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
CITATION: Children’s Aid Society of Toronto v. I.L., 2023 ONCJ 213
DATE: 2023 1 20
COURT FILE No.: C41508/21
BETWEEN:
CHILDREN’S AID SOCIETY OF TORONTO
Applicant,
— AND —
I.L.
Respondent
-AND-
S.M.
Respondent
Before Justice Melanie Sager
Heard on January 9, 10, 11, 12 and 13, 2023
Reasons for Judgment released on January 20, 2023
Julia O’Byrne................................................................... counsel for the applicant society
I.L.................................................................................................................. on her own behalf
Arthur Brown................................................................................... for the respondent S.M.
Katharina Janczaruk..................................................................................... amicus counsel
Sager, J.:
I. Introduction
[1] The Children’s Aid Society of Toronto (the society) has brought an Amended Protection Application seeking a finding that the children, H. who is 7 years of age and Z., who is 4 years of age, are at risk of physical and emotional harm and, are in need of protection pursuant to clauses 74(2)(b)(i) and 74(2)(h) of the Child, Youth and Family Services Act (the Act). The society says the children continue to be in need of protection and seeks a final dispositional order placing the children in the care and custody of their father, S.M., subject to the supervision of the society for a period of 6 months with access by the mother, I.L. at the discretion of the society including a minimum of once per week virtually and once per month in person.
[2] The children have lived with the father in Petawawa, Ontario since April 17, 2021, first with the mother’s consent and then pursuant to a temporary supervision order dated November 26, 2021.
[3] The mother acknowledges that the children were in need of protection when the society intervened due to her being hospitalized. She denies that the children continue to in need of protection and seeks the return of the children to her care.
[4] The father’s position is that the children were in need of protection when the society intervened and, continue to be in need of protection due to the mother’s untreated mental heath issues. He seeks an order granting him sole custody of the children pursuant to section 102 of the Act. He asks the court to order the mother’s access to the children to be virtual twice per week and supervised in person access at a supervised access centre located in Renfrew County. The frequency of in person access will be as arranged and agreed upon between the parents.
[5] The trial was heard over five days. The court heard evidence from six workers from three different children’s aid societies, a police officer who attended to the mother and the children on April 12, 2021 when the parties agree the children were in need of protection, both parents and the paternal grandmother with whom the father and the children reside.
[6] The issues for the court to determine are as follows:
(a) Are the children First Nation, Inuk or Métis children?
(b) Are the children in need of protection?
(c) Is intervention through a court order necessary to protect the children in the future?
(d) If a court order is necessary to protect the children in the future, what dispositional order is in their best interests?
(e) If the court places the children with the father pursuant to a supervision order, what terms should be ordered and what should be the length of the order?
(f) If the children are placed with the father, either pursuant to a supervision order, or a section 102 custody order, what access order between the mother and the children is in the children’s best interests?
II. Background Facts
[7] The mother is 37 years of age. She and the father, who is 32 years of age, were involved in a relationship for approximately 8 years from 2011 to 2019. H. and Z. are the only children of both parties.
[8] After the parties separated, the children were in the primary care of the mother. They lived in Toronto. The father lived in Toronto until January 2021 when he moved to Petawawa, Ontario where he continues to reside with his mother, step-father and brother.
[9] After the father moved to Petawawa, he travelled to Toronto approximately once per month to see the children. He stayed with friends and visited the children during the day in the mother’s home.
[10] The mother has worked various jobs, most recently as a personal grocery shopper providing delivery service.
[11] The father is a full time caregiver to the parties’ two children, both who have been diagnosed with autism.
[12] On April 12, 2021, after driving around southern Ontario with the two children in the backseat of her car for approximately 24 hours, the mother called police from a gas station and reported that she needed help. The police officer who met the mother at the gas station was advised by dispatch that the mother said if she did not receive help, she would kill herself and her children. The mother acknowledges calling the police for help as she was “stressed out” and wanted to “get away from everyone”. She said she “went to a few hotels because of safety concerns no one cares about” and could not secure a hotel room as she did not have a credit card. She says that she called the police and said, “you would want to hear me say I will kill myself and my children but I’m not going to say that.”
[13] The mother said she understands that what she said when she called the police was concerning and why she had to go to hospital and her children had to be brought to a place of safety.
[14] The officer witnessed the children sleeping in the backseat of the mother’s car. She had no cause to open the backdoor to see the children close up. The officer spoke to the mother who was calm and cooperative but who appeared dishevelled and said she had not slept or showered in over 24 hours. The police officer said that the mother was speaking very quickly and told her that her father, brother and ex boyfriend were trying to kill her. The officer decided she had grounds to bring the mother to the hospital pursuant to section 17 of the Mental Health Act. Section 17 provides,
Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;
(e) serious bodily harm to another person; or
(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.
[15] The mother agreed to go to the hospital with the police officer. While at the hospital the officer described the mother as agitated and overly suspicious and paranoid about her family and ex boyfriend. The officer also said she reviewed the threats the mother made to the dispatcher to harm herself and her children and the mother told her she did not intend to harm herself or her children and what she said was her way of getting help.
[16] The mother was kept in hospital under the Form 1 (Application by physician for psychiatric assessment) under the Mental Health Act. Subsection 15(1) of the Mental Health Act provides that
Where a physician examines a person and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
(c) has shown or is showing a lack of competence to care for himself or herself,
and if in addition the physician is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;
(e) serious bodily harm to another person; or
(f) serious physical impairment of the person,
the physician may make application in the prescribed form for a psychiatric assessment of the person.
[17] The mother’s hospital stay was extended when a Form 3 (certificate of involuntary admission) was executed by the treating physician. Subsection 20(1) of the Mental Health Act provides that,
The attending physician, after observing and examining a person who is the subject of an application for assessment under section 15 or who is the subject of an order under section 32,
(a) shall release the person from the psychiatric facility if the attending physician is of the opinion that the person is not in need of the treatment provided in a psychiatric facility;
(b) shall admit the person as an informal or voluntary patient if the attending physician is of the opinion that the person is suffering from mental disorder of such a nature or quality that the person is in need of the treatment provided in a psychiatric facility and is suitable for admission as an informal or voluntary patient; or
(c) shall admit the person as an involuntary patient by completing and filing with the officer in charge a certificate of involuntary admission if the attending physician is of the opinion that the conditions set out in subsection (1.1) or (5) are met.
[18] Subsection 20(1.1) of the Mental Health Act sets the conditions for involuntary admission to the hospital as follows,
The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion that the patient,
(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person;
(b) has shown clinical improvement as a result of the treatment;
(c) is suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;
(d) given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment;
(e) has been found incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained; and
(f) is not suitable for admission or continuation as an informal or voluntary patient.
[19] As there was no one available to care for the children when the mother was taken to hospital, the police called the Halton Children’s Aid Society and a worker attended at the gas station and brought the children to a place of safety. They were in foster care for five days before they were moved to the father’s home in Petawawa, Ontario on April 17, 2021.
[20] While in hospital, the mother consented to the children being placed temporarily with the father. The mother did not want the children in foster care and felt that due to her hospitalization she had no choice but to agree to the children being moved to their father’s home.
