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: March 19, 2024 Court File No.: CFO-23-1093-000

BETWEEN:

Catholic Children’s Aid Society of Toronto Applicant

— AND —

W-D Respondent

-and –

ZF Respondent

-and-

MY Respondent

-and-

LY Respondent

Before: Justice W. Kapurura

Heard on: March 4, 2024 Reasons for Judgment released on: March 19, 2024

Counsel: Rachel Buhler, counsel for the applicant society Subha Anand, counsel for the respondent, ZF Keyshawn Anderson, counsel for the respondents MY & LY J. Richard Forget, counsel for AR, a party affected by this motion No appearance by or on behalf of W-D, even though served with notice.

JUSTICE W. KAPURURA:

Part One – Introduction

[1] The Catholic Children’s Aid Society of Toronto (the society) brought a motion within its protection application seeking to place Z (the child), in the temporary care of the respondent paternal grandparents, MY and LY (the grandparents), subject to terms of supervision. The child is 34 months old.

[2] The child is currently in the joint care of the father (ZF) and his sister, AR (the aunt).

[3] The society seeks an order that temporary access by the respondent, W-D (the mother) takes place at a minimum of once each week with the level of supervision, location, and duration at the society’s discretion. It further seeks an order that temporary access by the father, take place at a minimum of twice each week, with the level of supervision, location, and duration at the society’s discretion.

[4] The grandparents support the society’s request to have the child placed in their temporary care and custody, pending the hearing of the society’s application.

[5] The father seeks an order that the child remain in his joint care with the aunt. The mother did not participate in this motion.

[6] The aunt, who is affected by this motion, seeks an order that the child be placed in her care.

[7] The father, the aunt and the grandparents filed materials and were legally represented.

[8] The court must address the following issues:

a. Who had pre-intervention charge of the child? b. If the court finds that the father and the aunt had pre-intervention charge of the child, it must determine: i. Whether there are reasonable grounds to believe that there is a real possibility that, if the child is returned to their care, it is more probable than not that she will suffer harm. ii. Whether the child can be adequately protected by terms or conditions of a temporary supervision order while in their care. c. If the court finds that the father, the aunt, and the grandparents had charge of the child, it must determine: i. Which caregivers are better able to provide for the child’s needs, having regard to the protection concerns raised by the society? ii. Who should the child be placed with? d. What terms of access are in the best interests of the child?

Part Two – Background facts

[9] The mother is 18 years old. The father is 22 years old.

[10] The father is currently being charged with the following offences:

Offence	Offence date
Assault (the mother is the complainant)	May 16, 2023
Fail to comply with an undertaking	June 19, 2023
Fail to attend court	January 18, 2024

[11] The father’s release conditions prohibit him from contacting the mother except pursuant to a family court order. The aunt is acting as his surety.

[12] The society was involved with the mother as a youth and remained involved after she became pregnant as a youth. It continued to work with her on a Voluntary Youth Service Agreement (VYSA) and remained involved after the child was born.

[13] The society’s protection concerns relate to the following allegations:

a. The mother’s transiency. b. Domestic violence between the parents and police involvement. c. The child’s exposure to conflict. d. The parents’ failure to abide by no-contact criminal court orders between them.

[14] Initially, the parents resided in the grandparents’ home after the child was born in the spring of 2022.

[15] In June 2022, the society’s child protection worker, Ms. Jacqueline Stone, met with the parents in the grandparents’ home to discuss allegations and concerns relating to domestic conflict between them. The child appeared to be well in the home.

[16] In the spring of 2023, conflict started occurring in the home and police were called to attend. The mother left the home and found a home in Peel Region. The child remained in the home under the primary care of the grandmother. The father remained in the grandparents’ home.

[17] In May 2023, the society learned that the mother had been arrested for shoplifting in Waterloo. It also learned that both parents had recently been charged in relation to incidents that occurred between them in January, April, and May of 2023. The mother was charged with mischief and assault. The father was charged with assault. The release conditions for the parents required that they do not contact each other.

[18] It is not clear whether the mother had criminal charges involving the grandparents. However, according to the society, there was ‘an order’ prohibiting the mother from contacting the grandmother resulting from an incident that occurred in May 2023.

