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: 2023 06 20 Court File No.: Toronto C43636-23 AMENDED

BETWEEN:

Children’s Aid Society of Toronto, Applicant,

— AND —

S. C.-J. C. C.-J. J.C., Respondents

Before: Justice Szandtner Heard on: June 13, 2023 Reasons for Judgment released on: June 20, 2023

Counsel: Katherine Georgious, counsel for the Applicant society Gil Kay, counsel for the Respondent S. C.-J. Emma Compeau, agent for the Respondent C. C.-J. Ayesha Hussain, counsel for the Respondent J.C. Lisa Johnson, counsel for the Office of the Children’s Lawyer, legal representative for the child

SZANDTNER J.:

Part One – Introduction

[1] On February 7, 2023, the Honourable Justice Sherr made a without prejudice temporary supervision order placing O.C-J. (the child) in the care and custody of his aunt J.C. (the aunt). This order was unopposed. The return date was set for a temporary care and custody motion.

[2] This is a motion brought by the Respondent mother C.C-J. for the placement of the child in her care pursuant to an order for temporary care and custody. C.C-J. is seeking a temporary supervision order placing the child in her care with a modification of three of the terms of the order sought by the Society.

[3] The Children’s Aid Society of Toronto (the Society) is seeking a temporary order placing the child in the care of his mother C.C-J. with terms and conditions of supervision.

[4] The Respondent mother S.C-J. is seeking a temporary supervision order placing the child in the care of the aunt with terms and conditions of supervision.

[5] The aunt is seeking a temporary supervision order placing the child in the care of his mother C.C-J.

[6] The child’s counsel is supporting a temporary supervision order placing the child in the care of his mother C.C-J. Her client is not seeking any contact with S.C-J. at this time.

Part Two – Background

[7] The court finds the following facts with respect to the background of the parties:

a) The family consists of two mothers, S.C-J. and C.C-J. The parents were married in 2008. The child was born in 2010.

b) The parents separated in March of 2017 and settled all parenting issues by way of final orders made at the Superior Court of Justice on March 9, 2021 and April 21, 2021. Under these orders S.C-J. had sole custody of the child with C.C-J. having access on a two week rotation, with Thursdays to Mondays on “week one” and Wednesday evenings to Thursday evenings on “week two.”

c) S.C-J. and her partner S.H. live together in North York and share a child who is not the subject of any child protection involvement.

d) The parties have had five historical intakes and/or investigations with the Society with one of those investigations being transferred to ongoing services for support. Previous openings spanned between the years 2015 – 2023. Concerns in those openings related to C.C-J being admitted to hospital due to concerns with her mental health and concerns raised by each parent about the safety and emotional well-being of the child in the other parent’s care.

e) The Society opened a file for ongoing services with the family from September 24, 2021 to January 4, 2023.

f) The file was closed on January 4, 2023, as S.C-J. had secured a treatment plan for the child. She had final decision-making authority due to the Superior Court order in place.

[8] The court finds the following facts with respect to the Society’s current involvement:

a) On January 11, 2023, the Society received four separate calls. The Society received reports that the child was making complaints about not wanting to live with S.C-J., he was described as depressed and was expressing suicidal ideation.

b) On January 13, 2023, the Society worker Ms. Dent followed up with the principal at the child’s school. The principal reported high levels of conflict between the child’s parents, that the school was finding the conflict difficult to manage and that the child was walking around the school conveying a sense of sadness.

c) On January 16, 2023, Ms. Dent spoke to S.C-J. She was seeking Dialectical Behavioural Therapy (DBT) for the child.

d) On January 31, 2023, the child was transported to the Hospital for Sick Children (HSC) by the Toronto Police after reportedly leaving school without permission, attending at C.C-J.’s home unannounced and telling her that he would stab himself if he had to go back to S.C-J.’s home.

e) The same day, the Society’s Emergency After Hours Service received a call from the HSC stating that the child was assessed and prepared for discharge but was refusing to go to S.C-J.’s home. It was reported to the Society that S.C-J. was not consenting to any other discharge plan so the HSC agreed for the child to stay one further night until a plan could be made for where the child was to go.

f) On February 1, 2023, Ms. Dent attended at the HSC to attempt to work out a plan of where he would go. HSC staff reported that the child was not eligible for a diagnosis. However, they advised that they had significant concerns if he were to return to S.C-J.’s home as this was where he was reported having feelings of self-harm. The child was also reporting to HSC staff verbal and emotional abuse at S.C-J.’s home.

g) The family could not agree as to where the child would go that night. The Society then made the decision to bring the child to a place of safety. The Society did not immediately place him in the care of C.C-J. as it needed to investigate the potential risk posed by her mental health.

h) The child agreed to be placed with the aunt. Preliminary checks were done on the aunt and she agreed to care for the child and participate in a kinship assessment. The child was subsequently brought to a place of safety and placed with the aunt.