[21] The mother was discharged from hospital on April 19, 2021. On May 4, 2021, the mother no longer agreed to the children remaining in their father’s care. On May 11, 2021, Family and Children’s Services of Renfrew County commenced a Protection Application and on that same date, Justice Mary Fraser of the Superior Court of Justice, Family Court in Pembrooke made a temporary without prejudice order placing the children in their father’s care subject to the society’s supervision and granted the mother supervised access in the discretion of the society including a minimum of two virtual visits per week and one in person visit per month. In addition, Justice Fraser ordered that the father’s address and telephone number was not to be disclosed on the court documents.
[22] As the mother and children lived in Toronto at the time of the mother’s hospitalization and intervention by Halton Children’s Aid Society, Justice Fraser transferred the case to the jurisdiction of this court and the case was assumed by the Children’s Aid Society of Toronto.
[23] On November 24, 2021, Justice Stanley Sherr heard a temporary care and custody motion. The mother asked the court to place the children in her care subject to the society’s supervision while the society and the father asked the court to make Justice Fraser’s order temporary with prejudice.
[24] On November 26, 2021, Justice Sherr released his endorsement setting out the reasons for ordering that the terms of Justice Fraser’s order will continue with prejudice. Justice Sherr found the evidence to support a finding that there are reasonable grounds to believe that there is a real possibility that if the children are returned to the mother’s care, it is more probable than not that they will suffer harm and that the children cannot be adequately protected by terms or conditions of a temporary supervision order in her care.
[25] Justice Sherr noted in his endorsement that the mother has every right to represent herself in this matter but if she continues to do so, the society is urged to consider bringing a motion to appoint amicus “to ensure that the court receives the necessary testing of the evidence to make the best decision for the children.”
[26] On April 5, 2022, the society brought a motion for an order appointing amicus to assist the mother in presenting her case. The order was granted by Justice Carolyn Jones, and Katharina Janczaruk was appointed amicus to assist the court to ensure that evidence supporting the mother was presented and the evidence of the parties with opposing positions was tested.
III. Are the children First Nations, Inuk or Métis children?
Legal Considerations
[27] Clause 90(2)(b) of the Act provides that before determining whether the children are in need of protection, the court shall determine whether the children are First Nations, Inuk or Métis and, if so, the children’s bands and First Nations, Inuit or Métis Communities.
Position of the parties
[28] The society and the father take the position that the children are First Nations children as the paternal grandmother identifies as having Mohawk, Cherokee and Cree heritage.
[29] The mother’s position is that the children are not First Nations children.
[30] The society assisted the father and paternal grandmother to make enquiries with the genealogical department at Indigenous Services Canada to complete a family history search in October 2022. On November 2, 2022, the father and the paternal grandmother advised the society that the family history search was completed, and the genealogical department of Indigenous Services Canada was unable to locate an Indigenous ancestry for their family.
[31] The parties agree that if the children are found to be First Nations children, the court is not precluded from making a finding in need of protection or dispositional orders at this time as there is no band or community to serve with the Protection Application under the regulations to the Act.
The parties’ evidence regarding whether the children are First Nations, Inuk or Métis
[32] The paternal grandmother’s evidence is that she considers herself black and “native Indian”. She says her mother identified as “Cherokee Indian” and that she knew her whole life that she was “part Indian”. She says that she “hung out with my cousins and went to one pow wow”. She says she has always been interested in her Native heritage and told her 8 children what she knew about it but has grown more interested in her background more recently.
[33] When asked about his understanding of his ancestry the father said that this question should be asked of his mother.
[34] The mother did not give evidence in support of her position on this issue.
Conclusion regarding whether the children are First Nations, Inuk or Métis
[35] The society relies on the decision of Justice Stanley Sherr in Catholic Children’s Aid Society of Toronto v. S.T. and B.F., 2019 ONCJ 207, in which Justice Sherr considered the case law addressing the identification of First Nations, Inuk and Métis children and endorsed the approach in which the court took a broad view in interpreting if a child is a First Nations, Inuk or Métis child. Justice Sherr found that the broad approach which includes a low threshold of reliable and credible evidence or information upon which the court can base a finding that a child is a First Nations, Inuk or Métis child was consistent with the preamble and purposes of the Act.
[36] Section 1 of Regulation 155/18 to the Act provides that,
A child is a First Nations, Inuk or Métis child for the purposes of the Act if,
(a) the child identifies themself as a First Nations, Inuk or Métis child or a parent of the child identifies the child as a First Nations, Inuk or Métis child;
(b) the child is a member of or identifies with, as determined under section 21 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act, one or more bands or First Nations, Inuit or Métis communities; or
(c) it cannot be determined under clause (a) or (b) whether the child is a First Nations, Inuk or Métis child but there is information that demonstrates that,
(i) a relative or sibling of the child identifies as a First Nations, Inuk or Métis person, or
(ii) there is a connection between the child and a band or a First Nations, Inuit or Métis community.
[37] In this case, the court can only find the children to be First Nations Inuk or Métis pursuant to section 1(c) of the regulation.
[38] Subsection 2(1) of the Act defines a relative with respect to a child as, “a person who is the child’s grandparent, great-uncle, great-aunt, uncle or aunt, including through a spousal relationship or adoption”.
[39] As the children’s paternal grandmother is a relative of the children pursuant to subsection 2(1) of the Act, there is information before the court that demonstrates that a relative of the children identifies as First Nations.
[40] The paternal grandmother gave evidence that she heard her whole life that she had indigenous ancestry and that she considers herself to be black and native Indian. Taking the broad approach towards making this determination as endorsed by Justice Sherr, the court finds that that there is sufficient credible evidence to support a finding that the children are First Nations children.
[41] As the society and the father have already made the necessary enquires to demonstrate that there is no identified band or communities to give notice of this proceeding to, the court can move forward to determine the issue of whether there should be a finding that the children are in need of protection.
IV. Finding in need of protection
Legal Considerations
[42] The society seeks a finding that the children are in need of protection pursuant to clause 74(2)(b)(i) of the Child, Youth and Family Services Act (the Act). This clause read as follows:
74(2)(b) 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,
(i) failure to adequately care for, provide for, supervise or protect the child
[43] The society has the onus, on a balance of probabilities, to establish that the children are at risk of harm.
[44] If the court finds that the children are not in need of protection, then that is the end of the Society’s protection application.[^1]
[45] The risk of harm under clause 74(2)(b) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours.[^2]
[46] A child may be at risk even if the conduct is not directed specifically towards that child.[^3]
[47] The court can choose a flexible approach when considering the timing of the protection finding in a child protection proceeding. The court can and should admit evidence arising at any time up to the date of the court hearing.[^4]
[48] The flexible approach allows the court to consider if the child is in need of protection at the start of the proceeding, the hearing date, or some other date.[^5]
[49] The parties agree that on April 12, 2021, when the mother was hospitalized, the children were in need of protection. The mother does not dispute that she had no one to care for her children while she was in hospital. The father and mother say that the evidence supports a finding as of April 12, 2021, that the children were in need of protection due to the mother being unable to care for the children pursuant to section 74(2)(n) of the Act.
[50] When Family and Children’s Services of Renfrew County commenced the Protection Application on May 11, 2021, the mother was no longer hospitalized, and she no longer consented to the children being removed from her care. As a result, a finding pursuant to 74(2)(n) is not available to the court as the mother was no longer unable to care for the children and was not consenting to the children being removed from her care.
