Court File and Parties

Court File No.: FC-15-1424 Date: 2016/06/24 Ontario Superior Court of Justice

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF: R. R. McC., born [ … ], 2008, R. J. McC., born […], 2009 and P. J. McC., born […], 2009

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – R. E. (mother) R. McC. (father) Respondents

Counsel: Marie-Josée Ranger, as agent for Jane McCalla, for the Applicant Mimi Marrello, for the Respondent mother Tanya Parker Wallace, for the Respondent father

Heard: June 14, 2016 (at Ottawa)

Reasons for Decision

Shelston J.

[1] R. E. (“the mother”) married R. McC. on August 5, 2006 and separated on August 13, 2012. There are three children of the marriage, namely: R. R. McC., born […], 2008, R. J. McC., born […], 2009 and P. J. McC., born […], 2009. All three children have special needs. Their doctors and educators are all in Ottawa.

[2] On July 11, 2015, the three children were removed from the father’s care prompting the Children’s Aid Society of Ottawa (“the Society”) to commence a Protection Application regarding the three children.

[3] On September 2, 2015, pursuant to Minutes of Settlement dated August 25, 2015, Justice Phillips ordered the children returned to the father’s care subject to a Supervision Order.

[4] On February 26, 2016, the Society filed a Status Review Application returnable February 29, 2016. The matter was adjourned to April 4, 2016, at which point a care and custody motion requested by the mother was set for June 14, 2016.

[5] The mother, in her notice of motion, seeks a temporary order for the following relief:

(a) an order that the mother have temporary care and custody of the children, namely: R. R. McC., born […], 2008, R. J. McC., born […], 2009 and P. J. McC., born […], 2009; (b) an order permitting the mother to relocate with the children to London, Ontario forthwith; (c) an order that the father shall have access to the children in accordance with the Children’s Aid Society’s recommendations and in accordance with the children’s best interests; and (d) such further and other relief as this honourable Court may deem just.

[6] The Society and the father oppose the motion.

Mother’s Position

[7] The mother acknowledges that pursuant to section 64(8) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [“CFSA”] the child shall remain in the care and custody of the person or Society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.

[8] The mother acknowledges that she has the burden of proof to demonstrate on a balance of probabilities that the best interests of the children require a change in their care and custody from the father to the mother on an interim basis.

[9] At the time of this motion, the children had been in the care and custody of the father since September 2, 2015 pursuant to the order of Justice Phillips.

[10] The mother submits that the best interests of the children require the court to intervene to allow the move of the children from the father’s care in Ottawa to the mother’s care in London, Ontario on a temporary basis pending the final disposition of this Status Review Application.

[11] The mother’s points are as follows:

(a) The children are subjected to physical discipline by the father such as squeezing their shoulders, screaming at them, slapping R. R. on his back, washing P.’s mouth out with soap and leaving the children unattended in a stairwell; (b) The children are subjected to emotional harm because the father discusses the litigation with the children and because the children are in fear of their father; (c) The father has a drinking problem; (d) The children’s basic needs are not being met; (e) the children have special needs that require a parent who is very committed to dealing with their educational and medical needs; (f) The mother is the only person who can provide proper care; (g) The mother has strong ties to her maternal family in London, Ontario where she will have assistance with living expenses as well as having access to a vehicle; and, (h) Staying in Ottawa is not in the children’s best interests.

Father’s Position

[12] The father’s position is as follows:

(a) The allegations of physical discipline have been investigated by the Society and have not required the removal of the children from his care. The father admits that at times he is overwhelmed but that he is taking a parenting course and that he will refrain from using corporal punishment; (b) Regarding emotional harm, he admits that he has inadvertently discussed the issues of the litigation with the children, but denies any other allegations that he is exposing the children to emotional harm; (c) He denies that he has a drinking problem; (d) He denies that the children’s basic needs are not being met; (e) He asserts that he is actively involved with the children’s educational and medical needs; (f) He denies that the mother is the only person who can provide proper care of the children; (g) He argues that the mother’s family could provide financial support for the mother in Ottawa; (h) He argues that it is not in the children’s best interests to move seven hours away to London, Ontario; and (i) He argues that the mother had no job in Ottawa and has no job in London.

Society’s Position

[13] The Society’s position is that there must be a material change in circumstance before a court can vary the care and custody of the children and that in this case, there has been no material change in circumstances. The Society argues that many of the allegations raised by the mother in 2016 were raised in 2015. In support of that argument, the Society refers to the mother’s original Answer and Plan of Care filed on August 14, 2014, where she raised the following issues:

(a) She sought an order allowing her to relocate with the children to London, Ontario where she would temporarily live with her parents, she would have access to a vehicle, and the children would attend school in London; (b) Further, she proposed that, despite the special needs of her three children, she would have supporting services at various health care providers in London, Ontario; (c) Her parents would provide her with financial support and she would continue in her efforts to find a position in teaching; and (d) She raised allegations of sexual abuse against the father as well as allegations that the father physically harmed one of the children.

[14] The Society indicates that the allegations of physical discipline have been investigated by the Society as part of the supervision order.

[15] With respect to emotional harm, the Society states that both parents talk negatively about each other to the children. The Society indicates that there is no medical evidence provided by the mother confirming any emotional harm to the children. Further, the Society submits a finding of emotional harm in section 37(2)(f) of the Child and Family Services Act requires more than the parties talking negatively to the children.

