CITATION: The Children’s Aid Society of The Regional Municipality of Waterloo v. C.F., 2022 ONSC 614

DIVISIONAL COURT FILE NO.: 885/21

DATE: 2022/01/31

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: The Children’s Aid society of the Regional municipality of waterloo, Appellant

AND:

C.F. and J.T.R., Respondents

BEFORE: Sachs, E. Stewart and Mew JJ.

COUNSEL: Aisha Ghafoor and Jeffrey W. Boich, for the Appellant

Patrick Brohman, for the Respondent, J.T.R.

Gloria Ichim, for the Respondent, C.F.

Shelley D. McIntyre and Ernest Putman, for the Office of Children’s Lawyer on behalf of the child, J.R.

HEARD at Toronto by videoconference: January 24, 2022

ENDORSEMENT

NATURE OF PROCEEDING

[1] This is an appeal by the Children’s Aid Society of the Regional Municipality of Waterloo (the “Society”) from the final order of J.D. Walters J. dated October 13, 2021 (the “Order”). The Order arose out of two summary judgement motions brought in child protection proceedings. The Society brought one motion seeking that the child, J.R., be found in need of protection and placed in the care of his paternal grandparents under a supervision order. The child’s father brought the other, seeking an order that his parents be awarded custody of the child. By the time of the hearing the Society was supporting the father’s request for a custody order in favour of the paternal grandparents. The Motion Judge found that the child was a child in need of protection and awarded custody of the child to the paternal grandparents.

[2] In paragraph 8 of the Order the Motion Judge provided for supervised access to the mother, such access to take place at the discretion of the Society and to be supervised by the Society. The Order also stated that this access provision “shall” be reviewed in twelve months.

[3] The Society is appealing paragraph 8 of the Order. It does so on the basis that once a judge in a child protection proceeding makes an order awarding custody to a party, the Society ceases to have a role in the proceedings unless it consents to do so. In this case, the Society did not give its consent to facilitate or supervise the child’s access to the mother or to bring a review application in twelve months.

[4] According to the Society, the Motion Judge erred both in fact and in law in making what is essentially a hybrid order – an order for custody under to s. 102 of the Child, Youth and Family Services Act, 2017 S.O. 2017 (“CYFSA”) and an order that the Society facilitate and supervise the mother’s access to the child, a term that would have been appropriate if the court had made a supervision order under the CYFSA.

[5] Pursuant to s. 102(2) of the CYFSA, a custody order is deemed to be a domestic family court custody order made under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Under the CLRA a court cannot order the Society to supervise access unless it consents to do so, which it did not. The Society submits that paragraph 8 should be replaced by an order directing that access visits for the mother be held at a local supervised access centre, Child and Parent Place (“CAPP”) or that there be supervised access by a third-party supervisor as may be agreed upon by the mother and grandparents. The Society’s position on this appeal is supported by everyone, except the mother.

[6] For the reasons that follow, we would allow the appeal.

BACKGROUND

[7] The child who is the subject of the order under appeal J.R. (the “child”), was born on […], 2013 to C.F. (the “mother”) and J.T.R. (the “father”). The child’s paternal grandparents are A. and H. C. (the “grandparents”). The child has two siblings who were not the subject of these proceedings. One sibling was made a Crown ward in 2010 and the other is the subject of a separate application. The child has been diagnosed with Level 2 Autism Spectrum Disorder and requires substantial support.

[8] The Society has been involved with the family since 2000. The Society apprehended the child on January 4, 2018. The child was placed in the care of the grandparents under a temporary order on May 3, 2018 and has remained with them since then.

[9] The original relief sought by the Society in its ‘Amended’ Protection Application dated July 13, 2018 was for a six-month supervision order with the child to remain in the care of the grandparents and with access by the parents in the Society’s discretion.

[10] The father’s Notice of Motion dated November 17, 2020 sought a custody order in favour of the grandparents pursuant to s. 102 of the CYFSA, with access to the father at the grandparents’ discretion. The father’s Notice of Motion sought to have access by the mother arranged by the local supervised access centre, CAPP, with other access by a supervisor as agreed upon between the mother and the grandparents.

[11] On November 23, 2020 the Society formally communicated to all parties in writing that it was supporting the father’s position on the summary judgment motion.