Conclusion regarding finding in need of protection
[51] The evidence supports a finding that the children were in need of protection when the society intervened pursuant to Part V of the Act and have continued to be in need of protection throughout. As more information became available about the mother the protection concerns and the risk to the children has increased.
[52] In Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, Justice Stanley Sherr wrote that a child is not automatically in need of protection when a parent suffers from mental health issues. The court wrote at paragraph 114:
[114] The court needs to assess several factors to determine if a parent’s mental illness places a child at risk of harm and if so, whether a child can still be placed in the parent’s care. These factors include:
a) The type of mental illness the parent has.
b) The severity of the mental illness.
c) The frequency of the parent’s mental illness symptoms – whether they are situational or chronic.
d) The impact of the mental illness on the parent’s functioning.
e) The impact of the mental illness on the parent’s parenting.
f) Other risk factors impacting on the mental illness, including substance abuse, difficulties with interpersonal relationships, domestic violence and other stressors such as unstable housing and financial problems.
g) The impact of the mental illness on the children.
h) The insight of the parent into their mental illness.
i) The ability of the parent to meaningfully engage with supports to address the mental health issues.
j) Whether the parent is compliant with treatment recommendations.
k) The strength of the parent’s support system, the insight of those support persons into the parent’s mental health issues and the ability of those persons to prioritize a child’s needs to those of the parent’s and to protect the child.
l) Whether the children have any needs that make them more vulnerable to compromised parenting.
[53] The uncontested evidence is that the mother had an event in April 2021 that led to her calling police and being hospitalized pursuant to a Form 1 and then a Form 3 under the Mental Health Act. As a result, the children were temporarily in foster care before being placed with their father. Hospital records disclose a psychotic illness for which an antipsychotic medication was prescribed.
[54] The mother’s evidence was indicative of a person suffering from serious mental health issues. She is extremely paranoid, cautious and distrustful. She accuses all professionals of working against her. She holds beliefs that her father killed her brother and that the father of her children is really her half sibling. She has general fears that people are out to get her and that no one cares. The society provided a significant amount of evidence that demonstrates the mother is struggling with untreated mental health issues.
[55] While the mother accepted treatment in the hospital in April 2021, she has refused treatment since being released from hospital on April 19, 2021. She made it very clear in her evidence that she does not believe she suffers from any mental health issues, that the diagnoses made in the past are incorrect and that she does not require medication.
[56] The mother was hospitalized in 2020 and 2021 due to essentially the same behaviours. This is therefore not a mental health event that can be considered situational. Her lack of insight into her mental health challenges suggests that it is unlikely that she will pursue the services necessary to address the issues that arise from her mental health being untreated. As a result, the risk to the children remains.
[57] The mother’s poor mental health has impacted the children in that they have been transient, lived in hotel rooms, been driven around for 24 hours straight, and, ended up in foster care. Her poor mental health has also contributed to the children not seeing their mother but for two occasions since July 2021 as she would not agree to be driven to a visit by two society workers as she believed they were conspiring against her.
[58] The fact that the children are both young and have significant special needs and are mostly nonverbal, increases the risk to them due to their mother’s inability or unwillingness to address her mental health challenges. This is heightened by the mother’s evidence that she has no support system at all in place to assist her. She said she cannot rely on her family or friends at this time for help.
[59] The evidence supports a finding that the children were in need of protection under 74(2)(b)(i) when the society intervened under Part V of the Act due to the mother’s significant mental health problems that resulted in her being unable to safely care for the children.
[60] At the time of society intervention, the mother was not a stable or secure caregiver due to her mental health struggles and she was unable to meet the children’s emotional, psychological or developmental needs. As will be set out below, the mother’s mental health challenges have rendered her unable to safely care for the children since society intervention. The mother does not acknowledge that she suffers from any mental health issues and refuses to pursue treatment. As a result, the children have remained in need of protection throughout this case and up to the date of trial.
V. What dispositional order, if any, should be made by the court as a result of the finding in need of protection?
Legal Considerations
[61] Subsection 101(1) of the Act provides that where a court finds that a child is in need of protection it must first satisfy itself that intervention through a court order is necessary to protect the child in the future.
[62] Subsection 101(8) of the Act provides that where a court order is not necessary to protect a child in the future the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act.
[63] In determining if a court order is necessary to protect a child in the future the court can consider protection concerns other than those that resulted in the child coming into care.[^6]
[64] Subsection 101(1) and section 102 of the reads as follows:
101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:
Supervision order
- That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
Interim society care
- That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
Extended society care
- That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
Consecutive orders of interim society care and supervision
- That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.
102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
[65] When determining what order should be made under subsection 101(1) of the Act, subsection 101(2) of the Act requires the court to ask what efforts the society or another agency or person made to assist the children before intervention under Part V of the Act.
[66] Subsection 101(3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.
[67] Subsection 101(4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.
[68] The father and the society agree that an order is necessary to protect the children in the future but differ on what that order should be. The mother argues that the children should be returned to her care and no order is necessary to protect the children in the future.
[69] The court finds that the society made extensive efforts to assist the family before intervention including:
(a) Referred the family to Journey to Zero twice, once in May 2021 and again in July 2022, to attend family partnership meetings in an attempt to formulate plans to maintain the children in the father’s care.
(b) Referred the mother to various organizations to pursue counselling including Across Boundaries and TAIBU Community Health Centre.
(c) The family service worker currently working with the family offered to drive the mother to Peterborough and Bancroft to have access to the children.
(d) The Renfrew County worker connected the father to an infant and child development program for Z. and a development recourses coordinator.
(e) The Renfrew County worker assisted father in completing the forms required to obtain the child tax credit.
(f) The society workers repeatedly attempted to persuade the mother to see her family doctor to discuss her hospitalizations and the diagnoses she received from Joseph Brant Hospital and Dr. Bottas at The Rouge Valley Health System.
(g) The Renfrew County worker assisted father by communicating with school officials and attending school meetings with the father.
The children
[70] H. and Z. are two young children who are loved very much by their mother, father and paternal grandmother. H. is described by the mother as a beautiful little girl who is joyful and affection. The mother says H. is a people person like her, and everyone loves her. She says H. likes to dance and sing. The paternal grandmother says H. likes to give hugs.
[71] Z. is described by his mother as cooperative, observant and smiley. He likes to mimic his sister and he picks up on her behaviours.
[72] The paternal grandmother says both children understand their routine upon their return from school and have learned how to ask for what they want and where to get things like their snacks from the kitchen. She says Z. loves to roughhouse with his father and both children like colouring and watching their favourite shows. Both children are reported as doing well in school.
[73] Both children are autistic and mostly nonverbal.
Who was or were the children’s preintervention caregiver(s)?
[74] Subsection 101(3) of the Act provides that,
The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.
[75] Subsection 101(3) requires the court to ask, who was responsible for the care of the children immediately before society intervention?
[76] The society and the father argue that both the mother and the father were responsible for the care of the children prior to society intervention. The mother says that she was the primary caregiver to the children before being hospitalized on April 12, 2021 and had no choice but to agree to the children being placed in their father’s care in order to have them removed from foster care.
[77] Deciding who was responsible for the care of the children prior to society intervention is important as the Act requires the court not to make an order removing the children from that person’s care unless doing so would result in continued risk of harm to the children that cannot be mitigated by additional orders.
