DATE: July 10, 2024 COURT FILE NO. C41751/07 ONTARIO COURT OF JUSTICE

B E T W E E N:

CHILDREN’S AID SOCIETY OF TORONTO KAREN FREED, for the APPLICANT APPLICANT

• and – H.G. and K.G. THE RESPONDENTS ACTING IN PERSON RESPONDENTS

• and – SIMCOE MUSKOKA CHILD AND FAMILY CONNEXIONS PARTY AFFECTED BY MOTION NOT ATTENDING

MICHAL HAREL, on behalf of THE OFFICE OF THE CHILDREN’S LAWYER, for the subject child, H

JUSTICE S.B. SHERR

Endorsement

Part One – Introduction

[1] The Children’s Aid Society of Toronto (the Toronto society) has brought a motion to transfer this case (the transfer motion) regarding the subject child, H, age 12, to the Superior Court of Justice (Family Court) located in Barrie.

[2] The children’s aid society in that jurisdiction, Simcoe Muskoka Child and Family Connexions (the Simcoe society) consents to the requested transfer. It did not attend on this motion.

[3] The Office of the Children’s Lawyer (the OCL), on behalf of H, takes no position on this motion.

[4] H’s mother is deceased. H’s father is the respondent H.G. (the father). H’s stepmother is the respondent K.G. (the stepmother).

[5] The father and the stepmother oppose the Toronto society’s motion. They were offered the opportunity to consult with duty counsel prior to the court hearing the motion. They both declined.

[6] The court read and relied on two affidavits from the Toronto’s society’s workers, one affidavit from the Simcoe society’s worker and an affidavit filed by the father. The father asked to introduce three additional reports at the hearing of the motion and the court permitted him to do so. The Toronto society, the father and the stepmother made submissions.

[7] The issue for the court to determine is whether there is a preponderance of convenience that favours transferring this proceeding to the court in Barrie.

Part Two – Background facts

2.1 Pre-March 2024

[8] The father had two children with H.R., being HA and H. HA is 17 years old and she is not before the court.

[9] The father and H.R. were involved with the Toronto society from 2007 to 2012. The Toronto society terminated its involvement after H.R. died in 2012.

[10] In July 2013, the father and the stepmother began living together and blended their families. The stepmother had five children of her own. They lived in Barrie starting in March 2014.

[11] In November 2015, the father and the stepmother had a child together.

[12] The Simcoe society apprehended all of the father’s and stepmother’s children on June 16, 2016. The father and the stepmother were criminally charged in relation to injuries that had been inflicted on H.

[13] All of the children, except H and HA, were returned to the care of the father and the stepmother, subject to a 12-month supervision order, in November 2016. This order was eventually terminated in favour of a Voluntary Working Agreement.

[14] In September 2017, the father and the stepmother pled guilty to criminal charges regarding H. The father attests they did this under distress.

[15] On July 6, 2018, H and HA were placed in the extended society care of the Simcoe society. The father and the stepmother signed a statement of agreed facts in support of that order.

[16] The father and the stepmother subsequently appealed that order.

[17] In December 2020, the Simcoe society hired a third-party consultant to work with the family in a culturally appropriate manner.

[18] In June 2022, H and HA were returned to the care of the father and the stepmother. The extended society care order was terminated, and a Voluntary Service Agreement with the Simcoe society was signed for three months.

[19] The father attested that H continued to see his pediatrician in Barrie when he returned home.

[20] H has behavioural issues. The Simcoe society referred H for a psychological assessment while he was in its care. The assessment was completed by Dr. Amber Perry on July 30, 2022. The father filed this report with the court. The report sets out that H has a mild intellectual disability. He struggles with communication, daily living and socialization skills at school and at home. A number of recommendations were made in the report.

[21] H also had a Fetal Alcohol Spectrum Disorder Assessment conducted by MacKenzie Health in Barrie. The father filed this report, dated March 21, 2024. It sets out that H has a number of challenges regarding his memory, attention, impulse control and communication skills. He has impairments in math and in writing skills. A number of recommendations were made in the report.