DECISION OF THE MOTION JUDGE

[12] The Motion Judge found that the child was in need of protection and ordered that the child be placed in the custody of the paternal grandparents as set out in the father’s Notice of Motion. The Motion Judge ordered that the father was to have access to the child at the discretion of the grandparents and that the mother was to have access at the discretion of the Society. The Motion Judge also ordered that the mother’s access was to be reviewed in twelve months

[13] With respect to the finding that the child was a child in need of protection pursuant to s. 74(2) of the CYFSA, the Motion Judge noted that the evidence was overwhelming and not refuted by the mother. Therefore, there was no genuine issue requiring a trial. The Motion Judge found that the mother could not parent the child, had neglected the child’s needs, and had failed to provide an adequate home environment for the child. The child had been residing with his grandparents since 2018 and was doing well in their care. Therefore, it was in the child’s best interests to make a final order awarding the grandparents custody of the child.

[14] With respect to the father’s access, the Motion Judge ordered that the father’s access be in the discretion of the grandparents, noting that the father had been working with the Society and had been seeing the child regularly as arranged directly with the grandparents.

[15] With respect to the mother, the Motion Judge noted the evidence that the child became upset and was hard to console when he did not have his visit with his mother and found that it was in the best interests of the child that there be an order for access in favour of the mother. The Motion Judge described the Society as seeking an access order on the terms outlined by the father, or in the alternative, “an order for access between the mother and the child in the Society’s discretion, supervised in its discretion.” The Motion Judge observed that “[t]he Society has already acknowledged that it will continue to supervise the mother’s access with the child” and that “[t]he Society is prepared to reassess the mother’s access in a year.” Noting that the mother had not addressed any of the protection concerns, the Motion Judge ordered that there should be access between the mother and child at the discretion of the Society and supervised in the discretion of the Society, to be reassessed in twelve months. These terms were incorporated in paragraph 8 of her Order, the only part of the Order that is at issue in this appeal. Paragraph 8 reads as follows:

8. [C.F] shall have access to the child [J.R.], at the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and supervised in its discretion for the next twelve months. Access shall be reviewed in twelve months. During the next twelve months the mother shall have access at a minimum of alternate Saturdays for four hours face to face supervised at the Society’s access centre and twice a week for Zoom or telephone calls on the weeks where there is no face to face visit.

ANALYSIS

Factual Errors

[16] We agree with the Appellant that the Motion Judge made the following factual errors as to the Society’s position with respect to the order sought and the role it was willing to play.

[17] The Motion Judge erred in repeatedly finding that in the alternative to the father’s motion for the mother’s access, the Society was seeking to supervise the mother’s access under a s. 102 custody order. The Society’s position throughout the motion was that it supported the father’s motion – which did not seek access in the discretion of the Society – and that it only sought access in its discretion if an ongoing supervision order was made instead.

[18] The Motion Judge erred in finding that the Society would be willing to organize the access between the mother and child and that the Society acknowledged that it would continue to supervise the mother’s access with the child. The Society clearly stated that it would remain involved to supervise and organize the mother’s access only under a supervision order. It did not suggest that it should remain involved to organize and supervise the mother’s access in the context of a s. 102 custody order; it adopted the father’s submission that supervised access should be facilitated through CAPP.

[19] The Motion Judge erred in finding that the Society was prepared to bring an application to review the mother’s access in twelve months. The Society did suggest that the mother’s access could possibly be re-assessed in a year, but this was stated to be due to the preference of CAPP to have such a term in the custody order. At no time did the Society suggest that it would be prepared to initiate a review

[20] These errors were both palpable and overriding and serve as one basis for appellate intervention.

Errors of Law

[21] As noted above, pursuant to s. 102(2) of the CYFSA, a custody order under s. 102 is deemed to be a domestic family court custody order made under the CLRA. As Kukurin J. held in Children’s Aid Society of Algoma v. J.B. 2019 ONCJ 6, a s. 102 order effectively eliminates the Society from further involvement and any subsequent variation must be done under the CLRA. Kukurin J. went on to hold that “with a deemed custody order, the society will no longer have a supervisory interest either in terms of the child’s placement or in terms of the child’s access visits. As far as arrangements for access to include the society, this is a non starter. It can be of no assistance – and may not want to be.” (para.85).