[19] Despite the restrictions on contact, the mother returned to the grandparents’ home in the summer of 2023. Conflict in the home started again after she returned.

[20] On September 13, 2023, the grandmother contacted the Children’s Aid Society of Toronto (CAST) reporting that the mother had removed the child from daycare without her knowledge. She reported that the mother did not have stable housing, clothing, or necessities for the child. She also called the police.

[21] The society contacted the mother on September 13, 2023, and she asked the society to stop calling her. She refused to disclose her whereabouts.

[22] When the mother returned the child to daycare on September 14, 2023, she was arrested on an outstanding warrant for failure to attend court. The child returned to the home of the grandparents.

[23] The grandparents notified the society on October 27, 2023, that they were going to Jamaica for a month in December 2023, and the parents had revoked their consent to allow the grandparents to travel with the child. They were concerned about leaving the child in the care of either parent. The society worker told the grandparents that given the concerns raised, the society might bring the matter to court and obtain orders for temporary custody in their favour.

[24] On November 3, 2023, the grandmother and the father met with a society worker, and the following was disclosed:

a. The grandmother stated that the father was not attending school, was not working, and was smoking marijuana regularly. b. The grandmother stated that the father was inviting the mother to the home for dinner, in breach of their no-contact orders. The parents had confirmed that they planned to spend Christmas together while the grandparents were out of the country. c. The father stated that he was planning to complete his high school education in January 2024 and attend a construction program.

[25] On November 21, 2023, the grandmother advised the society of the following:

a. The mother attended the home on November 17, 2023, and tried to remove the child from the home. A physical altercation ensued between the mother and the grandmother, as the grandmother tried to prevent the mother from leaving with the child. b. The father arrived with his sister (the aunt). The aunt helped pack up the father and the child’s belongings. c. The grandmother called the police. The society was also contacted. The society worker told the police that the child should be returned to the grandmother’s care. The police met privately with the aunt and the father. They returned the child to the grandmother. The child immediately ran to her grandmother.

[26] For the second time, the society told the grandmother on November 22, 2023, that it would start a protection application and seek an order placing the child in her care.

[27] The society did not immediately commence a protection application as stated.

[28] On November 23, 2023, the parents executed an “Authorization for temporary guardianship of a minor” with the assistance of a lawyer. The document indicated that they had granted temporary guardianship of the child to the paternal aunt from November 23, 2023, until May 23, 2024. The aunt signed a consent to the temporary guardianship. The parents provided the document to the child’s daycare. They did not notify the grandparents of this document and their plans. The child remained in the grandparents’ home at this time.

[29] The father arranged with the grandparents to have a visit with the child at the aunt’s residence from Saturday, November 25, 2023, with drop off at daycare on November 27, 2023. On November 27, 2023, the aunt told the society that she was planning to pick up the child from daycare since she now had temporary guardianship of her. She stated that she had not told the grandmother as they did not talk. The child then remained in the care of the father and the aunt after November 27, 2023. The child has not returned to the care of the grandparents since then.

[30] On December 13, 2023, the grandparents left for a long-planned vacation to Jamaica. At the time of their departure, the society had not commenced a protection application. The grandparents informed the society that they remained committed to having their grandchild returned to their care and would return in time for any court proceedings in the matter.

Part Three – Procedural history

[31] The society filed its protection application on December 22, 2023. The first appearance on the protection application was on January 30, 2024. The grandparents were not listed as parties to the application.

[32] The society filed a motion ahead of the first appearance seeking an order for temporary care and custody of the child in favour of the grandparents. At the first appearance, the society’s counsel advised the court that they had amended their motion and had changed their position. They were now seeking a temporary order placing the child in the joint care of the aunt and the father.

[33] Given the last-minute amendment, the society requested an adjournment.

[34] A temporary order was made on a without prejudice basis, placing the child in the joint care of the father and the aunt. The court then asked the society to investigate whether the grandparents were parties to the proceeding. The society’s motion was then adjourned to return in February 2024.