[78] When Halton Children’s Aid Society became involved on April 12, 2021, there is no question that the mother was responsible for the care of the children. The children were brough to a place of safety and placed in foster care. As Justice Sherr noted in his decision on the temporary care and custody motion, “Halton CAS either had to return the child to the mother, enter into a temporary care agreement with her pursuant to subsection 75(1) of the Act or bring the matter to court within 5 days. They did none of those things.”
[79] Section 88 of the Act obliges children’s aid societies to bring a matter to court within 5 days of a child being brought to a place of safety. The Halton Children’s Aid Society felt they were relieved from the statutory obligation to bring the matter before the court within 5 days of April 12, 2021, because the mother provided her verbal consent from her hospital room for the children being moved from foster care to the father’s care.
[80] The society says the mother should not lose her status as a party responsible for the care of the children prior to Halton CAS intervention. The father says he is also considered a preintervention caregiver and that his status as such should not be stripped from him because of Halton CAS’s dereliction of their duties under the Act.
[81] As stated above, the decision on this issue is important because the court must first look to maintain the children in the care of the preintervention caregiver(s) if at all possible. If the mother was the sole preintervention caregiver, the court finds for the reasons set out below that the children cannot be returned to her care as they would not be safe in her care and no orders can be made to address the risks if returned to her care.
[82] The father had active care of the children from April 17, 2021 until the matter was first before the court on May 11, 2021. I agree with the father and the society that he too was a preintervention caregiver of the children.
[83] The Act is a remedial statute and must be interpreted in a manner consistent with the primary purposes of the Act to promote the best interests, protection and well-being of children and in doing so strive to support the integrity of the family. Finding that the father, who did nothing contrary to the law and agreed to take responsibility for the full time care for his children who were in foster care, was not a preintervention caregiver would be contrary to the paramount purposes of the Act. The court does not and should not lightly eliminate the subsection 94(2) rights of the person who had charge of the child.[^7]
[84] The court finds that both parents had responsibility for the care of the children prior to society intervention. However, as will be set out in detail below, even if the mother had been found to be the children’s preintervention caregiver, it would not be in the children’s best interests to be placed in her care.
Is intervention through a court order necessary to protect the children in the future?
Legal Considerations
[85] In determining the appropriate disposition, the court must decide what is in the children’s best interests. The court considered the criteria set out in subsection 74(3) of the Act in making this determination. This subsection reads as follows:
Best interests of child
74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
Is an order necessary to protect the children in the future?
[86] The mother asks the court to order the return of the children to her care. She did not indicate if she believes the society’s supervision of her care is necessary on an ongoing basis. The society requests an order placing the children in the father’s care subject to the society’s supervision and the father asks the court to grant him custody of the children pursuant to section 102 of the Act.
[87] An assessment of the parties’ respective plans will answer the question of whether an order is necessary to protect the children in the future.
[88] The court’s assessment of the respective plans includes a consideration of the best interest considerations set out in subsection 74(3) of the Act.
The mother’s plan
[89] The mother raised the children from birth until H. was five years of age and Z. was two years of age. The evidence demonstrates that the mother was resourceful in obtaining services and funding for H. after her autism diagnosis. She secured funding for H. to obtain therapy and took steps for her to be in a diagnostic kindergarten class. The mother also obtained services for herself through Strides/Aislings and took a parenting course entitled ‘Nobody’s Perfect’. She also says she took a 12 week program called ‘Impact’ which assisted her in supporting H.’s development.
[90] The mother demonstrated that she can advocate for her children and navigate a complicated system to obtain funding and services for them although the court received evidence that she did not utilize the $20,000.00 she received in government funding for H. on the autism services the funding is earmarked for.
[91] This family was brought before the court after the mother found herself in crisis in April 2021 with no one to call for help other than the police. She said she had no family or friends she could turn to nor was the children’s father available to help her.
[92] The police officer who gave evidence said she was talking very fast and was paranoid and overly suspicious.
[93] The mother was at Joseph Brant Hospital in Burlington, Ontario for 7 days pursuant to a Form 1 and Form 3 under the Mental Health Act. Her medical records were in evidence at the trial.
[94] The Discharge Summary from Joseph Brant Hospital provides that when the mother arrived at the hospital “her mental status was significant for inappropriate affect”, “her speech was pressured and speed up” and “Her thought content also revealed persecutory and paranoid delusions regarding ex-partners and concerns about her safety and she was frequently gregarious, laughing and intrusive with co-patients.”
[95] The Discharge Summary advises that with the introduction of antipsychotic medication, the mother “had a clear objective improvement within a few days”, “slept well” and “She was calm, cooperative, pleasant and her affect appeared to be more appropriate though remained expansive at discharge.” The summary indicated that the mother “initially did not acknowledge any symptoms of psychosis but, did acknowledge that the medications were helpful in managing the speed of her thoughts and decreasing some of her difficulty with sleep.”
[96] The discharge summary discloses a previous “psychiatric contact” by the mother with Rouge Valley Heath Systems in November 2020, “with similar presentation”. The discharge summary states, that in November 2020 the mother “indicated she believed that her father had killed her brother and presented to the police station requesting help. She had vague paranoid and persecutory beliefs and Dr. Okyere indicated that her most likely diagnosis is that of an adjustment disorder or unspecified psychotic disorder.”
[97] The discharge diagnosis from Joseph Brant Hospital is “Unspecified schizophrenia spectrum and other psychotic disorders” and “Rule out unspecified bipolar spectrum disorder.” The mother was referred for outpatient psychiatric follow up through Rouge Valley Health System.
[98] The mother attended for a virtual psychiatry consultation with Dr. Alexandra Bottas at Rouge Valley Health Systems on May 18, 2021. Dr. Bottas noted that from the outset, the mother was very clear that she does not require or want any psychiatric services. The report provides that the mother’s “affect ranged from quite irritable and challenging to more elated, and at times laughing, following her own statements”. The mother was also reported to have “oscillated between telling me she wants nothing to do with me and “anybody”, does not require help, to then becoming engaged in the interview again”.
[99] In conclusion, Dr. Bottas wrote that the mother was very clear that she did not wish to follow up with her or psychiatry in general and that she was at risk of discontinuing her medication.
[100] The consultation reports the following “Impressions and Recommendations”:
“This 35-year-old female appears to suffer from either a schizophrenia spectrum disorder or a bipolar 1 disorder with psychotic features during a query manic episode. There certainly does appear to have been a significant affective component to her presentation.
[101] Dr. Bottas recommended continued use of the Loxapine prescribed by doctors at Joseph Brant Hospital and follow up with the mother’s family doctor.
[102] The mother’s evidence is that while the medication prescribed by doctors at Joseph Brant Hospital did help her sleep, she did not like the way it made her feel, so she discontinued use. She said she does not suffer from any mental health issues and therefore does not require treatment or medication for same. There is no evidence of any follow up by the mother with her family doctor regarding the discharge summary from Joseph Brant Hospital and the report from the psychiatry consultation with Dr. Bottas.
[103] The mother said several times that she did not understand the diagnosis she received at Joseph Brant Hospital or by Dr. Bottas but she could not remember discussing the diagnoses with anyone.
[104] The society gave evidence that the mother was encouraged many times to follow up with her family doctor to discuss how the Loxapine made her feel as there might be other medication or dosage alterations that could address this problem. As she did not do so, the society says that little has changed since the children were removed from the mother’s care.