[22] Section 34(2) of the CLRA provides that “A court shall not direct a person, a children’s aid society or other body to supervise the exercise of decision-making responsibility, parenting time or contact under subsection (1) unless the person, society or body has consented to act as supervisor.” The Society did not implicitly or explicitly consent to act as supervisor for the mother’s access nor did the evidence before the court suggest it would consent to doing so. Having made a s. 102 custody order and in the absence of the Society’s consent, the CYFSA and CLRA did not permit the Motion Judge to order the Society to supervise the mother’s access.

[23] Once the Motion Judge made a s.102 custody order, the Society was no longer a party to the proceedings. Thus, it was an error for the Motion Judge to mandate that a review of the mother’s access be brought in 12 months. Without the Society as a party, who is to initiate that review? That is not to preclude the possibility that the court can make an order providing that any party may bring a review of the mother’s access after 12 months.

Remedy

[24] All parties, but the mother, request that this Court make the order that the Motion Judge should have made – namely, to delete paragraph 8 and to substitute an order for access through CAPP. In doing so, they state that while CAPP has not formally consented to act as a supervisor, they are confident that it will do so if this court directs it to.

[25] The mother argues that if this Court allows the appeal, the matter should be sent back to the Motion Judge for reconsideration. According to the mother, on reconsideration, the Motion Judge might choose to make a supervision order rather than a custody order. The mother submits that if supervised access is ordered to take place through CAPP, this will effectively result in an order for no access to her. This is because CAPP has rules regarding access – if a parent fails to attend access for a certain number of sessions, CAPP will no longer be prepared to act as a supervisor. This is a concern for the mother because she has only attended 208 of the 278 visits that were arranged for her. Thus, she has a history of not attending for access. No evidence was filed by the mother on the motion before the Motion Judge ( and no application to file fresh evidence was brought before us), but her counsel did attend and expressed this concern to the Motion Judge regarding naming CAPP as an access supervisor.

[26] First, the suggestion that this matter should be sent back to the Motion Judge for reconsideration because she could potentially substitute a supervision order for her s. 102 custody order cannot be countenanced in the face of the fact that no one has appealed the Motion Judge’s custody order. If this Court were to refer the matter back to the Motion Judge for reconsideration, it would only make that order with respect to paragraph 8, the paragraph dealing with the mother’s access. The s. 102 custody order would stand.

[27] We appreciate that the mother may have a concern about CAPP’s long-term willingness to continue to supervise her access. However, addressing this concern is something that is entirely within her control. If she attends for access, CAPP will continue to stay involved.

[28] In the mother’s view, the Society has been and will continue to be more tolerant about supervising access if she does not attend for access. According to the Society, this is not necessarily the case. Even if this were true, the mother was unable to point to any legal basis for this Court making an order without the Society’s consent that the Society supervise access once a s. 102 custody order has been made.

[29] We agree that this is a case where the interests of justice would not be served by sending the matter back to the Motion Judge for further consideration. It is clear that access to the mother must be supervised and that, without the Society’s consent, the Society cannot be ordered do that supervision. The only other candidate at this time for doing the supervision is CAPP. Thus, if the matter were sent back to the Motion Judge, the only order she could make at the present time is that mother’s access be supervised by CAPP.

DISPOSITION

[30] For these reasons the appeal is allowed and paragraph 8 of the Order is set aside and is replaced with the following:

8. The mother, C.F. [full names to be inserted in the revised order] shall have access with the child, J.R., born […], 2013, every second weekend at the Child and Parent Place at times to be arranged with the Child and Parent Place, if the Child and Parent Place consents to such an arrangement. Any costs associated with such access shall be borne by C.F.. If C.F., H.C. and A.C. are able to agree upon another third party supervisor, C.F. shall have such other supervised access as may be agreed upon. The mother, C.F., shall also have access a minimum of twice a week by Zoom or by telephone on the weeks when there is no face to face visit. This order may be reviewed in twelve months. This provision for review is without prejudice to any right to review available pursuant to s. 21 of the Children’s Law Reform Act.

[31] All parties agree that there should be no order as to costs.

Sachs J.

I agree _______________________________

E. Stewart J.

I agree _______________________________

Mew J.

Date: January 31, 2022