[35] On February 20, 2024, the father appeared with counsel, Ms. Subha Anand. The mother was assisted by duty counsel. Mr. Keyshawn Anderson appeared on behalf of the grandparents. The court was advised that the father had recently been arrested for breach of his bail conditions. The society’s counsel told the court that the society was changing its position again on the placement issue, that is, reverting to its original position of seeking placement with the grandparents. All parties agreed to adjourn the matter, status quo, to March 4, 2024, to allow the parties to file their materials for the motion.

[36] This motion was heard on March 4, 2024. The court’s decision was reserved.

Part Three – Legal considerations for placement on a temporary care and custody hearing

[37] The legal test for the court to apply on a temporary care and custody motion is set out in subsections 94 (2), (4), (5) and (11) of the Child, Youth and Family Services Act, 2017 (the Act) that read as follows:

94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

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

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

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

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

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

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

(11) 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.

[38] 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 the child is returned to a pre-intervention caregiver, it is more probable than not that she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms or conditions of a temporary supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test that the society has to meet.

[39] 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.

[40] 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.

[41] Subsection 94 (10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Jewish Child and Family Services of Toronto v. A.K., 2014 ONCJ 227, at paragraph 18; CAS of the Regional Municipality of Waterloo v. S.S.H., 2019 ONSC 5365.

Part Four – Who had charge of the child?

4.1 – Legal considerations

[42] The Act gives priority under clauses 94(2)(a) and 94(2)(b) to a person who had charge of the child immediately before intervention under Part V.

[43] All parties in this motion did not fully address the issue of the pre-intervention charge of the child. The society initially took the position that the grandparents had charge of the child before intervention. After questioning by the court, counsel for the society changed her position and stated that the father and the aunt had charge of the child. Neither the father nor the grandparents specifically addressed the issue.

[44] The term “charge” is not defined in the Act.

[45] In Children’s Aid Society of Algoma v. G.(T.), para. 15, Justice J. Kukurin stated that “Charge” has connotation of authority and responsibility. “Charge” of a child suggests some established relationship, not something transient or temporary.

[46] In Children’s Aid Society of Toronto v. A.(S.), 2008 ONCJ 348, para. 48, Justice R. Spence stated that there clearly is a difference between the meaning of “custody” and “charge”. There could be many instances where one person has custody of a child, but another person has “charge” of that child. In the same decision, Justice Spence also noted (para 12) that the question of who had “charge” of the child is not determined by which person had actual physical or de facto custody of the child at the time of apprehension.

[47] In CCAS of Toronto v. W.I., [2014] ONCJ 620, a child lived with the mother and the society told the mother that it would apprehend the child if the child was not placed with the father. After the child was transferred to the father’s care, the society then delayed two months in bringing the case to court. The court found that both parents had charge of the child and the mother should not lose her status due to the society’s delay. See:

[48] The test in subsection 94 (2) is designed to set up a rigorous standard for society intervention in the life of a person who had charge of a child. The court does not and should not lightly eliminate their subsection 94 (2) rights. See: Children’s Aid Society of Toronto v. C.S. and K.J., 2015 ONCJ 111.

[49] The court should be cautious in taking away a person’s rights under subsection 94 (2) of the Act. See Catholic Children’s Aid Society of Toronto v. W.I., 2014 ONCJ 62, para. 43.

4.2 – Analysis

[50] In this case, there was no pre-existing domestic order addressing decision-making responsibility or parenting time for the child.

[51] The society became involved with the mother before the child was born and remained involved after the child was born. The society’s protection concerns relate to the parents. When the father attended with the paternal aunt on November 17, 2023, to remove the child from the grandparents’ home, the society’s family service worker told the police that the child ‘should be returned’ to the grandparents.

[52] After the police met privately with the aunt and the father, they returned the child to the grandmother. The society should have immediately commenced a protection application following this incident.

[53] Unfortunately, the society waited four weeks before commencing the protection application.

[54] The second major event in the child’s life that should have prompted the society to immediately bring the matter to court was when the father and the aunt kept the child following the November 25, 2023, visit. Again, this was a missed opportunity, at the expense of the child’s safety and well-being.

[55] It is not in dispute that both parents had agreed to have the child reside in the home of the paternal aunt. It is also undisputed that there was no existing court order relating to the child’s residential arrangements at the time. At the same time, both parents and the aunt were fully aware of the society’s involvement with the family, and the society’s protection concerns relating to the parents. In that context, initially, the mother took it upon herself to use force to remove the child from the grandparents’ home. When she failed, the father and the aunt attended and attempted to remove the child. After they were told by the police (at the instruction of the society) to return the child to the grandparents, they decided to keep her following an access weekend.

