Court File and Parties

COURT FILE NO.: FC-16-628 DATE: 20160823

SUPERIOR COURT OF JUSTICE - ONTARIO

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 B.D. 2011/10/24

RE: The Children’s Aid Society of Ottawa – and – S. D. and R.K.

BEFORE: Madam Justice J. Mackinnon

COUNSEL: Marie-Josee Ranger, for the Children’s Aid Society of Ottawa Kristen Robins, Counsel for the Respondent Mother Carrie-Anne Bourassa, Counsel for the Respondent Father Pamela Barron, Office of the Children’s Lawyer

HEARD: August 11, 2016

ENDORSEMENT

[1] B. is 4 years old. She was apprehended from her mother’s care on March 28, 2016. Since then, she has resided with her maternal grandmother under a temporary “without prejudice” supervision order. During the approximate 12 months before the apprehension, B. and her mother also lived on and off with the maternal grandmother who often was the child’s primary caregiver.

[2] Initially, the Society’s protection application was for a six month supervision order to the maternal grandmother. The father supported that placement until June 22 when he advanced his own plan to have B. reside with him. The father has never been B.’s primary caregiver.

[3] The Society looked into his plan and amended its application to seek a 6 month supervision order to the father.

[4] The CAS and the father now seek a temporary placement with the father. The mother asks for the child to be placed with her instead. At the end of the hearing, I gave brief oral reasons dismissing the mother’s request. In so doing, I concluded that there were reasonable grounds to believe that there is a risk that the child is likely to suffer harm if returned to the care of her mother and could not be protected adequately by a supervision order.

[5] At the end of the motion I reserved on whether to move B. from her maternal grandmother’s home to her father’s home on a temporary basis.

[6] These are my reasons for ordering that the child shall remain in the care of the maternal grandmother under a temporary supervision order, pending final determination of the amended application.

[7] First, the care and custody motion was scheduled to be heard on May 17, 2016. It was adjourned to June 29, then to August 2, then to August 11. On August 3, the Society delivered its amended application. The delivery of an amended application does not restart the timetable established by rule 33 of the Family Law Rules, O.Reg. 114/99 (FLRs). That rule prescribed May 2 as the completion date for the care and custody motion, and July 30 as the completion date for the final hearing. In my view, when the father’s plan was put forward and approved by the Society, the preferred procedure would have been to proceed as quickly as possible to a settlement conference and then to a trial if required.

[8] Had a settlement conference and trial date been scheduled at the end of June when the father’s plan was delivered, the Court could have provided both dates within a combined nine week period, subject to counsels’ availability. Instead, the parties proceeded with contested motions to change the child’s placement on a temporary basis before trial. This process has not advanced the final disposition of this case. It has also impeded the scheduling of other cases in this overly busy Family Court, by occupying four different motion slots, only one of which was actually used.

[9] Second, the father resides in Kingston, Ontario. The mother and the maternal grandmother both reside in Ottawa. The mother may move with the child to Nova Scotia, where she believes she will have a better life. The grandmother is not proposing a permanent plan for B. Accordingly, the final disposition will entail a change of residence for the child, and may entail a relocation from Ottawa. That is the type of decision that should be made only once, on a final basis, to avoid the potential of multiple moves for the child.

[10] The order placing B. with her maternal grandmother is a temporary “without prejudice” order. Despite that limitation, the order has been in place since April 1, a period of over four months, a duration which significantly exceeds the timetable for a care and custody hearing and actually exceeds the timetable for completion of the trial. [^1]

[11] Rule 33(3) FLRs provides that the Court may lengthen a time shown in the timetable only if the best interests of the child “require” it.

[12] I also note in reference to a Status Review application, s. 64(8) Child & Family Services Act, R.S.O. 1990, c C.11 (CFSA) uses similar language:

64(8) 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.

These provisions accord with parenting cases with no Society involvement, where a temporary order would not be changed before trial absent compelling circumstances, showing that the child’s best interests required the change.

[13] The word “require” has been interpreted in the context of s. 64(8) in Children’s Aid Society of Algoma v. S.S., 2010 ONCJ 332, [2010] O.J. No. 3507, at para 16 as follows:

[...] “Require” is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation. Moreover, the criterion for determining that there is a requirement for a change is the best interests of the child. Whenever this test is to be applied under the statute, the person making the determination must take a number of listed considerations into account.

[14] In Children’s’ Aid Society of Toronto v. S.G., 2011 ONCJ 746, [2011] O.J. No. 5884, the Algoma case was cited with approval as highlighting the importance to be given to maintaining continuity of care for a child when a party wishes to disturb a status quo before trial. Courts hesitate to disrupt a child’s living arrangements by making a temporary change that may have to be reversed later. In S.G. the court held at para. 22 that such a change should be made, “only when it is clearly necessary to do so before trial.”