[22] The Simcoe society met regularly with the father and the stepmother after H and HA were returned to their care and assisted them in obtaining supports for H.

[23] In August 2023, the father and the stepmother requested that the Simcoe society close its file. The Simcoe society agreed.

2.2 March to July 2024

[24] On March 24, 2024, the father contacted the Toronto society asking to place H in its care.

[25] The father deposed that: a) H’s behaviours, including sexualized behaviours, were placing the other children in his home at risk of harm. b) He moved to Toronto with H and HA several weeks before he called the Toronto society on March 24, 2024. They lived in the father’s uncle’s apartment. c) He drove H and HA to school in Barrie each weekday and went to work in Barrie. d) The father, H and HA spent the weekends with the stepmother and the other children in Barrie.

[26] On March 26, 2024, the father advised the Toronto society worker that the children were residing with him at his uncle’s home in Toronto.

[27] On March 27, 2024, the Toronto society worker met with the father, H and HA at the uncle’s home.

[28] The Toronto society subsequently learned that the father had sent H and HA to stay with the father’s cousin and his wife (S) in Pickering on March 26, 2024. The father deposed he intended this to be a temporary placement while he looked for a residence.

[29] H last attended school in Barrie on March 25, 2024. He was not enrolled in school in either Toronto or Pickering.

[30] The father’s cousin and S brought H to the Toronto society’s offices on April 17, 2024. They were no longer willing to have H live with them.

[31] HA continues to live with the father’s cousin and S in Pickering.

[32] H was brought to a place of safety in Toronto on April 17, 2024.

[33] HA and H have made serious allegations against the father and the stepmother. HA alleged that the father and the stepmother abused her physically and emotionally. She claimed that the father and the stepmother used to work at night and leave the children alone. H claimed that the father physically abused him. Both HA and H stated they did not want to live with the father.

[34] On April 22, 2024, on a without prejudice basis, H was placed in the temporary care and custody of the Toronto society. Counsel was appointed for H. The Toronto society’s transfer motion was adjourned.

[35] The father deposed he is now living in Toronto with his uncle. He said he plans to remain in Toronto.

[36] The father and the stepmother both want H to remain in society care and to receive services from the Toronto society.

Part Three – Legal considerations

[37] Subsection 91 (1) of the Child, Youth and Family Services Act, 2017 (the Act) states that territorial jurisdiction means a society’s territorial jurisdiction under section 34 (1) of the Act.

[38] Subsection 91 (2) of the Act sets out that the hearing is to be held in the territorial jurisdiction in which the child ordinarily resides. This is subject to three exceptions set out in clauses 91 (2) (a) – (c). They read as follows:

Place of hearing (2) A hearing under this Part with respect to a child shall be held in the territorial jurisdiction in which the child ordinarily resides, except that, (a) where the child is brought to a place of safety before the hearing, the hearing shall be held in the territorial jurisdiction in which the place from which the child was removed is located; (b) where the child is in interim society care under an order made under paragraph 2 or 4 of subsection 101 (1) or extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the hearing shall be held in the society’s territorial jurisdiction; and (c) where the child is the subject of an order for society supervision under paragraph 1 of subsection 101 (1) or clause 116 (1) (a), the hearing may be held in the society’s territorial jurisdiction or in the territorial jurisdiction in which the parent or other person with whom the child is placed resides.

[39] Here, clause 91 (2) (a) of the Act applies. The child was brought to a place of safety in Toronto.

[40] The ordinary residence of a child does not prevent a children’s aid society from taking steps to ensure the protection of a child, provided that the child is within the applicable society’s territorial jurisdiction. See: Children’s and Family Services for York Region v. B.T., 2024 ONSC 2238.

[41] The test to determine whether a child protection proceeding should be transferred to another territorial jurisdiction is set out in subsection 91 (3) of the Act, which reads as follows:

Transfer of proceeding (3) Where the court is satisfied at any stage of a proceeding under this Part that there is a preponderance of convenience in favour of conducting it in another territorial jurisdiction, the court may order that the proceeding be transferred to that other territorial jurisdiction and be continued as if it had been commenced there.