[56] The court agrees with Justice R. Spence that a caregiver cannot acquire “charge” of the child through self-help means. See Children's Aid Society of Toronto v. A.(S.) and R. (M.), 2008 ONCJ 348, para. 59. Justice Spence found that two parents had joint charge of a child, where the mother improperly removed a child from Montreal to Toronto. He made this determination even though the child had been living with the mother for seven months at the time of the later removal by the Society.

[57] A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. See: Clement v. Clement, 2010 ONSC 1113 (SCJ); Rifai v. Green, 2014 ONSC 1377; Rifai v. Green, 2023 ONCJ 103.

[58] As per the society’s evidence, the grandmother was the primary caregiver for the child before the incident of November 2023 and had actively participated in caring for the child since birth. Around that time, the mother was not in the home and the father (who had recently moved into his sister’s home), had been acting as a secondary caregiver to the child in the grandparents’ home. On November 3, 2023, the grandmother told a society worker, in the presence of the father, that she had been the child’s primary caregiver but had ‘recently taken a step back’ to allow the father to take a lead role in caring for the child. The father did not challenge this information during the meeting.

[59] This case presents a unique set of facts in that the parents used self-help tactics and the society created a status quo by delaying in bringing the matter to court. On the other hand, an argument can also be made that the grandparents acquiesced to the status quo when they decided to travel internationally, leaving the child in the care of the father and the aunt.

[60] The court will not condone the parents’ and the aunt’s self-help tactics by finding the aunt to have pre-intervention charge of the child.

[61] The court finds that the grandparents and the father had joint charge of the child before the society’s intervention. The grandparents and the father were involved in caring for the child prior to the November 27, 2023 when the child was not returned to the grandparents’ home.

[62] It would be contrary to public policy to exclude the grandparents from this status based on the father’s (and the parents’) unilateral action. In Children's Aid Society of Toronto v. A.(S.), 2008 ONCJ 348, Justice Spence concluded that when it comes to children, parents must be discouraged from engaging in self-help (paras 52-53).

[63] It also appears that the document that the parents prepared granting ‘guardianship’ of the child to the aunt may be seen as an attempt by the parents to shield themselves from the eyes of the society. The society had serious concerns about domestic conflict between them, including multiple breaches of their no-contact orders from the criminal court. It appears that the parents were not happy that the grandparents were reporting their interactions to the society.

Part Five – Analysis on temporary placement of the child

[64] The court agrees with the society that the allegations about domestic conflict, the child’s exposure to conflict, the mother’s transiency and the parents’ failure to abide by their no-contact criminal court conditions remain child protection concerns.

[65] The father plans to have the child remain in his joint care with the aunt. He will continue to reside in the aunt’s home.

[66] The evidence set out the following positive factors about the father and his plan:

a. He is enrolled in a parenting program at Rosalie Hall. He is also enrolled in the PARS program. b. The child has remained in his joint care with the aunt since November 27, 2023. c. There have not been any reported incidents since the child came into the aunt’s home. d. He continues to have the support of the aunt. e. The child continues to attend daycare and is arriving on time. f. He has remained in contact with the society since November 27, 2023.

[67] The aunt seeks to have the child placed in her temporary care and custody. The following are positive factors about her plan:

a. The child has remained in her home since November 27, 2023. b. There are no reported concerns about her caregiving. c. She supports the child remaining in daycare.

[68] Notwithstanding these positive factors, the court has serious concerns about the father and the aunt, provided in detail below.