[9] The Respondent mother C.C-J. is seeking an order placing the child in her temporary care under a supervision order. She is relying on the following evidence:

a) She is the child’s biological mother and has been involved in the child’s primary care since his birth.

b) In March 2017 she voluntarily admitted herself into hospital to seek mental health support during the separation.

c) She exercised supervised parenting time with the child without issue from mid-2017 until March 2020 first with APCO and later with Brayden Supervision Services.

d) The Office of the Children’s Lawyer (OCL) undertook two separate investigations with respect to the family, one on September 2018 and the second time in April 2019. The April 2019 OCL report recommended that supervised access for C.C-J. gradually decrease and be phased out within five months. S.C-J. did not consent to the recommendation and the supervision continued until May 2021.

e) C.C-J. has been employed at the St. Felix Centre for over five years.

f) She attached a letter dated February 2, 2023 from Dr. Grant, her longstanding family doctor, confirming that she has remained “remarkably healthy and mentally stable” since the hospitalization in March 2017 and that she has been “exemplary in self care and resourcefulness.

g) Her former psychiatrist Dr. Maerov provided her with psychiatric care from April 2017 to June 2021 at which time it was determined that no further appointments are needed. A letter dated March 8, 2023 from Dr. Maerov was attached that supports the position that she is of sound mind and that there are no safety concerns with respect to increased and unsupervised parenting time for her and the child.

h) She has not been taking psychiatric medication for the past five years on the advice of her psychiatrist.

i) She has taken relevant parenting courses.

j) She is cooperative with the Society.

k) She is supportive of therapeutic support for the child, consistent with the recommendations of health care professionals. She has connected the child to the Possibilities Clinic and is proposing culturally appropriate therapy for the child at the Caribbean African Canadian Social Services. (CAFCAN)

[10] The Respondent mother S.C-J. is the primary caregiver prior to intervention by the Society. She is seeking a temporary supervision order placing the child in the care of the current kin caregiver, the aunt. She is relying on the following evidence:

a) A 2001 letter from C.C.-J’s prior psychiatrist Dr. Flynn reporting her mental health diagnoses. Dr. Flynn treated C.C-J. between 2000 and 2017.

b) C.C-J. has had repeated hospitalizations for mental health concerns. The most recent occurring in 2017, a voluntary hospitalization for 21 days for suicidal ideation.

c) A 2007 Neuropsychological Assessment Report on C.C-J. by Dr. Kurzman.

d) The child has special needs.

e) For many years the child took Biphentin to regulate his ADHD. The child has been resistant to continue to take the medication.

f) C.C.-J. has taken the child to a naturopath and acupuncturist without the knowledge or consent of S.C-J.

g) A letter dated November 19, 2021 by the child’s pediatrician Dr. Flanders referring him to Dr. Richards for an assessment. He confirms the child’s anxiety/emotional dysregulation which is severely impacted when not on medication. He also confirms that the child experiences thoughts of wanting to die, has somatic anxiety symptoms, has been aggressive to primary (custodial parent) and triggered by limits and boundaries.

h) A letter dated April 3, 2023 by consultant pediatrician Dr. Richards. She states that the child suffers from the following:

a. Attention Deficit Hyperactivity Disorder (ADHD): The treatment comprises understanding and strategies. Medication is indicated when understanding and strategies are insufficient.

b. Emotional Dysregulation: The child shows overarousal and extremes of his emotions. (ie. Threatening self-harm and threatening to run away).

c. Anxiety: the child demonstrates separation anxiety, strong avoidance and frequently misinterprets his environment to be dangerous. (eg: ADHD medications being poisonous).

d. Emotional Trauma: The child has experienced ongoing differences between his two mothers, many transitions and lack of consistency.

e. Dr. Richards recommends structure, a review of his ADHD medication with Dr. Flanders, counselling (DBT is first choice) and a definitive legal clarification of residence, visitation and availability for therapy.

i) S.C-J. supports the use of DBT therapy to assist the child. She would also consider other types of therapy for example the therapy at Lumenus, George Hull Centre supports. She prefers wraparound therapeutic intervention.

j) S.C.-J. believes that C.C-J. has been encouraging the child to resist his medication.

k) S.C.-J. believes that C.C-J. has been alienating the child from her and her family.