[42] "Preponderance" is defined in Black's Law Dictionary, 4th ed., (St. Paul, Minn.: West Publishing Co., 1951), as follows:

Greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability.

[43] The onus to establish that there is a preponderance of convenience to hear the proceeding in another jurisdiction is on the party seeking the transfer. See: Children’s Aid Society of Toronto v. A.T., 2010 ONCJ 456.

[44] The preponderance of convenience should be assessed considering the best interests of the child and not necessarily the wishes or convenience of any of the parties. See: Children’s Aid Society of Toronto v. A.T., supra; Durham Children’s Aid Society v. L.S. and S.U., 2023 ONSC 5923.

[45] Courts have considered the following factors when determining transfer motions: a) The child’s connection with each jurisdiction, including where they are enrolled in school. See: Children’s Aid Society of Toronto v. A.T., supra. b) The child’s access to treatment providers and connection to services. Children’s Aid Society of Toronto v. S.D., 2016 ONCJ 31. c) The extent of the involvement of the respective children’s aid societies with the family and which agency has better knowledge about the family. See: Children’s Aid Society of Dufferin County v. K.C., 2019 ONCJ 800; Children’s Aid Society of Toronto v. C.H., 2019 ONCJ 561. d) The ability of the parents and the child, depending on age, to participate in the proceedings. See: Children’s Aid Society of Ottawa v. L.M.B., 2024 ONSC 348. e) The location of the parents. See: Children’s Aid Society of Toronto v. C.H. and A.M., 2019 ONCJ 561. f) Where the child is living. See: Native Child and Family Services of Toronto v. P.B., 2022 ONCJ 585. g) The location of witnesses. See: Children’s Aid Society of Toronto v. S.D., supra. h) The impact of delay if the case is transferred. See: Children’s Aid Society of Toronto v. S.D., supra. i) Whether the case has been actively case managed in one jurisdiction. See: Children’s Aid Society of Toronto v. S.D., supra. j) Whether the child has an established relationship with society workers in one jurisdiction. See: Children’s Aid Society of Toronto v. S.D., supra. k) How close the case is to trial. See: North Eastern Ontario Family and Children’s Services v. R.M., 2018 ONCJ 766. l) Whether the parents are forum shopping. See: Children’s Aid Society of Dufferin County v. K.C., supra.

Part Four – Analysis

[46] The following factors militate against granting the transfer motion: a) H was brought to a place of safety in Toronto. b) The child protection application was started in Toronto and temporary orders are in place. c) The father deposed he brought H and HA to Toronto with the intention of living in Toronto on a long-term basis. d) The father states he continues to live in Toronto and plans to live in Toronto on a long-term basis. e) The father and the stepmother want H to receive services in Toronto.

[47] These factors are overwhelmed by the following factors in favour of granting the transfer motion: a) H’s closest connection is to Barrie. He attended school in Barrie until March 25, 2024. The stepmother and her children reside in Barrie. The father works in Barrie and spends weekends there with the stepmother and the other children. b) H’s service providers have been in Barrie. The assessments conducted on H took place there. The child had a pediatrician who followed him in Barrie. c) The Simcoe society has had extensive involvement with the father, the stepmother and their children. In particular, it has had extensive involvement with H. The Simcoe society was actively involved with the father, the stepmother and their children from 2016 until August 2023. The Toronto society’s involvement has been recent and has been reactive to the father asking for H to be placed in its care. d) The Toronto society worker deposed that when he asked the father about H’s behaviours the father became angry and told him to call the Simcoe society to get this history. e) H is presently living in a foster home and receiving services in Collingwood. This is in the Simcoe society’s jurisdiction. H is seeing a pediatrician in Barrie. Tutoring has been arranged for him in Collingwood. f) The father and the stepmother want H to receive services in Toronto. There is no assurance this would happen if the transfer motion was denied. The Toronto society would determine these services. Currently, the Toronto society has arranged for these services in the Simcoe society’s jurisdiction. g) The Toronto society referred the father for services in Toronto. He declined them. h) Most of the potential witnesses in this case are in Barrie. i) The case is at a preliminary stage. It has not been actively case-managed in this court, as the parties have focused on the transfer issue. There will not be a significant delay if the case is transferred to the Barrie court. j) As of April, 2024, the Simcoe society had an open investigation regarding the other children of the father and the stepmother. [1] If the Simcoe society determines that court action is required to protect any of those children, it would be preferable to have H’s case heard with it. k) H has no real connection to Toronto. He did not attend school in Toronto. There is no evidence that he has friends in Toronto or received any services in Toronto. Shortly after H came to Toronto (even if the father’s sequence of events is accepted), H went to live with the father’s cousin and S in Pickering. He was in Pickering for three weeks until he was brought to a place of safety.

