CITATION: CAS v. A.L.C., 2015 ONSC 3858

COURT FILE NO.: FS-15-0117-00

DATE: 20150615

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL

Shannon Kinch, for the C.A.S.

Applicant

• and -

A.L.C., D.R.K.,C.V., S.C. and K.B.

Robert McQueen, for the A.L.C.

Paul Buttigieg for S.C. and K. B.

Raymond Sharpe for D.K.

Respondents

HEARD: June 12, 2015

REASONS FOR RULING IN REGARDS TO A STAY PENDING APPEAL

Justice Thomas A. Bielby

INTRODUCTION

1The respondents A.L.C., S.C. and K.B. seek an order staying the order of Madam Justice Parent of the Ontario Court of Justice, dated June 2, 2015, as it relates to C. C.K. and K. C.K. pending the hearing of the appeal of the said order.

2In the order, Parent J. granted temporary custody of two children, C. C.K. and K. C.K. (the children), both born […], 2011, to the children’s father, D.K.

3The execution of Parent J.’s decision following the filing of the appeal was statutorily stayed for ten days. This statutory stay would have expired on June 13, 2015, however I extended it pending the release of this ruling.

BACKGROUND

4A.L.C. is the mother of the children and S.C. and K.B. are the maternal grandparents. They believe it is in the best interests of the children to be placed in the temporary care and custody of the maternal grandparents.

5A.L.C. has another child, A.C., who was born on […], 2006. He is not the subject of these proceedings and has, for some months, been in a residential care facility.

6In 2012, Justice Pawagi, of the Ontario Court of Justice in Brampton, made a consent order, granting sole custody of the children to their mother, A.L.C., with the father, D.K. exercising regular access including one weekday evening and alternate weekends.

7It was a term of the order of Pawagi J., that prior to making any major decisions affecting the children, A.L.C. was to provide 30 days’ notice to D.K. and was to solicit his input.

8On February 10, 2015, A.L.C. voluntarily placed the children in the care of her parents, the maternal grandparents. She did so without providing D.K. with the required notice of the anticipated change. A.L.C. was having personal issues and believed, at least temporarily, that the children’s interests were better served by living with her parents.

9In May, 2015, the Children’s Aid Society of the Region of Peel (CAS) commenced a Child Protection Application and sought a formal order, placing the children in the temporary care and custody of the maternal grandparents. The application and plan for care was supported by A.L.C. The father opposed this plan and sought the temporary care and custody of the children.

10The issue of temporary care and custody was argued before Madame Justice Parent on May 27, 2015 and her decision was released on June 2, 2015. Therein, she granted temporary care and custody to the father, D.K., with access to the maternal grandparents.

11With respect to this motion for a stay, the CAS takes no position in regards to the competing plans for care between the maternal grandparents and the father, on the basis that neither plan raises any child protection issues.

RULING OF PARENT J.

12The learned judge found that both the maternal grandparents and the father were, “persons in charge”. She was satisfied that both proposed placements would ensure proper care. She found, however, that the father’s plan was more worthy.

13Parent J. found that either placement would result in the children experiencing some degree of change and transition, that the father with the assistance of his parents would ensure the adjustment and that the placement with the father would minimize the conflict between families. She also stated that priority should be given to the children’s placement with a parent over grandparents.

14At paragraph 95, Parent J. noted that the status quo argument, that is, the children are settled in the home of the maternal grandparents, was created through the mother’s breach of the order of Pawagi J. by not giving the children’s father 30 days’ notice of the intended change of residence. She concluded that, “Such behaviour cannot be viewed as being in the children’s best interest.”

15The maternal grandparents were allowed week day access and every second weekend.

16In the appeal, the mother and grandparents seek the temporary care of the children with access to the father, D.K., as previously exercised by him.

ANALYSIS

17Pursuant to section 69 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the Act), the Superior Court of Justice may, in the child’s best interest, make a temporary order for the child’s care and custody pending final disposition of an appeal. In effect, that is what I am being asked to do, in considering and determining the merits of this motion for a stay. My decision, in effect, will determine temporary care and custody pending appeal.

18Section 69(4) makes the paramount consideration in a motion for interim relief, the child’s best interests.

19I am guided by the decision of Ricchetti J. in, Children’s Aid Society of Bruce County v. J. (D.) 2011 CarswellOnt 11980. Ricchetti J. reviewed the law as to the appropriate test to be considered in determining whether a stay should be granted.