[15] Additionally, courts typically require compelling circumstances to justify a relocation on a temporary basis. This approach has been applied in child protection cases. Children’s Aid Society of Toronto v. G.M., 2015 ONCJ 463, [2015] O.J. No. 4430 states at para. 41 (a) that a “court will likely apply a stricter test during an original protection proceeding since there has not yet been a finding that the child is in need of protection…”. The court should also be cognizant of the impact of a temporary relocation order on the final outcome of the case.

[16] This motion was presented as one of some urgency having regard to the approaching commencement of the school year. The father and the Society urge that B. should be moved to Kingston in time to start her school year there. Additionally, since the maternal grandmother will not be presenting a permanent plan, the submission was that the child would be better off moving to her father’s now, since he does offer a permanent plan.

[17] The father has a viable plan. He has a two-bedroom apartment for himself and B. The apartment has been approved by the local Society. He has a full-time job. His mother has moved to Kingston from Thunder Bay. She is retired and is ready to assist him in caring for B. as needs be. The father has been having access to B. which has gone well. B. looks forward to seeing her father and is generally positive about the time she spends with him.

[18] The Society has made an assessment of the father’s plan. The social worker met the paternal grandmother, and spoke to the father’s AA sponsor. She found no information to suggest the father had not been sober for the past two years. No records checks were reported as having been completed with respect to the paternal grandmother. It does appear that she will be living in the father’s apartment at least until she obtains her own accommodation. There is little information before the Court about the relationship between the paternal grandmother and B. The father’s description of his recent attendance at hospital, which he described as a short-lived panic attack not requiring admission or medication, has not yet been independently verified.

[19] There is no indication that a change in the care and custody of this child is necessitated by reason of the care she is receiving now, in her maternal grandmother’s home. Her maternal grandmother appears to be reluctantly deferring to the father’s permanent plan. She told the kinship services worker that if she had her way, B. would stay with her because of their strong relationship and for the consistency she can provide. She also advised the kin worker that she thought B. would need help to adjust to the proposed change. There have only been a few overnight visits at B.’s father’s. She described one where B. called her for reassurance before bedtime. Given the short time frame before school commences, there is little opportunity for a gradual move to ease the child into changed circumstances.

[20] B. has already been registered for school in September in her maternal grandmother’s district. The maternal grandmother gave her consent to the temporary “without prejudice” order. The record before me does not demonstrate that she has withdrawn that consent on a temporary basis.

[21] In considering the child’s best interests at this stage of the proceedings considerable weight should be given to s. 37(3).5, 6, and 7 CFSA. In my view these provisions all support continuity of care in the child’s current stable placement with her maternal grandmother to whom she is attached, and where she is secure.

37(3).5 The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

37(3).6 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.

37(3).7 The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

It is also the least disruptive course of action that is available at this point in time. See CFSA s. 1(2).2.

[22] My decision should not be taken as diminishing the recent efforts made by the father to present a permanent plan for his child. However this is a temporary care and custody hearing, not a motion for summary judgment. I have not been persuaded that there are compelling reasons related to this child’s best interests to change the current placement before final disposition.

[23] The father shall be entitled to access to B. in Kingston, provided he picks up and returns the child, during alternate weekends, from Friday at 4 p.m., or a set time as soon thereafter as he can arrive, until Sunday at 6 p.m. If he can arrange to travel to Ottawa for a mid-week visit this shall also occur, to conclude by 7 p.m. There shall be Skype or Face Time communications between father and daughter at least once every week, not to exceed fifteen minutes in duration.

[24] The case has been adjourned to August 25, 2016 at 9.30 a.m. to be spoken to. At that time, dates for a settlement conference, trial management conference and trial shall all be scheduled for the earliest dates practical. The Court of Appeal for Ontario has made it clear in C.M. v. Children’s Aid society of the Regional Municipality of Waterloo, 2015 ONCA 612, 389 DLR (4th) 725, at para. 31 that, “…it is imperative that judges, court administrators, counsel (particularly counsel for Children’s Aid Societies) and assessors take responsibility for ensuring adherence to statutorily required timelines.” And at para. 33: “Where a statute requires that events occur within a specified time frame, it is simply unacceptable that justice system participants fail to adhere to those time frames.”

Madam Justice J. Mackinnon DATE: August 23, 2016

[^1]: Counsel did not argue the issue of whether there was a “shelf life” associated with “without prejudice orders”. I did not find it necessary to do so either, given that the genesis of the concept appears to arise from the priority that s. 51 (2) of the CFSA provides to the person having legal charge of the child at apprehension. For example, in Catholic Children’s Aid Society of Toronto v. W.I., 2014 ONCJ 62, [2014] O.J. No. 620, at para. 26 the court states, “The test in subsection 51(2) is designed to set up a rigorous standard for society intervention in the life of a person who had charge of a child. … The court does not and should not lightly eliminate the subsection 51(2) rights of the person who had charge of the child.” Here the mother was the person who had charge of the child immediately before intervention. Once I had dismissed her request for care and custody, the issue shifted to s. 51(2) (c), in which the duration of the “without prejudice” placement is a factor to consider in relation to whether it is in the child’s best interests to be moved at that point in time and at that stage of the proceedings.