ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 213/14
DATE: 20150811
BETWEEN:
Highland Shores Children’s Aid Society
Applicant
– and –
B.R. and P.I.
Respondents
Jim Hunt agent for Christopher Rous, for the Applicant
Stephanie Rudd agent for Marc Rijkenberg, for the Respondents
P.C. and S.T.C.
Brian Hall
Respondents
M.R.C.
Child
for the Respondents
Paula Armstrong, Children’s Lawyer
HEARD: August 4, 2015
PUBLICATION RESTRICTION NOTICE
Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.
McLEOD, j.
REASONS ON MOTION
This is a motion brought by the respondents’, P.C. and S.T.C. for an order placing the child, M.R.C. (D.O.B. […], 2007) into the care and custody of P.C. and S.T.C.
[1] In support of the motion the respondents, P.C. and S.T.C., rely upon affidavits dated the 16th of July 2015, the 17th of July 2015, and the 29th of July 2015.
[2] The respondent mother has filed affidavits dated the 19th of November 2014, the 22nd of July 2015, and the 31st of July 2015.
[3] The Office of the Children’s Lawyer filed two affidavits dated the 29th of July 2015 and the 31st of July 2015.
[4] The Society has filed two affidavits. One dated the 29th of July 2014, which was filed in support of the original apprehension application and a further affidavit dated the 29th of July 2015.
[5] On the 22nd day of August 2014, Justice A.P. Ingram issued an order which amongst other things found the child in need of protection pursuant to subsection 37.2(g) of the Child and Family Services Act as amended. The order references that the court received evidence and heard submissions on behalf of the party/ parties present. Present in court on the day were counsel representing the Highland Shore’s Children’s Aid Society, respondent mother, B.R. (represented by duty counsel) and P.I., who is noted as father but is in fact the step-father of the child and current common-law spouse of B.R. It does not appear that the respondents’ P.C., nor S.T.C. were present. The order of the 22nd of August 2014 places the child M.R.C. in the care and custody of his mother and step-father, B.R. and P.I. subject to the temporary supervision of the Highland Shores Children’s Aid Society.
[6] The respondent father and step-mother (P.C. and S.T.C.), were granted access in accordance with the existing family court order.
[7] It is apparent that there has never been a temporary care and custody hearing as required under Section 51(2). The reason so being that none of the respondents had filed any information at the time Justice Ingram made the August 22nd, 2014 order.
[8] Accordingly and despite the submissions of the representative of the Office of the Children’s Lawyer, I have treated this motion as a hearing being conducted pursuant to paragraph 51(1), and (2) of the Child and Family Services Act and I have considered all of the affidavit evidence herein referred to for purposes of such a hearing.
[9] In this case there was no actual apprehension of the child by the Society. The child remained with his mother and step-father. On the evidence on this case, I am satisfied that immediately prior to apprehension the mother had “charge” of the child.
[10] The motion brought by the father and step-mother would be an order pursuant to Clause 51(2)(c), that is, placement with a person other than the mother who had charge of the child immediately before the societies intervention.
[11] Section 51(3) sets out the test for determining temporary care and custody in the circumstances set out in the case. The onus is upon the moving party to meet both parts of the two-part test set out in this subsection. If the party does not do so the child must be returned to the person who had charge of the child immediately before the Societies intervention.
[12] The Society, in their submissions on this motion characterized the matter before the court as a custody/access matter. Indeed absent the apprehension application, the order of Magda, J., dated January 25th 2012 found at Exhibit D to the affidavit of Christa Gebarowski, dated July 29th 2014 and filed originally in support of the apprehension application by the Society, would govern the situation. That final order of Magda, J. came after several days of trial and placed the child’s primary residence with B.R. (the respondent mother in the protection application before the court). The Society has chosen to invest itself in this matter by commencing the aforementioned application and until this matter resolves by consent, final order or terminating of Society involvement then this court is required to make the determination pursuant to Section 51(1), (2) and (3). It is not this court’s prerogative to simply choose as between competing parents but rather to apply the law, specifically in accordance with Subsection 51(3). That is, that unless this 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)., then Subsection (2)(a) or (b) applies.
[13] Subsection 51(2)(b) mandates that when a hearing is adjourned, the Court shall make a temporary order for care and custody providing that the child remain in or be returned to the care and custody of the person referred to in clause (a) subject the Societies supervision and on such reasonable terms and conditions as this Court considers appropriate.