[48] The court finds that there is a preponderance of convenience that favours transferring the case to the Barrie court. It is in H’s best interests to do so.

Part Five – Avoiding the Simcoe society

[49] The court emphasizes that the analysis above is sufficient to warrant transferring the case to the Barrie court. However, there is another factor that supports the transfer motion. The evidence informs the court that the father and the stepmother arranged to move H from Barrie to avoid involvement with the Simcoe society.

[50] The father and the stepmother stated to the Toronto society worker that they did not want to be involved with the Simcoe society. The father told the Toronto society worker this is why he came to Toronto with H and HA.

[51] The father and the stepmother also feared that the Simcoe society might become involved with all their children because of their challenges with H. They felt they had been mistreated by the Simcoe society in the past.

[52] The Toronto society worker deposed that the father told him on April 5, 2024 that if the Toronto society did not take H into its care, he would take H to Winnipeg to have him placed in the care of its children’s aid society. He was determined to avoid the Simcoe society.

[53] The father’s evidence about where H and HA were living, and when, has to be examined within this context. The court treated it with caution. It is unlikely that H spent much time in Toronto before being sent to live with the father’s cousin and S in Pickering. The court had the following concerns about the reliability and credibility of the father’s evidence: a) The father did not inform the Toronto society worker that, on March 26, 2024, H and HA had gone to stay in Pickering with his cousin and S. b) The father did not tell the Toronto society worker that H and HA were staying in Pickering during a meeting at his uncle’s home with H and HA on March 27, 2024, or in subsequent telephone calls. The Toronto society learned about this from the Simcoe society on April 10, 2024. The Simcoe society had been called by S, who told them H and HA had been with her for two weeks. c) The father told the Toronto society worker that H and HA were temporarily placed with his cousin and S because the uncle had a visitor coming and there was not enough space. S told the Toronto society that the father told them they had been evicted. The uncle told the Toronto society on April 10, 2024, that he couldn’t have the father, H and HA live with him because he already has two tenants and only four people are permitted to live in his apartment. He said he could only host H for two days because he is a senior and travels a lot. d) On April 10, 2024, HA told the Toronto society worker that she and H were staying in Pickering before they met with the worker on March 27, 2024. She told the worker they only spent a few days in Toronto before moving to Pickering. e) On April 10, 2024, H told the Toronto society worker that the father had told him to tell the him they had been living in Toronto, even though they had been living in Pickering.

[54] The father summed up his position at paragraph 65 of his affidavit where he wrote:

Although the family resides in Barrie Ontario given the lengthy time of the family and the racial discrimination findings by Dr. Regisford with in the SMFC, it is believed that H would receive better support and services that are also culturally appropriate.

[55] This case is a good example of why removing a child from a jurisdiction to avoid a children’s aid society should be discouraged. H was uprooted from his community, friends and family. He was shuttled from Barrie to Toronto to Pickering. He was kept out of school after March 25, 2024. He was subjected to considerable instability and chaos. And, he was subjected to rejection by the father and the stepmother. None of this has been in his best interests.

Part Six – Conclusion

[56] An order shall go as follows: a) This case is transferred to the Superior Court of Justice (Family Court) located in Barrie, Ontario. It shall be scheduled on a date to be coordinated with its trial coordinator’s office. b) The present court orders continue until further order. c) The July 31, 2024 appearance in this court is vacated.

Released: July 10, 2024

Justice Stanley B. Sherr

[1] The court was not advised if this investigation is still active.