[11] The current kin caregiver the aunt is supporting a temporary order placing the child in the care and custody of his mother C.C-J. She is relying on the following evidence:

a) Her sister C.C-J. has always provided a loving and nurturing environment for the child’s development. She had frequent visits with her sister and the child from his birth until the parties’ separation.

b) She believes that the relationship between S.C-J and C.C-J. was oppressive to her sister.

c) She made attempts to spend time with the child following the separation but was only permitted sporadic contact by S.C-J.

d) The child has advised her that he does not feel safe and secure with S.C-J.

e) She is willing to support C.C-J. with whatever support she and the child require.

[12] The Society is seeking a temporary order placing the child in the care and custody of his mother C.C-J. with terms and conditions. It is relying on the following evidence:

a) The Society has verified a concern that the child is at risk of harm from the emotional impact of his exposure to post-separation caregiver conflict.

b) The Society is concerned about both the risk of parental alienation by S.C-J. of C.C-J. and the risk of parental alienation of S.C-J. by C.C-J.

c) The child has expressed that he does not want to live with S.C.-J. or to have any access to her or contact with her at this time.

d) The Society worker Ms. Dent interviewed Mr. Finkelstein on May 29, 2023, the child’s principal at school. He confirmed that he has no worries or concerns about C.C-J. He describes her as proactive and engaging as a parent. He has seen an improvement in the child’s demeanour since he relocated to the home of the aunt. He reported that the child is doing well in completing tasks and assignments and is engaged in the school musical, but he is having a hard time staying focussed and needs frequent reminders.

e) The child continues to refuse to take ADHD medication since being in the aunt’s care. He and his caregiver have sought alternative support through the Possibilities Clinic which specializes in diagnosing, testing and treating ADD/ADHD.

f) The Society worker Ms. Dent interviewed Dr. Flanders who reported that the child had not been diagnosed with a personality disorder or trauma. Further that he was not convinced that DBT was better than any other type of counselling. However, he states that the child would benefit from counselling.

g) The Society has found C.C-J. to be cooperative. She has welcomed the supports of the Society. She has been open to suggestions for counselling, such as CAFCAN and Kuponya and has followed through on home visits and community appointments with the Society.

h) On April 26, 2023, Society worker Ms. Dent interviewed C.C-J’s psychiatrist Dr. Maerov. He reported that C.C-J. was originally diagnosed with Borderline Personality Disorder, but had outgrown the symptoms. This was achieved through her participation in therapy, maturing, reducing her triggers and developing tools to deal with her triggers. He confirmed that C.C-J. had completed all of her DBT courses successfully.

[13] The child’s counsel reports that the child is a 12 year old child who is clear and consistent in his views and preferences. He wishes to be placed in the care of his mother C.C-J. Further, he does not want any in person or virtual visits with his mother S.C-J. at this time.

Part Two – Legal Considerations

Temporary Care and Custody Test

[14] Subsection 94 (2) of the Child, Youth and Family Services Act (CYFSA) reads as follows:

s.94(2) Custody during adjournment – Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of that child immediately before intervention under this Part;

(b) remain or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

c) be placed in the care and custody of a person other than the person referred to in Clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

(4) Criteria – The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).

(5) Placement with a relative, etc.- Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child’s best interests to make an order under clause (2)© to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

(8) Access – An order made under clause 2© or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.

(10) Evidence on adjournments – For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

(11) Child’s views and wishes – Before making an order under subsection (2), the court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.

[15] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., 2000 ONSC 21157, [2000] O.J. No. 2273 (Ont. Sup. Ct.).

[16] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) of the Act): See: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.

[17] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. See: CCAS of Toronto v. J.O.1, 2012 ONCJ 269.

[18] At this stage, the Society does not have the higher burden of showing that on the balance of probabilities there is an actual risk to the child in the parent’s care: See: CCAS of Toronto v. M.L.R., 2011 ONCJ 652. See also Children’s Aid Society of Oxford County v. C.O., 2020 ONCJ 400 at para 12; The Children’s Aid Society of Ottawa v. S.G., 2021 ONSC 2260.

[19] The Act gives priority to the person who had charge of the child prior to society intervention under Part V of the CYFSA (subsection 94 (2) of the CYFSA).

[20] The onus is by its nature not a difficult onus for the agency to meet since the standard of proof is made low by the very wording of the Act: “reasonable” grounds, a “risk”, and “likely” harm, and “adequate” protection for the child. This illustrates that the order sought is intended to be a temporary order while the matter moves through the courts and the focus is on protecting the child in the short term. Children’s Aid Society of Dufferin County v. A.T., 2011 ONCJ 52.