[14] A review of all of the affidavit evidence submitted, satisfies this court that there are “reasonable grounds” to believe that there is a risk that the child is likely to suffer harm.
[15] The evidence demonstrates a history of domestic violence between B.R. and P.I.; the ongoing conflict in the home; the allegations of the mental health of B.R. and the allegations of the refusal on the part of B.R. to work with the Society.
[16] Despite all of those concerns the Society in their original affidavit of July 29th 2014 and their subsequent affidavit of July 29th 2015 continues to maintain that a supervision order is the appropriate remedy in resolving this matter in accordance with the Child and Family Services Act.
[17] Accordingly, the issue for this court is whether or not the evidence offered by the Office of the Children’s Lawyer and the respondent father and step-mother demonstrates “that the child cannot be protected adequately by a supervision order under Clause (2)(b).
[18] The position of the respondent father and step-mother can be characterized as either a request for relief under Paragraph 51(2)(c) or alternatively he is seeking a determination under paragraph under Section 51(6), asking to vary the previous order of Ingram, J. dated August 22nd 2014. The order of the 22nd August 2014 was based upon only the evidence of the Society. None of the evidence of any of the respondents was before the court at that time. It is my view that little turns on the fact that is either a temporary care and custody hearing effectively at the first instance or alternatively a motion to vary the order of August 22nd 2014. I have taken into account all of the evidence which has been served and filed to this point including the evidence of Ms. P. Armstrong, the child’s lawyer, appointed by the Office of the Children’s Lawyer. Her evidence being found in the affidavit of the respondent, P.C., dated July 16th 2015 where it is indicated that it is the views and preferences of M.R.C. that he be placed in to the care and control of his father and step-mother.
[19] In this case there would appear to be little difference in the factors for the court to consider. That is whether the motion is treated at first instance of a long delayed care and custody hearing or a motion to change. It is clear in the latter a material change must be demonstrated. The issue is whether or not there has been such a change from the time the original order was made based only upon evidence from the Society.
[20] There are several factors to consider. They are:
(a) Risk of harm.
(b) Viability of supervision by the Society.
(c) Stage of action.
(d) Continuity of Care.
(e) Child’s wishes.
(f) Society’s adherence to its statutory duties.
(g) Ability of proposed caregivers to meet the child’s needs.
[21] It is my view the any protection concerns entailed in the placement of the child with the respondent mother can be controlled by supervision order with appropriate terms.
[22] It is to be noted that M.R.C. has been in his mother’s primary care and control since the date of birth. Given the stage of these proceedings it is likely that, pending resolution on consent, this matter will be trial ready within the next three months. The court is indeed concerned that a move of the child now with a possible move again in three months would be counter- productive to M.R.C.
[23] The views and preferences expressed by M.R.C. and as captured in the affidavit of Lisa Woodcock dated the 29th of July 2015 and the respondent, P.C. dated July 16th 2015, are that he wishes to be placed in the care of his father, P.C. They in and of themselves are not determinative.
[24] It appears to me that the Society has made its position clear from the outset that is a request for six months supervision order. What is unclear to me at the present time is whether or not the Society’s intention is to now terminate their involvement in this file.
[25] There is nothing in these materials that suggest to me that in the case of the respondent mother and step-father, that they are unable meet the child’s needs provided that there is an ongoing supervision order in place. In fact, all of the evidence submitted by society suggests that they can meet the child’s needs pursuant to a supervision order.
[26] After reviewing all of these matters and in particular the length of time that M.R.C. has been in the care and custody of his mother, the position of the Society, and the likelihood of this matter being resolved in the immediate future I am not inclined at this time to do anything further than to order that child’s residency, care and control continue to be with that of his mother and step-father with terms and conditions as set out, specifically, according to Paragraphs 1 and 2 of the order of Ingram, J. dated August 22nd 2014.
[27] It is my view that any protection concerns “alleged” in the placement of the child with the respondent mother can be controlled by a supervision order with appropriate terms.
[28] Accordingly, the motion of P.C. and S.T.C. is dismissed without costs.
McLeod, J.
Released: August 11, 2015
COURT FILE NO.: 213/14
DATE: 20150811
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Highland Shores Children’s Aid Society
Applicant
– and –
B.R. and P.I.
Respondents
P.C. and S.T.C.
Respondents
M.R.C.
Child
REASONS FOR JUDGMENT
McLeod, J.
Released: August 11, 2015