[69] Further, even if the court had found that only the father and the aunt had pre-intervention charge of the child, the court would still not have placed the child with them, either individually or jointly. The court would have found that the society has satisfied the two-part test under subsection 94(4) of the Act. There are reasonable grounds to believe that there is a real possibility that, if the child is placed with the aunt or in the joint care of the father and the aunt, it is more probable than not that she will suffer harm, for the following reasons:

a. As per the evidence, the father has maintained contact with the mother in breach of their no-contact orders. He was inviting her for dinner at the grandparents’ home before he moved to the aunt’s residence. He also coordinated with her to prepare and execute the temporary guardianship document in favour of the aunt. Both parents appear to have no respect for the no-contact orders between them. In Dumont v. Lucescu, 2015 ONSC 494, the court stated that:

43 It is trite to say that an order is not a suggestion, and that compliance is not optional. Further, non-compliance must have consequences. Protection of the integrity of the administration of justice is at stake if a litigant willfully disobeys a court order (see Ferguson v. Charlton, Gordon v. Starr, and Hughes v. Hughes, [2007] O.J. No. 1282 (Ont. S.C.J.)).

b. The aunt, whom he is proposing to jointly care the child with, filed an affidavit accusing him of ‘violence and substance abuse issues”. The grandmother also made allegations of substance misuse against him. In the fall of 2023, she told the society that she was concerned about his caregiving as he smoked marijuana regularly and locked the door. In his materials, he has not provided sufficient details to address these allegations. He only makes a short statement that he has ‘stopped using drugs’, with no further details or background information on the issue. This issue requires further investigation by the society. c. The father and the aunt used self-help on November 17, 2023, when they attempted to remove the child from the grandmother’s home. They were aware that the society was involved and that the society had protection concerns with respect to the parents. d. The aunt has demonstrated that she cannot separate her role as a caregiver, from her conflict with the grandmother. After initially agreeing to arrange for the grandparents’ access in February 2024, access did not proceed and the grandmother’s calls to her did not come through. She later confirmed that she had blocked the grandmother’s phone number. She initially told the worker that she had not received the grandmother’s text messages and then turned around and stated that she blocked her. e. The affidavit materials filed by the aunt are replete with negative information about the grandmother, as opposed to providing sufficient details about her plan to assist the father in caring for the child. f. The aunt uses inflammatory and accusatory language that is not related to the child’s best interests. She accuses the grandmother of having a gambling addiction, stating that the grandmother “brought me to bingo at the age of 19”. The society has not identified any challenges with respect to the grandparents’ ability to care for the child. g. The court is concerned that the aunt will add conflict to this matter. Despite the grandparents having been involved with the child since birth, she accuses the grandmother of “getting involved for no reason but to spite us” and states that she cannot find a good reason why the grandmother is involved in this matter. Any further conflict in this matter is not in the child’s best interests. h. The aunt’s plan is not pragmatic. She is the father’s surety, and he is required to reside in her home. If the child is placed in her care, the father will obviously play a caregiving role while he is in her home.

[70] Terms of supervision would be inadequate to safely protect the child in the care of the aunt or in the joint care of the father and the aunt for the following reasons:

a. The father has shown poor judgment as a parent. After the parents revoked their consent to allow the grandparents to travel with the child on their trip to Jamaica in the fall of 2023, he told the society that he planned to have joint care of the child with the mother over Christmas in 2023. However, there are existing no-contact orders restricting contact between them. b. On November 6, 2023, the father refused to show his bail conditions to a society worker, stating that it was private. c. The father misled the grandmother when he asked her for a visit with the child for the weekend of November 25, 2023, when in fact he was planning to keep the child in the aunt’s home after both parents had executed a guardianship document in favour of the aunt. d. The aunt has exhibited poor judgment. She was complicit in trying to remove the child from the grandparents’ home on November 17, 2023. e. There are concerns about the aunt’s ability to cooperate with the society. She was requested by the society to provide a police record check. On February 7, 2024, she provided a document from New Glasgow police (Nova Scotia), stating that she had no criminal record. She was asked by the society to provide a vulnerable sector check. Upon further investigation by the society, it was discovered that she was under a court condition not to possess a firearm. She had not provided this information to the society. When she was contacted about the firearm condition, she told the society worker that she wanted to speak to her lawyer before discussing it further. To date, no further information has been provided. f. There are concerns that the aunt will not be able to facilitate a positive relationship between the child and the grandparents. Even after the grandparents’ access started, she continued to have the grandmother’s phone number blocked, insisting on email communication. g. There are concerns about the aunt and the father’s ability to comply with supervision terms, including access terms. When they met with the society worker in February 2024, they appeared reluctant to facilitate access between the child and the grandmother. The society’s evidence is that both appeared ‘quite upset’ at the idea of giving the grandmother more access.