[21] Section 94(5) of the CYFSA not only supports clause (c) of s. 94(2), it prohibits the court from making an order placing the child in the temporary care and custody of a society until it has considered whether it is in the child’s best interests to place the child with a relative of the child or a member of the child’s extended family or community. Section 94(5) makes it clear that an order for temporary care and custody to a society is the last resort, to be made only if an order placing with kin is not appropriate.

Part Three – Analysis

[22] The court is obliged to consider placement first with the pre-intervention caregiver. The next consideration would be a placement with C.C-J. as the child’s other available and involved parent. A further option would be the care of extended family such as the aunt.

[23] The child is 12 years of age and is in Grade 7. He has clearly expressed his desire to not return to the care of S.C-J. the pre-intervention caregiver. He has expressed this both in his words and his actions. He left school without permission and went to his mother C.C-J.’s home. He expressed suicidal ideation at the prospect of a return to the home of S.C-J. He is refusing all contact with S.C-J. at this time. He wants to reside in the care of his mother C.C-J.

[24] The court finds on the basis of this evidence, that the Society has met its onus of presenting credible and trustworthy evidence that the child would be at risk of harm if returned to his pre-intervention caregiver which cannot be mitigated by a supervision order.

[25] S.C-J., the pre-intervention caregiver in this case, is not seeking the child’s return to her care on this motion. Her position is that he should remain in the temporary care of his aunt. Her position is that if he is placed in the care of his mother C.C-J. he will not receive proper medical care for his special needs and he will be alienated from her and her extended family. She further suggests that the mental health stability of C.C-J. is fragile and that she cannot manage the primary care of their son.

[26] The court finds that there is credible historical evidence that the mother C.C-J. experienced mental health challenges in the past. However, there is current credible and trustworthy evidence before the court from her family doctor (Dr. Grant) and most recent psychiatrist (Dr. Maerov) that she has successfully recovered from these issues and has achieved psychological stability. Further, there is positive support from the observations of the Brayden Supervision service and the child’s current principal with respect to her parenting skills.

[27] The court finds that while there is evidence that the mother C.C-J. explored naturopathy and acupuncture to treat the child in the past, there is no evidence that she is resistant to seeking other supports to address his needs. She has connected the child to the Possibilities Clinic for his ADHD and to CAFCAN for counselling. According to the Society, she has been engaging productively with the Society in this process.

[28] The court finds that there is a genuine fear expressed in the evidence from S.C-J. that C.C-J. took steps to alienate them from the child’s life. This is always a live concern in cases involving a volatile separation.

[29] However, the evidence submitted supporting this fear from the perspective of S.C-J. is not compelling at this juncture. This concern does not rise to the level of a risk that would justify a denial of a twelve-year old child a temporary placement with the parent with whom he feels safe and secure at this time.

[30] The court finds that the temporary placement of the child with his mother C.C.-J. under terms and conditions is appropriate in this case. It is the least intrusive option that is proportional to the degree of risk in this case. It mitigates the risk identified. It aligns with the child’s views and preferences. It provides him with the support required to meet his emotional and psychological needs at this time.

[31] A placement with the aunt is both more intrusive than a placement with C.C-J. and does not fully mitigate the risk that the child will exercise self-help and go to his mother C.C-J.’s home. This placement would not be in his best interests.

Part Four – Temporary Order

[32] The court makes the following temporary order:

a) The child shall be placed in the temporary care and custody of C.C-J. with the following terms and conditions:

a. C.C-J. shall allow the Society worker(s) to attend her home for announced and unannounced visits.

b. C.C-J. shall allow the child to meet privately with the Society worker at home, in the community or at school.

c. C.C-J. shall sign consents to the release of information between third party collaterals and the Society, as requested by the Society.

d. C.C-J. shall attend all medical, developmental or therapeutic appointments for the child that are required to help his development and must follow through on recommendations that are made from those appointments and the professionals involved in his care.

e. C.C-J. shall keep the Society worker(s) up to date regarding her address, contact information, and family constellation and shall advise the Society of any change to the same within 48 hours of such change.

f. C.C-J. shall follow the Society’s direction and any court orders with respect to the child’s access with S.C-J. and facilitate access as directed.

g. Neither parent will speak negatively about the other parent to the child or in his presence.

h. C.C.-J. and S.C.-J will not expose the child to adult conflict.

b) Temporary access to the child by his mother S.C-J. shall be at the discretion of the Society with regard to duration, frequency, level of supervision and location and shall keep into consideration the views and preferences of the child.

[33] This Application will return before the court for a case conference on July 18, 2023 at 2 pm for an appearance on Zoom.

Released: June 20, 2023 Signed: Justice Szandtner