[105] The society’s evidence is that throughout their involvement, the mother has continually exhibited behaviours that suggest she has an untreated mental health issue. She is extremely distrustful of almost everyone including the society workers, doctors, her family and the father and his family. She has shared several thoughts and beliefs with the workers that are cause for concern such as her belief that her father murdered her brother, that her family and the father of her children are out to get her and that the father and her are in fact half siblings. The mother does not deny making these statements.
[106] The mother has also made comments to the society that she is a private investigator and that she works for the police and the military. On August 12, 2021, the mother told a society worker that she is a private investigator for the police gathering information about her brother’s death. On August 8, 2022, the mother told another society worker that she wanted to be a police officer and she was already a “secret police officer.” She has also said that she is the best person to diagnose herself of any ailments and to represent herself in court as she can do so better than a lawyer.
[107] The mother gave evidence confirming much of what was reported by the society workers. In fact, there is not much contested evidence. She did say and continues to wonder whether her father killed her brother. She thought it is possible that her and the father of her children are half sibling as this might explain why her children are autistic. She denies saying she worked for the police although she would like to some day.
[108] The mother said very clearly that she does not trust the society, the lawyers or the court. She has “fired” several workers as they, like many professionals in her life, are working against her not for her. She said she cannot trust anyone except herself. When the current family service worker offered to drive her to a visit with her children in Renfrew County, the mother rejected the offer as the worker had invited a former family service worker to join them and this made the mother suspicious.
The mother’s access to the children since April 12, 2021
[109] The father and the children reside in Petawawa, Ontario. That is approximately a 5 hour drive from Toronto where the mother resides. The father does not have a drivers’ license. The mother had a drivers’ license and a car prior to trial but at the time of trial she said her license expired and her car was repossessed.
[110] Immediately after the children were placed with the father, arrangements were made for the children to have access with the mother in Toronto. The father’s stepfather works in Toronto and he drove the children and the father to Toronto. In June 2021, the children actually spent two weeks in the mother’s care. A second two week visit that was scheduled for July 2021 could not take place as the mother was not presenting well, had sent concerning emails to the worker, and the father had concerns about her care of the children during the June 2021 visit. More specifically, the society worker said that the mother was leaving her long messages and made statements about working undercover and that she would keep the children until the “perpetrators were behind bars”. The mother also left the father vulgar voice and text messages.
[111] As a result of the vulgar comments the mother made towards the father and paternal grandmother, the paternal family was no longer willing to deliver the children to Toronto to see their mother. The father and paternal grandmother did not admit this to the be the case, but it is clear from their evidence that they were extremely offended by the mother’s vulgarity and specifically her comments that the maternal grandfather of the children was actually the father’s biological father. The court finds that the mother’s conduct is the reason, if not in full then in part, for the paternal family no longer willing to bring the children to Toronto to see their mother.
[112] The visit on September 24, 2021 went well but was cut short by the mother after only one hour. The worker supervising the visit said that the mother was loving, caring, nurturing and brought clothing for the children. The August 2022 visit was supervised by the Renfrew County worker who described the visit as having gone very well without incident or concerns. The children responded to their mother and she was appropriate, prepared, and engaged.
[113] The mother has only had two in person visits with the children since July 2021; one on September 24, 2021, at the society’s office and once in August 2022. She was unable or unwilling to travel to Renfrew County or some other location between hers and father’s residence to see the children despite exhaustive efforts made by her various workers to arrange a visit. She was offered financial assistance by the society to pay for her fuel. She accepted the financial assistance on only one occasion. She was offered to be driven by a society worker but said she was not a baby and could drive herself. Several in person visits by the mother were cancelled over the last 21 months.
[114] In one email to her worker who was trying to coordinate an in person visit, the mother said that the arrangements for her to have in person access were “suspicious” and she cancelled the visit. The mother’s email to the worker said, “I don't trust none of it! Don't schedule nothing right now. Hold off on it! I will see my children on video twice a week and wait until the settlement on the next court date.”
[115] The mother’s evidence is that at some point her license was suspended and now is expired and she believes she “has to start all over again”. In addition, she said her car was not in a sufficient state of repair to do the long drive to see the children whether in Renfrew County, Peterborough or Bancroft, Ontario.
[116] It is also clear from the evidence that the mother was extremely frustrated and upset with the fact that the children had not been returned to her care. On more than one occasion she told a society worker that she is not going to see the children until the next court date as she appeared to believe that on that date, the children would be ordered returned to her care.
[117] The mother was granted two weekly virtual calls with the children. The society says approximately 50% of these calls have taken place. The mother does not dispute this estimate. Her evidence is that her life sometimes interferes with the day and timing of the calls.
[118] The calls are described as currently generally going well since the society began supervising the calls in April 2022 after the father reported receiving multiple vulgar and inappropriate communications from the mother. Prior to the society’s involvement, the father complained of repeated inappropriate conduct by the mother during the calls which resulted in some of the calls being terminated by the father.
Conclusion regarding the mother’s plan
[119] The mother is clearly intelligent. She was forthright with the court and did not evade answering most questions. She also presents as truthful admitting that certain things she said and did would be concerning and that she understands why others would be worried for the safety of the children. She took direction from the court and was respectful. She did not engage inappropriately with the lawyers at any time during cross examination.
[120] The mother’s behaviour in court was at times bizarre and often mirrored the behaviour describes in the medical reports. The mother spoke very fast and in long sentences and often went off on a speech or diatribe during her evidence about her rights and how she has been treated by the society and the court. It was very difficult for her to focus on the question asked of her. She would often talk at length about something unrelated to the question, then laugh and say, “sorry, what was the question?” She quoted the bible, got angry and then quickly apologized and calmed down. She would laugh at evidence given by others in an incredulous manner and then apologize when asked to control herself. She laughed several times during her own evidence.
[121] The mother gave evidence that highlighted her paranoia. She does not trust any of the society workers who, like all of the professionals she has worked with, are working against her. She has no family or friends that she can trust to support her. She has threatened lawsuits against the society and several of the workers.
[122] Sadly, the mother presents as suffering from mental health issues. Unfortunately, she refuses to accept that her speeding thoughts, distrust of almost everyone around her, significant changes in her mood within seconds, and her unfounded beliefs that her father killed her brother or that the father of her children is her half brother are signs that she needs psychiatric help. In addition, there is unfortunately no one in the mother’s life who can influence her to consider pursuing psychiatric intervention. She admittedly has no support system in her life. No one gave evidence on behalf of the mother or in support of her plan.
[123] The mother has without a doubt failed to make reasonable efforts to maintain in person contact with the children. She did not take advantage of the society’s offer to provide her with $100.00 and then $200.00 to cover her travel costs to go see the children except on one occasion; she did not accept the society’s offer to drive her to Peterborough or Bancroft to see the children; she cancelled several in person visits and approximately 50% of virtual visits. At times she told society workers that she was not going to see the children until the next court date as she was expecting the children to be returned to her care.
[124] The mother’s judgment with respect to exercising access suggests an inability on her part to recognize the children’s need to see her and the potential emotional harm her choices can cause them. The mother’s decision not to exercise access for the reasons she has provided suggests an inability to put the children’s need to have consistent contact with her over her own needs.
[125] The mother is angry with the society and the court system. Sometimes her anger may have impacted her judgment in relation to exercising access. The court cannot contemplate returning children to a caregiver who has been unable to organize herself to maintain consistent contact with the children.