[71] The evidence set out the following positive factors about the grandparents’ plan:

a. The grandparents have been in the child’s life since birth. b. The child resided primarily in the grandparents’ home since birth until both parents placed her with the aunt in November 2023. c. On November 6, 2023, the father confirmed to the family service worker that the grandmother had been a good support to the child. d. The grandparents’ interactions with the society and with the child show that they remain child focussed. e. The child has a positive relationship with the grandparents. After the father and the aunt tried to remove the child on November 17, 2023, when they returned her to the grandparents after the police got involved, the child ran to her grandmother. f. The conflict between the parents and the grandparents appears to be stemming from the grandparents asking the parents to do the right thing. g. The society has not identified any concerns regarding the grandparents’ ability to care for the child.

[72] In reviewing the best interest factors under subsection 74(3) of the Act, the court makes the following findings:

a. The grandparents are better able to meet the physical, mental, and emotional needs of the child than the father and the aunt. b. The grandparents are able to permit the child to maintain a positive relationship with both parents. c. The grandparents are able to facilitate the child’s access with the parents. d. The grandparents are able to protect the child. e. The grandparents are able to work cooperatively with the society to address any protection concerns that may arise. f. The grandparents are likely to report to the society should the parents breach any existing court orders. g. The grandparents provided a consistent home to the child from birth until she was removed by the father in November 2023. Placing the child with the grandparents will allow the child to return to the home that she has known since birth. h. There are risks with the father’s plan, including the risk that the father and the mother will continue to breach their no-contact orders. There are further risks that, should the parents come into contact, the child will be exposed to conflict between her parents.

[73] For the reasons provided in paragraphs 70 and 71 above, the aunt’s plan and the father’s plan are not in the child’s best interests.

[74] The child shall be placed in the temporary care and custody of the grandparents pursuant to clause 94(2)(b) of the Act, subject to the supervision of the society. The supervision terms suggested by the society in its motion are appropriate and will be ordered, subject to minor changes.

Part Six – Access

[75] The society proposes that the father’s access occur at a minimum of twice per week, with location, duration, and supervision at its discretion. It also proposes that the mother’s access occur at a minimum of once per week, with location, duration, and supervision at its discretion.

[76] The father did not provide a proposal for his access if the child is removed from his care.

[77] The court is not in a position to make minimum terms of access in favour of the mother given that she did not participate in this motion and did not file materials. Her access at this time shall be at the discretion of the society.

[78] The evidence supports an order for reasonable access in favour of the father for the following reasons:

a. The child has been in his joint care with the aunt since November 27, 2023. b. The child has continued to attend daycare consistently since November 27, 2023. c. The child appears to have a close relationship with him.

[79] The additional terms sought by the society to restrict the father’s contact with the mother while the child is in his’s care are reasonable and will be ordered.

[80] The court will not specify the days and the times that the father will have his access given the uncertainty surrounding his contact with the mother.

[81] The father will have temporary access to the child at a minimum of twice per week, with location, duration, and supervision at the discretion of the society.

Part Seven – Conclusion

[82] A temporary order will go on the following terms:

a. The child shall be placed in the temporary care and custody of the grandparents, subject to society supervision, on the terms and conditions set out in paragraphs 1 (a) to 1(m) of the mother’s notice of motion dated February 21, 2024, subject to the following changes: i. Subparagraph 1(d) shall read as follows: “The grandparents shall not allow the mother into their home”. ii. Subparagraph 1(l) is deleted. b. The mother and the father shall immediately notify the society of any change to their address or contact information. c. The mother and the father shall immediately notify the society of any change to their bail conditions, or if they acquire new criminal charges. The parents shall provide the society with copies of their bail conditions. d. The father shall have temporary access to the child at a minimum of twice per week, with location, duration, and supervision at the discretion of the society. e. The mother’s access to the child shall be at the discretion of the society. The mother’s temporary access shall be reviewed at the next court date.

[83] This matter shall return on April 29, 2024, at 3:00 p.m., for a case conference.

Released: March 19, 2024 Signed: Justice Wiri Kapurura