20Justice Ricchetti rejected any authority which suggests the court needs to assess the irreparable harm and the balance of convenience to the parties and stated, at paragraph 29:

Determining whether the child will suffer irreparable harm is or may be inconsistent with the child’s best interests test… Further, to consider the balance of convenience of the parties puts their interests ahead of the child.

21At paragraph 30 Ricchetti J. states: “In my view, whether the interim order should be granted must be assessed with regard only to the benefits and harm to the child and the child only.”

22At paragraph 33 Ricchetti J. states: “In my view, these motions should be approached in the following manner:

i. The appellants must show there is a serious issue to be determined in the appeal; and

ii. Based on a consideration of all the relevant factors set out in the Act as to what is in the children’s best interests, what interim order pending the appeal would be in the children’s best interests?

23I concur with those statements and conclusions.

24Section 37(3) of the Act sets out a number of items to be considered in determining the best interests of a child. The following considerations are especially relevant to the matter before me:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

3. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

4. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

SERIOUS ISSUES

25With respect to whether or not the appeal raises serious issues, at paragraph 34, of his decision referenced above, Ricchetti J. states that the onus of demonstrating there are serious issues is not a heavy one. I agree with that statement and find that the onus has been met and the appeal thus raises serious issues.

26Parent J. stated in her order that a parent has a priority over the claim of a grandparent. I know of no authority in Ontario that supports that position. The correctness of this conclusion by Parent J. raises a serious issue.

27I also agree with counsel for A.L.C. that it is arguable that the learned judge erred when holding that both plans would result in some level of disruption and raises a serious issue to be determined on appeal. There is evidence that even prior to February, 2015, the maternal grandparents, particularity the grandmother, played a significant role in the lives of the children who were familiar with the grandparents’ home and had formed a close relationship with their maternal grandparents. A.L.C., it would appear, relied on her parents to assist her with childcare. Accordingly, this conclusion by Parent J. arguably raises a serious issue.

28Parent J. also relied on the facts that the status quo argument relied on by the children’s mother and maternal grandparents, resulted from the breach of the 2012 order by the children’s mother. While I agree that such a decision is a major one and notice was required, keeping in mind that the children’s mother, A.L.C. has mental health issues, the court would be curious as to the circumstances under which A.L.C. decided to place the children with her parents. Was there time to allow for thirty days’ notice or was the need immediate?

29The breach was that of A.L.C. not that of the maternal grandparents. Accordingly, was the breach of the order by A.L.C. a proper consideration in assessing the maternal grandparents’ plan for temporary care and custody?

30Turning now to the best interests of the children, the least disruptive placement is an important factor in determining best interests. Multiple changes of residence are, by their very nature, disruptive and can be the result of a placement ruling, which is later overturned on appeal.

31On the facts as presented to me, the least disruptive course of action is to leave the children in the care of the maternal grandparents pending the appeal. The children are familiar with the home of the maternal grandparents and the routines arising from those circumstances. The children would continue to live in Mississauga close to their day care, doctors and other caregivers and activities.

32The father, D.K., and his parents, with whom he resides, live in Burlington. Pursuant to the order of Parent J., the father would be required to travel with the children between the cities on a daily basis for the children to attend their day care facility, in Mississauga. He would also be required to drive the children back and forth to attend their other appointments and activities in Mississauga. I have no doubt the father is willing to do so, but the additional time just in travelling would be disruptive to the children, who are only 4 years of age.

33The evidence of the CAS indicates the children were doing well in the de facto care and custody of their maternal grandparents. This conclusion was not challenged.

34To allow the children to remain in the temporary care and custody of the maternal grandparents pending appeal, would meet the physical and emotional needs of the children and would allow them to maintain ties to members of their family to which they have become accustomed to.

35The test criteria as set out by Ricchetti J. have been satisfied and a stay of the ruling of Parent J., dated June 2, 2015, is granted in regards to the temporary care and custody of C. C.K. and K. C.K.

36Pending the appeal, the children, C. C.K., born […], 2011, and K. C.K., born […], 2011 are to remain in the temporary care and custody of their maternal grandparents, S.C. and K.B. subject to the supervision of the CAS and access by A.L.C. is at the discretion of the CAS.

37The children’s father will continue to exercise the access he had pursuant to the order of Pawagi J. in 2012.

38If the parties cannot agree, claims for costs can be made in writing within 21 days of the release of this ruling. The response is to be filed within 10 days thereafter. All submissions to be three pages or less, together with a bill of costs.

Bielby J.