[126] There is an abundance of evidence to support a finding that the children continue to be in need of protection as a result of the mother’s untreated mental health issues. Due to the mother’s instability and failure to address the protection concerns, the children cannot be safely returned to her care.
[127] As the mother does not trust the society or the court, and she has no support system at all, an order placing the children in her care subject to the society’s supervision would not be protective. Even if she did trust the society and would work with them cooperatively, if her mental health issues go untreated, the children would not be safe in her care with or without a supervision order.
If intervention through a court order is necessary to protect the children in the future, what dispositional order is in the children’s best interests?
A comparison of the father’s and society’s positions
[128] In deciding what order to make, the court has considered what is in the best interests of the children as per subsection 74(3) of the Act.
[129] There are two mandatory considerations the court must undertake when determining what dispositional order is in the children’s best interest; the children’s views and wishes unless they cannot be ascertained; and, in the case of First Nations, Inuk or Métis children, to importance of preserving the children’s cultural identify.
[130] H. is 7 years old and Z. is 4 years old. They are both diagnosed with autism and are mostly nonverbal. They are unable to express their views and wishes. As both the society and the father are seeking orders maintaining the children in their father’s care, both placements will foster and preserve their cultural identity as First Nations children.
[131] The father’s evidence is that both children are doing well in his care. He says their behaviours, while challenging, have improved over time and that he has acquired better parenting skills to address and manage. He says they both eat and sleep better than when they were first placed in his care and H. is now toilet trained. The children have also received their immunizations which they did not receive while in their mother’s care. The father says both children are happier now when the first arrived in Petawawa.
[132] The father seeks an order granting him custody of the children pursuant to section 102 of the Act as he says he has demonstrated that he can provide instrumental care of the children and he and the children no longer require society involvement. He further says, as he has cooperated fully with the society and followed all their recommendations with respect to the children, a court order for society supervision is not necessary.
[133] The children have been in the father’s care since April 19, 2021. While the children have technically been in the father’s care for 21 months, it is not disputed that until the summer of 2022, the paternal grandmother provided most of the day to day care of the children and was instrumental in guiding and teaching the father in acquiring basic parenting skills.
[134] It is not disputed that in July of 2022, the paternal grandmother became so frustrated with what the father expected of her in terms of the day to day care of the children that she told the father that he and the children had to move out of her home. She had raised 8 children and said she was not interested in raising more children. It is not disputed that the father and the paternal grandmother had arguments about the level of care she was providing the children and that the father called her selfish for wanting to take on less responsibility.
[135] Around the time that the paternal grandmother expressed her frustration and told the father to move out of her home, the father told the Renfrew County worker that he was worried about his ability to manage the children on his own and possibly having a mental breakdown.
[136] It is also not disputed that since approximately August 2022, the father has made significant gains in assuming responsibility for the care of his children from the paternal grandmother. He is fully responsible for getting the children up and ready for school in the morning, other than the paternal grandmother doing H.’s hair, and taking them to and picking them up from the taxi stop before and after school. When the children come home from school the father is primarily responsible for implementing their routine and readying them for dinner and eventually bedtime. The paternal grandmother makes dinner. The father is entirely responsible for the care of the children from after dinner to bedtime, a period of time the paternal grandmother referred to as “me time”.
[137] The paternal grandmother’s evidence is that because of the gains the father has made, she is not worried about leaving the home, even for several days at time, something she would not have done when the children first arrived at her home. She has confidence in his ability to care for the children without her.
[138] The mother acknowledges that the father is doing a good job taking care of the children but has concerns about his mental health. She says that he has endured significant trauma in his life and should be pursuing therapy. The society has also suggested the father engage with a therapist but he has chosen not to do so.
[139] The society agrees that the father has made significant gains in assuming the role of primary caregiver to the children. They agree that he has always been cooperative with the society and has for the most part followed up on their recommendations.
[140] This does not mean the society does not have concerns. The society workers gave evidence that the father is extremely reliant on them for assistance that ranges from help filling in forms to receive the child tax benefit, attending at school meetings with him to just being able to vent to them about the difficulties of becoming a full time father to two children with high needs.
[141] The father did not dispute the society’s evidence and readily admits that the workers, especially his worker in Renfrew County, have been instrumental in helping him succeed in becoming the primary caregiver to the children. He admits to calling his worker very recently to vent and asking her to attend a school meeting with him as recently as December 2022. He says that he does not require a court order to turn to the society for help and will continue to do so with or without a court order.
[142] The Renfrew County worker gave evidence that without a supervision order, she will not be able to be as involved in the father’s life as she currently is. She said that it would not be feasible for her to provide the same level of services she does now without a supervision order or a voluntary agreement. For example, she said she would not be available to the father “to vent” or to attend a school meeting with him.
[143] The father also sees society workers as the most appropriate party to be the third party to arrange and facilitate the mother’s access to the children. When asked who the third party facilitator would be if he was granted custody, he suggested, if necessary, the police.
[144] The society’s position is that while the father has made significant gains, it requires a longer period of stability than 4 to 5 months before terminating their involvement. The society also wishes to ensure that the father sustains the growth he has demonstrated over the last 4 to 5 months as the children have significant needs. He has to demonstrate a sustained ability to follow up with services for which the children are currently on waitlists as the evidence before the court is that he does not appear to be proactive in following up to ensure that the children continue to remain eligible and on the waitlist.
[145] The society is also concerned that a termination of their involvement and oversight would have an extremely detrimental impact on the mother’s access to the children. The evidence is that there is so much distrust between the parents and the mother and paternal grandmother that they have had to arrange all the mother’s access including virtual access. The society says their involvement by way of a supervision order is necessary to ensure every effort is made to maintain a relationship between the children and their mother.
[146] The father and the paternal grandmother both gave evidence that demonstrates that they do not understand how the mother’s untreated mental health issues may cause her to behave in ways they do not approve of. They blame her for her behaviour and said she has to “grow up” and “be a mother”.
[147] While both the father and the paternal grandmother gave evidence that they want the mother to be in the children’s lives and have a relationship with them, their evidence was short on details about what they would do to make sure that happens, especially given the mother’s challenges. The father’s position is that the mother has to come to Renfrew County to see the children. He offers no proposal that involves him ever being responsible for bringing the children to Toronto to see their mother as he does not drive and does not have a car. He relies on his stepfather to take him and the children to appointments.
[148] The father has not provided the mother with any updates or information as to how the children are doing in his care. In fact, he has blocked the mother from his cell phone due to previous offensive messages she has sent him.
[149] The society’s concerns around the issue of the mother’s access to the children are justified. While the mother has only had two in person visits in the last 21 months, the last one that occurred in August 2022 went very well and the children responded positively. Everyone agrees that the children would benefit from more in person access with their mother provided she is well.
[150] The mother is permitted to have two virtual visits with the children weekly on Tuesdays and Thursdays. In approximately April 2022, the society began supervising these visits due to some inappropriate behaviour by the mother towards the father and paternal grandmother. The parties all agree that for the most part since the society began arranging the virtual visits, when they have taken place, the visits have gone well. The mother engages the children and acts appropriately. They know her and respond to her. Sometimes, like all children, they are not interested in a virtual visit and cannot be engaged. That is understandable.