[16] With respect to the allegations of drinking, the mother having support services in London, and the mother having no services in Ottawa, the Society argues these issues were raised prior to the signing of the Minutes of Settlement on August 25, 2015 and consequently are not material changes in circumstances in 2016.

[17] The Society advised the court that there is a psycho-educational assessment being conducted and that if the child, R. R., is found to be on the autistic spectrum, the father is entitled to funding which will alleviate some problems and could possibly provide him with access to respite care.

[18] Finally, the Society also argues that a full hearing is required to test the veracity of the allegations before the court decides to make a radical change in the children’s circumstances by moving them from Ottawa to London, Ontario, noting that the mother is an access parent.

The Law

[19] In the Catholic Children’s Aid Society of Toronto v. T.A.R, 2014 ONCJ 630, Justice Roselyn Zisman held as follows:

10. The proper test to be applied in a Status Review Application is the “best interests” test. The criteria in section 37(3) of the Child and Family Services Act are therefore to be considered.
11. The best interests test creates a strong presumption in favour of maintaining the status quo pending trial as there is a presumption that the original order is correct. However, this presumption is rebuttable if the party seeking to change the order can establish that there are relevant circumstances that require such a change.
12. Although subsection 65(1) of the Child and Family Services Act does not state that the moving party must demonstrate that there has been a material change in circumstances, it is well accepted that this is the threshold test as it is consistent with the statutory scheme of the legislation as it recognizes the importance of stability and continuity for children is desirable.
13. Therefore, in this case, the onus is on the society to prove on a balance of probabilities that there has been a material change in circumstances that in the child’s best interest requires a change in the care of the child, prior to and without the benefit of a trial.

[20] In the Children’s Aid Society of Algoma v. A.B., 2012 ONCJ 351, 20 R.F.L. (7th) 217, Justice Kukurin held at paras. 15-17 as follows:

15. The specific provision of the CFSA statute that deals with interim care and custody until a status review case is completed is section 64(8).

S. 64(8) Interim care and custody - If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.

16. This subsection establishes a presumption or, at the very least, a legal bias in favour of maintaining the placement of the child with the person having charge of the child, until a final disposition in the status review application. However, the continuation of this placement is not written in stone. The status quo can be changed by the court, on an interim basis, but only if the court is satisfied that the child’s best interests require change.
17. I have, in other case, set out my views on what section 64(8) CFSA means in practical terms. Some judicial difference of opinion exists with respect to that meaning. A succinct but comprehensive elucidation of what section 64(8) means can be found in a recent decision of Murray J.

In my view, on such motions, the moving party must first establish that there has been a material change in circumstances related to the child’s best interests. If there has been such a change, then it must be demonstrated that it is necessary, in protecting the child’s best interests, to change the existing order before trial of the status review application. The Act sets out certain factors, in addition to continuity of care, which may be relevant in assessing a child’s best interests.

[21] In the Children’s Aid Society of Toronto v. S.S., 2013 ONCJ 51, at paras. 7 and 8, Justice Jones held the following:

7. In making a determination in the child’s best interests, the court is to take into account such of the factors set out in section 37(3) of the Act as the court feels are relevant to the circumstances of the case. Further, in keeping with the expressed purposes of the legislation, the court should bear in mind that the least disruptive course of action that is available and is appropriate should be considered.
8. The onus or burden of proof in demonstrating that there has been a material change in circumstances that requires a change to the child’s placement is on the moving party, as the party seeking to disrupt the status quo. The standard of proof is the civil standard of proof, namely, on a balance of probabilities.

Analysis

[22] The burden of proof is on the mother to demonstrate on a balance of probabilities that there has been a material change in circumstances since the order of Justice Phillips on September 2, 2015 and that the change in circumstances requires the court to change the children’s placement on a temporary basis.

[23] The mother has raised a number of issues regarding why the children should be moved from Ottawa to London pending the final disposition of the Status Review Application. Many of the allegations were raised in her Answer and Plan of Care in August 2015. If the circumstances existed before the order of Justice Philips, these circumstances cannot be relied on as a current material change in circumstances.

[24] After reviewing the mother’s Answer and Plan of Care filed on August 14, 2015, it is apparent that at that time the mother proposed that she move to London, Ontario for many of the same reasons that she now relies on to change the children’s status quo. For example, the issue of the car, family ties, family support, the children’s special needs, the effects on the children’s educational and medical needs and a potential residence in London were all raised in August 2015. Those allegations are not new allegations.

[25] With respect to the issues of physical discipline, I am satisfied with the evidence provided by the father and the Society that the allegations of physical discipline have been sufficiently investigated by the Society. The specific allegations regarding physical discipline have been investigated and remedial action has been undertaken.

[26] With respect to screaming by the father, he denies such an allegation. On the issue of him squeezing the children’s shoulders, he acknowledges that he will no longer do so and that he will not use corporal punishment in the future.

[27] The evidence does not convince the court that it must act in the best interests of the children to make a major move of these three children from Ottawa to London on an interim basis.

[28] The trial will be the best venue to test the veracity of the allegations and allow a full investigation as to what is in the children’s best interests. The evidence simply does not rise to the level of material change in circumstances requiring the court to intervene.

Disposition

[29] Consequently, I dismiss the mother’s motion without costs.

Shelston J. Released: June 24, 2016