 2020 and the prognosis made that she is at high risk for ongoing difficulties and relapse. There are no details about who made the diagnosis and prognosis and whether there has been follow up care. The court is without current information about the mother’s mental health and substance misuse. c. At paragraph 6(t) it is attested that the Respondent mother has maintained her sobriety since the end of March 2021. How is this fact confirmed? d. At paragraph 6(y) it states that the Respondent S.G. has maintained his sobriety since September 2020. How is this fact confirmed? e. At paragraph 6(cc) it is stated that the Respondent S.G. has completed the Partner Assault Response Program to address the history of domestic violence between the parents. The timeline for his participation and completion of that program is not identified. This is especially relevant considering that the serious history of criminal charges incurred by the Respondent father and fairly recent conflict between the parties which led to prior separations.
[58] Any plan for the child’s care must be confirmed to be in his best interest. Assessment of the plan advanced must be undertaken from a child focused perspective. Paragraph 6, page 16 of the Statement of Agreed Facts addresses the child’s best interests. The facts presented are lacking and I am left with the following questions:
a. A.P. has special needs associated with his diagnosis of non-verbal autism. As noted in the Statement of Agreed Facts, he has special needs, challenges and “additional considerations.” These challenges are not detailed other than a statement that he has difficulties with transitions, changes in routine and separation from his mother. The court would benefit from a more fulsome assessment of the child’s challenges and how they are presently being met and how they will be met in the care of the mother. b. There is no evidence about the child’s present educational program. There is no evidence about whether any specialized individual education program will be available to the child in the transitions to the parents’ care. c. There is no evidence about services that the child receives to support his special needs and whether said services will continue if he is placed with his mother. d. The child’s residential group treatment home appears to be managed from Smithville, while the parents’ home is in Windsor. How disruptive will a change in care be for the child’s stability with a change of community, school and caregivers? Will these changes have an adverse impact on the child’s progress and does his autism diagnosis make him more vulnerable to such disruption? e. Are there treatments or services that the child presently receives that will change upon a transition to the care of the parents? f. Is there funding or services which the child presently receives to meet his needs while in the Extended Care of the Society that he will lose upon a transition to the care of the parents? Is there alternate funding or comparative services available to the parents to care for the child? g. There is no evidence about the state of the child’s access with his sibling S.E.G. who resides in the care of grandparents. There is no information about how access between the child and SE.G. will be facilitated if he is transitioned to his mother’s care. h. There is no information about whether the Respondent parents need to engage in services designed to support them in addressing the child’s special needs. i. There is evidence advanced that the child is very attached to his mother and maintains a continuous, consistent and strong desire to return to her care full-time. The child is thirteen (13) years of age. There is no evidence about whether the child’s developmental challenges impact his understanding of the plan for his care; j. The current Statement of Agreed Fact states that the access visits between the child and the Respondent mother continues to be positive and that the mother ensures that the child’s needs are met during his access. The document makes no reference to the quality of the access between the child and the Respondent S.G.
Given the gaps in evidence, I cannot vary the child’s care at this time. To accord with the purposes of the legislation, I order that this matter shall be set for an expedited hearing to allow the parties the opportunity to present better evidence supporting the mother’s plan.
Order
[59] Based upon the foregoing the following order is made:
a. Pursuant to subsection 115(5) of the Child, Youth and Family Services Act, 2017, leave is granted to the Applicant M.P. to advance her Status Review Application issued August 24, 2021; b. A finding is made that the child continues to be in need of protection pursuant to s. 74(2)(b)(i) of the Child, Youth and Family Services Act, 2017. c. The issue of disposition of care of the child pursuant to section 116 shall be addressed at hearing at which the parties can provide the court with supplemental evidence. This hearing shall occur on an expedited basis; d. Parties and counsel shall attend in my court on July 21, 2022 at 10:00am. by Zoom for the purpose of fixing the date(s) for the expedited hearing and addressing any procedural matters to facilitate the hearing.
Released: July 4, 2022 Signed: Justice M Vickerd