[151] H. and Z. know their mother. She loves them very much and wants to be involved in their lives. She is very angry that they are so far away from her and that she receives no information about them from the father. She was particularly upset to learn at the trial that H. apparently had a cavity when she was placed in the father’s care and that to date, he has not taken her to the dentist.
[152] The children would benefit from having an ongoing relationship with their mother. They must be given this opportunity. The father has not put forward a viable plan that will allow this to happen. He says the court should order supervised access at a centre close to where the children reside in addition to two weekly virtual visits. As there is obvious anger and mistrust between the parents, the court is not at all confident that such an order will result in the children seeing or having contact their mother.
[153] It is important for the father to understand that as the children’s primary caregiver, he must do all that is reasonable to ensure the children enjoy a relationship with their mother as doing so is in their best interests. The evidence is that the father is not doing all her can to foster that relationship. For example, he could do the following:
(a) Provide the mother with information about the children. She must be kept informed about their education and medical treatment. She is entitled to receive that information.
(b) The father should educate himself to better understand how the mother’s behaviour towards him and his mother, which might be hurtful and inappropriate, is not a basis for cutting off all communication with her and denying her any information about the children’s progress and well being. The choices the father and paternal grandmother have made in this regard have functioned to fuel the mother’s anger over the situation and likely have negatively impacted the children’s relationship with their mother.
(c) The father should consider options like arranging an appointment with his family doctor to discuss the mother’s diagnoses and her behaviour and how they are related. This might allow for more empathy and less blame.
(d) The father should make greater efforts and sacrifices to ensure the children have in person visits with the mother.
[154] The father must be selfless and do all that he reasonably and safely can to facilitate access between the children and their mother. For now, he requires the assistance of the society to ensure that all options to facilitate the mother’s access are consider and that those options that are feasible are implemented. In order for him to receive that assistance a supervision order is necessary.
Other facts that support a supervision order
[155] The evidence demonstrates some questionable decisions by the father in relation to H.’s attendance at school and dental treatment that supports the need for a supervision order as requested by the society.
H.’s education
[156] When the children first came to live with the father, he did not enrol H. in school in his neighbourhood due to his fears around the Covid-19 pandemic. As H. is autistic and was receiving services in her school in Toronto, the society was concerned about the impact on her development of not attending school and no longer receiving services. The society’s evidence is that the father and his mother were very reluctant to enrol H. in school out of their extreme fear of contracting Covid. The society discussed weighing the consequences of keeping H. out of in person school against the risks associated with Covid.
[157] The father and his mother were extremely frightened of contracting Covid. They had no qualms about keeping H. out of school. The father and paternal grandmother were receiving guidance from H.’s previous school in Toronto regarding what they can do with H. while she was not in school to continue to foster her development.
[158] H. could not engage in virtual school. That was not an option. If H. did not attend in person school, she was missing out on an education. It was not until April 2022 that the father finally enrolled H. in school. The society felt that the father’s decision to keep H. from attending school in person was a poor decision and contrary to H.’s best interests.
[159] The mother also was upset by the father’s decision to keep H. out of school until April 2022. She emphasized the importance of the socialization H. can only receive if she attends school in person.
[160] The court agrees with the society and the mother; the father’s decision to keep H. home and not enrol her in school until April 2022 was not a child focused decision.
H.’s dental care
[161] The father’s evidence is that when H. arrived at his home in April 2021, he noticed a cavity on her molar. He says H. is on a waitlist for dental services through Healthy Smiles, a government program that provides free dental services for children. The paternal grandmother also gave evidence that the cavity causes H. pain and that the father is on a waitlist for dental services.
[162] The society worker from Renfrew County gave evidence that H. was screened at school for dental issues and has a cavity that needed attention immediately and that she did not know if the father took care of that.
[163] H. is mostly nonverbal. She does not have the ability to use words to describe pain from a cavity. The court is very concerned about the father’s failure to address H.’s dental needs in almost two years. That is unacceptable. In addition, because H. is autistic, she may require dental treatment in a hospital or possibly under anesthesia. The father should have addressed H.’s dental issues a long time ago but he has not. These facts contribute to the finding that the father’s care and custody of the children should be subject to supervision by the society.
Conclusion regarding disposition
[164] The court accepts that the father is providing the children with adequate day to day care. He has demonstrated an unwavering commitment to his children. The father is cooperative with the society and other professionals involved with the children including their school. The court also accepts that the father has pursued services for the children recommended by the society and the school. The court finds that the father is a consistent and stable caregiver for the children and it is in their best interests that they be placed in his care and custody.
[165] Despite the positive findings of the court, the evidence does not support a section 102 order granting the father custody of the children. The father’s evidence demonstrates that he does not understand that if he is granted a custody order pursuant to section 102 of the Act, the Renfrew County worker will not be able to be as involved in his life as she currently is. He also does not understand that the society would not be able to continue to act as the third party arranging and facilitating the mother’s access to the children without a supervision order.
[166] The father is far too reliant on the society workers at this time for a custody order to be granted that would terminate the society’s involvement. This is not a criticism of the father. In fact, his willingness to seek assistance from the society when required is an extremely positive factor the court can rely on in support of maintaining the children in his care.
[167] The father admits that his entire support system at this time is his mother and the society. Until he either has a larger support system or the evidence establishes that he does not require the assistance of the society to meet the children’s needs, a supervision order is necessary to protect the children in the future.
[168] In addition, the evidence establishes that the father does not have a sufficient understanding of the importance of the children’s relationship with their mother or how to foster that in the circumstances of this case. His failure to provide the mother with any information about the children since they were placed in his care is telling as is his blocking her from his cell phone. While he did show some insight and understanding when he said if the mother takes her medication, they would be able to work together to parent the children, he said until that happens, they need a third party to do that.
[169] The father cannot be so matter of fact in his approach towards the mother’s relationship with the children. He has to separate how she communicates or interacts with him with how she communicates and interacts with the children. Part of his responsibility as the children’s primary caregiver is to ensure that provided the children are safe, they have contact with their mother. The father should not interfere in this relationship if, for example, the mother says something about him or his mother that he finds rude or offensive especially if her doing so is a direct result of her untreated mental health issues. He has to have thicker skin.
[170] A period of stability as the children’s primary caregiver of four to five months is not sufficient for the court to grant the father a custody order and terminate the society’s involvement with this family. The court will want to see follow up by the father during the period of supervision with the children’s service provides. The court will want to see during the period of supervision, cooperation by the father in ensuring the children have the opportunity to see their mother and by providing her with information about the children and how they are doing in terms of their health and education. The court also expects the father to ensure the children’s education, medical and dental needs are addressed appropriately and in a timely fashion during the period of supervision.
[171] Finally, on the return of the Status Review Application, the father will be expected to demonstrate a more robust support system and how he intends to move forward without the intense involvement in his life of a society family service worker.
[172] For all the reasons and concerns set out above, the court finds that a nine month supervision order is appropriate to allow the mother to address the protection concerns and establish a regular access schedule to the children and for the father to continue to demonstrate he can meet the children’s day to day needs as well as arrange for and maintain services for the children.
[173] The period of supervision will also allow the father to make efforts to better understand the mother’s mental health struggles and how that impacts her behaviour. He will also have time to propose and implement what he is able and willing to do to ensure that the children maintain a meaningful relationship with their mother.
