Children’s Aid Society of London and Middlesex v. K.E., 2015 ONSC 744
COURT FILE NO.: C917/2-7
DATE: February 2, 2015
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant
AND:
K.E., T.F., J.L.S. and A.G.S., respondents
BEFORE: MITROW J.
COUNSEL: Sandra Welch for the Society
Kim Doucett for the Children’s Lawyer
J.L.S. in person
A.G.S. in person
K.E. not appearing
T.F. not appearing
HEARD: January 8, 2015
ENDORSEMENT
[1] This status review application proceeded before me on January 8, 2015 on a consent basis. All parties appearing, together with child’s counsel, support the termination of the existing six month supervision order placing the child, S.J.A.E., born [2001], with the maternal grandparents, J.L.S. and A.G.S., and placing S. with her maternal grandparents pursuant to a custody order under s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended].
[2] The decision was reserved to allow the court to review the material filed.
[3] At the court’s request, both J.L.S. and A.G.S. gave brief viva voce evidence. They each confirmed the accuracy of their respective original copy of police vulnerable sector records checks, filed as exhibits 3 and 4.
[4] In relation to involvement with child protection agencies, both J.L.S. and A.G.S. had filed recently sworn form 35.1 affidavits, as would be required if they were seeking custody pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12, with each party also completing, as required, the “Part B” portion of the affidavit.
[5] However, there was no evidence of any reports having been received from a society as anticipated by s. 21.2(4) of the Children's Law Reform Act. Instead the Society relied on the oral evidence of the maternal grandparents and, also, the kin assessment marked as exhibit 5 (said assessment being filed at tab 4 in continuing record #6 and also being marked as exhibit 3 on the hearing for the supervision order).
[6] Both maternal grandparents had resided outside Ontario: J.L.S. and A.G.S. each resided for periods of time in Florida, and A.G.S. had also resided in the Province of Quebec.
[7] I accept the evidence of both J.L.S. and A.G.S. that neither of them has had any involvement with any child protection agency, either within Ontario or outside Ontario, except as disclosed in the kin assessment.
[8] The evidence on the hearing, that includes an agreed statement of fact, supports the order sought. The mother, K.E., has had a significant history, with issues including substance abuse, transience, housing instability, neglect, criminal conduct and exposure of the child to inappropriate caregivers and other people.
[9] The child has a warm and nurturing relationship with her maternal grandparents. She is comfortable and happy living in their home, and has a desire to remain there. The mother has been reported as supporting this plan; however, the mother has not filed any pleadings. The maternal grandparents did file a joint answer and plan of care.
[10] The child’s father, T.F., has not been involved in the child’s life for a number of years. His whereabouts are unknown. An order was made on January 8, 2015 dispensing with service on T.F.
[11] I am satisfied that it is in the child’s best interests for an order placing her in the custody of the maternal grandparents pursuant to s. 57.1.
[12] There remain some procedural complexities, given the existing legislation, as to how best to structure a s. 57.1 order.
[13] In the present case, the status review proceeding is pursuant to s. 64 of the Act. The remedies on a s. 64 status review are set out in s. 65 as follows:
Court may vary, etc.
65.(1) Where an application for review of a child’s status is made under section 64, the court may, in the child’s best interests,
(a) vary or terminate the original order made under subsection 57 (1), including a term or condition or a provision for access that is part of the order;
(b) order that the original order terminate on a specified future date;
(c) make a further order or orders under section 57; or
(d) make an order under section 57.1. R.S.O. 1990, c. C.11, s. 65 (1); 2006, c. 5, s. 23 (1).
[14] An order made under s. 57.1 is deemed to be an order under s. 28 of the Children's Law Reform Act. The relevant portions of s. 57.1 are reproduced below:
57.1(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children’s Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and
(b) may give any directions that it may give under section 34 of that Act.
[15] An issue arises as to what form a s. 57.1 order should take, considering that any future variations of that original order will be, in effect, a motion to change pursuant to the Children's Law Reform Act.
[16] Should the custody order be issued retaining the title in the protection proceeding showing the Society as the applicant? If so, this makes for a potentially confusing motion to change as the Society would be a named party and would be served.
[17] Should a new Children's Law Reform Act file be opened contemporaneously with the making of the order, with the Society to be expunged from the title, and with the custodial parties being shown as applicants, with the remaining parties as respondents? This approach has been used and may be appropriate in some cases.
[18] The issue of the confidentiality of the protection proceeding does arise as any subsequent motion to change would need to disclose the order being varied, and it likely would be readily apparent that the order being varied is an order arising from a protection proceeding.
[19] This matter appears to require legislative intervention; there is no current standard protocol.
[20] A corollary issue surfaces as to whether a society should, as a minimum, have knowledge of any subsequent variation proceeding in relation to a s. 57.1 order; for example, parties may attempt to vary a s. 57.1 order on consent in a manner that could raise protection issues, and warrant society intervention.
[21] The order below addresses some of the procedural issues discussed. It may not be appropriate in all cases, and it is acknowledged that absent legislative intervention, there is no “correct” way to address this issue.
[22] The order sought by the parties was silent as to access. There is evidence that the maternal grandparents had been supervising access between the child and the mother, and that the child does not want unsupervised access. However, the child was also described as continuing to have a relationship with her mother. The existing supervision order provides access to the mother, supervised at the discretion of the Society.
[23] I find it is in the child’s best interests to include a provision for access as set out below.
ORDER
[24] An order shall issue as follows:
- The existing supervision order of Mitrow J. dated May 29, 2014 placing the child, S.J.A.E., born [2001], in the care of the maternal grandparents, J.L.S. and A.G.S., subject to the supervision of the Children's Aid Society of London and Middlesex and subject to seven terms and conditions is terminated, and is replaced by a separately issued order pursuant to s. 57.1.
[25] A separate order shall be issued in the protection file, maintaining the same file number, but showing J.L.S. and A.G.S. as the applicants, and K.E. and T.F. as the respondents.
[26] This separate order shall state as follows:
The applicants shall have joint custody and joint primary care of the child, S.J.A.E., born [2001].
The respondent, K.E., shall have reasonable access to the child, as arranged by the applicants, taking into account the child’s reasonable wishes and preferences. Unless the child and the applicants agree otherwise, such access shall be supervised by either one or both of the applicants.
There shall be no access to the child by the respondent, T.F.
This order is deemed made pursuant to the Children's Law Reform Act.
If any proceeding is commenced to vary any of the terms of this order prior to the child’s 16th birthday, then the Children's Aid Society of London and Middlesex shall be served with the originating documents and may seek leave to be added as a party.
[27] If the clerk of the court wishes, the above orders may be forwarded to me for signature.
“Justice V. Mitrow”
Justice V. Mitrow
Date: February 2, 2015