VI. What order for access should be made by the mother to the children?
Legal considerations
[174] Section 104 of the CYFSA sets out the court’s powers in relation to access. It reads as follows:
104 (1) – Access order
The court may, in the child’s best interests,
a) When making an order under this Part; or
b) Upon an application under subsection(2),
make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
[175] All the parties agree that it is important for the children to have access with their mother and to maintain a meaningful relationship with her. Unfortunately, none of the parties proposed a detailed plan to do so. This is made difficult due to the following factors:
(a) The distances between the parties’ homes which is almost 5 hours one way by car.
(b) The father does not drive.
(c) The mother currently does not have a car or a valid drivers’ license.
(d) The children’s ability to tolerate long car drives due to their special needs.
(e) The mother’s inconsistency in exercising access to the children over the past 21 months.
(f) The mother’s instability in exercising access may result in the children travelling long distances only for the mother cancelling or not being well enough to exercise access.
[176] It is agreed by the parties that the children know and love their mother. They have regular video access, and it is clear from the evidence of those who have witnessed the virtual visits that the children have a connection with their mother.
[177] The parties must find a way to facilitate in person access between the mother and the children. This is of course premised on the mother exercising access to the children. The mother must put her children first and do what is necessary to have in person access with the children. The father and the paternal grandmother cannot punish the mother by being inflexible with respect to in person access because of something the mother may have said that they find offensive, especially if what she has said may be due to untreated mental health issues. They must realize that by not making reasonable efforts to ensure the children see their mother, they are punishing the children as well as the mother.
[178] The society is willing to facilitate a minimum of two virtual visits a week which the father agrees to. The mother’s position on virtual access should the children not be returned to her care was unclear but what was clear is that she would like to see her children more and, in her home, or the Toronto area.
[179] The society has not made enquiries as to whether voluntary drivers in Renfrew County will drive to Toronto. They should have done that prior to trial. What is known is that voluntary drivers were arranged for visits in Peterborough and Bancroft but the mother did not take advantage of these arrangements.
[180] The mother says she wants to see her children more. The court will give her the benefit of the doubt that once this decision is released, she will accept it and will make greater efforts to see her children during the period of supervision. All parties including the father will have to take some responsibility for fostering a relationship between the children and their mother.
[181] The father’s evidence is that he has friends and family in Toronto that he can stay with in Toronto. He has done so in the past. What he has not done is stay with friends and family with the children. This too will have to be explored by the society and the father as a possible option for the children to have access to their mother in Toronto.
[182] All that being said, the mother must exercise the access afforded to her. She must accept the bulk of the responsibility for the fact that she has only had two in person visits with the children since July 2021. She gave evidence that she is a very resourceful, hard-working person who has had many jobs. She is capable of working, driving a car and owning a car. The mother must do all she can to ensure she has regular in person visits with her children if not in Renfrew County where the children live, somewhere in between their two residences such as Peterborough or Bancroft.
[183] The mother’s failure to have meaningful access with her children may be due to her untreated mental health issues. The mother is urged to make an appointment to see her family doctor to review the medical records from Joseph Brant Hospital and Dr. Bottas of The Rouge Valley Health System. Her children and a desire to see them more can and should be the motivation for pursuing this course of action.
[184] While it is a fact the parties must all accept that the father lives almost 5 hours from the mother, the parties cannot just give up on the children’s relationship with their mother. The father, as the person who has care and custody of the children must act in their best interests and all agree that it is in H.’s and Z.’s best interest that they have a relationship with their mother. A meaningful relationship between H. and Z. and the mother requires in person parenting time. Both parties have to act in the children’s best interest to allow for in person access to take place. To date, the court finds that neither parent has made sufficient efforts for in person access to occur. For this reason, in part, a supervision order is necessary to protect the children.
Orders
[185] Orders to go as follows:
(a) There shall be the statutory findings as set out on the society’s Amended Protection Application on page 3 of 12, dated November 18, 2022, and issued by the court on November 21, 2022.
(b) The children H. and Z. are found to be in need of protection pursuant to clause 74(2)(b)(i) of the Child, Youth and Family Services Act.
(c) The children H. and Z. shall be placed in the care and custody of their father S.M., subject to the society’s supervision for a period of nine months on the following terms and conditions:
The father
i) The father and the children shall continue to live with the paternal grandmother. The father shall provide the society with no less than 60 days notice of his intention to change his current residence and the details of his intended move.
ii) The father shall allow the worker from Family and Children’s Services of Renfrew County to attend his home for announced and unannounced home visits.
iii) The father shall provide written consent for the exchange of information between the society, Family and Children’s Services of Renfrew County and any service or treatment provider with whom the children are engaged.
iv) The father shall provide written consent for the exchange of information between the society, Family and Children’s Services of Renfrew County and the children’s school/daycare.
v) The father shall ensure that H. and Z. are engaged with appropriate autism resources to support their development.
vi) The father shall arrange for dental care for the children and ensure that all the children’s dental needs are addressed in a timely fashion.
vii) The father shall ensure that he is listed as the primary contact for all service providers working with H. and Z.
viii) The father shall keep the society advised at all times of his current telephone number and email address and advise of any changes within 24 hours of the change.
ix) The father shall arrange to have voicemail on his cellphone to allow callers to leave messages.
x) The father shall keep the mother advised at all times of his telephone number and email address.
xi) The father shall advise the society and the mother immediately of any emergency involving one or both of the children.
xii) The father shall provide the mother with information on a regular basis regarding the children’s health, education and general wellbeing. The father may provide this information directly to the mother or though the society and he or the society may black out any information regarding the father’s address and contact information.
The mother
xiii) The mother shall attend for and provide the society with a recent psychiatric assessment including any diagnosis and treatment plan.
xiv) The mother shall not attend the father’s home.
xv) The mother shall sign consents for the exchange of information between the society and any doctors or therapists/counsellors she sees including her family doctor, Dr. Go.
xvi) The mother shall keep the society advised at all times of her current address, telephone number and email address and advise of any changes within 24 hours of the change.
xvii) The mother shall keep the father advised at all times of her current telephone number and email address.
(d) The mother shall have access to the children at the society’s discretion with respect to duration, level of supervision, and location, at a minimum of twice per week virtually and once per month in person. The society and the father shall make best efforts to have the monthly in person access take place at a location between the parties’ current residences such as in Peterborough or Bancroft, Ontario
(e) The mother shall be permitted a second in person visit per month at the society’s discretion with respect to duration and level of supervision, which visit shall take place in Renfrew County at a location determined by the society. This visit shall be arranged through the society.
[186] During the period of supervision, the Society shall make enquiries with the Children’s Services of Renfrew County about their willingness to have this family’s file transferred to their agency
[187] The trial coordinator shall schedule a Status Review within 9 months of the date of this order.
Released: January 20, 2023
Signed: Justice Melanie Sager
[^1]: Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8, at para. 116.
[^2]: Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273, (Ont. Fam. Ct.).
[^3]: Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.), 1995 CanLII 6216 (ONCJ); Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251.
[^4]: Family and Children’s Services of St. Thomas and Elgin v. M.M., 2019 ONSC 4649, at para. 63; Children’s Aid Society of Halton Region v. L.S.A., 2019 ONCJ 759, at para. 82
[^5]: Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251 at para. 85.
[^6]: Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482.
[^7]: Catholic Children’s Aid Society of Toronto v. W.I. [2014] ONCJ 62. Followed in Catholic Children’s Aid Society v. F.Y.I., 2016 ONCJ 463.