WARNING

This is a case under Part III — Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

76(11) PUBLICATION — No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

85(3) OFFENCES — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Oshawa Court File No.: FC-14-91-04 Date: September 21, 2016

Ontario Superior Court of Justice Family Court

Between:

The Durham Children’s Aid Society Applicant – and – J.L. – and – P.L. [F] – and – P.L. [GF] Respondents

Counsel: A. McGregor, for the Applicant A. Oyegunle, for J. L. G. Oware, for P. L. [F] D. Shiplett, for P. L. [GF]

Heard: August 31, 2016

Decision

NICHOLSON J.:

[1] The Durham Children's Aid Society (“the Society”) has brought a motion within its status review application to place the subject children (Z.L. [F] born […], 2014, L.L. born […], 2015 and Z.L. [M] born […], 2016) in the temporary care and custody of the Society. This motion was originally brought on May 11, 2016, following the apprehension of the children on May 6, 2016. The motion was adjourned on several occasions to allow the respondent parents to file responding affidavits and facilitate disclosure regarding the respondent mother's medical records. The children have remained in the care of the Society from May 6, 2016 until the date of this motion, August 31, 2016 on a temporary without prejudice order.

[2] The Society’s motion was opposed by both respondent parents and the respondent maternal grandfather. The respondent parents each filed separate affidavits in support of their joint position that the children be placed back in their care and custody. The maternal grandfather filed an affidavit supporting placement of the children with the respondent parents.

[3] On April 27, 2016, an order was made on consent that the children are found to be in need of protection pursuant to section 37(2) (a) and (b) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [the Act] and placed in the care and custody of the respondent parents for a period of four months, subject to the supervision of the Society on terms and conditions which included:

1. The respondent parents shall report to the Society any change in the behaviours of the respondent mother indicative of a change in her mental health status;
2. The respondent maternal grandfather shall report to the Society any change in the behaviours of the respondent mother indicative of a change in her mental health status; and
3. The respondent maternal grandfather shall be present with the mother and the youngest child during the day until the child is placed in full-time daycare.

[4] The children were found in need of protection on the basis of a statement of agreed facts, signed and filed with the court on April 27, 2016. These facts included issues with the oldest child's rate of weight growth when he was an infant, the youngest child’s unexplained ingestion of the respondent mother's medication and the respondent mother's history of mental health issues.

[5] The court also relied on the parenting capacity assessment completed by Dr. Nitza Perlman dated March 2, 2016. Dr. Perlman recommended that an extended family member was needed to be available to co-parent with the respondent parents and that the children would need to be in full-time daycare five days a week. The children would need to spend weekends at the co-parenting family’s home. She stated that the parents would require someone committed to them with no restrictions on time. This would be a long-term plan and commitment that would likely take more than 12 months. She observed that the parents tend to minimize problems and may respond in an immature and self-centered manner. Ultimately, Dr. Perlman found that the respondent parents assume no responsibility for what has happened to the family and demonstrate limited insight into their children’s needs.

[6] Within days of the April 27, 2016 supervision order being made, the respondent parents breached the terms of supervision. On two occasions, the family service worker attended at the home to discover that the maternal grandfather was not present in the home with the mother and the youngest child. Furthermore, neither the parents nor the maternal grandfather reported the change in the mother's behaviour indicative of a change in her mental health status. Specifically, on May 6, 2016, the police contacted the Society to report that the respondent mother had called 911 reporting that she was suffering from postpartum depression and contemplated going to the hospital.

[7] The mother has been diagnosed with Schizoaffective disorder. On May 6, 2016 she was admitted to the hospital involuntarily and noted by hospital staff to be "acting a little bit psychotic, and was not able to look after herself or anyone else”. A registered nurse on the crisis team identified several concerns – the mother was very confused and unable to give an accurate account of why she was there or what had happened. There was evidence of thought blocking and she was upset about her children being in her father’s care. She was unable to finish her own sentences. She was unable to assign names or ages to her children. The mother also reported concerns that she had been sexually assaulted by her own father, the maternal grandfather who is a respondent in these proceedings.

[8] For the purpose of this hearing, the mother argued that her attendance at the hospital was not indicative of a change in her mental condition but, on the contrary, indicated a prompt approach to address a mental health concern. She described her condition as "experiencing post hormonal feelings relative to having just had a baby but no mental breakdown or postpartum depression". She argues that this was not a significant change in her mental health that should have been reported by family members and therefore apprehension should not have happened.

[9] She also argued that the term of the supervision order requiring her father be present with her during the day while caring for the youngest child was unrealistic. She said she should not require him there at all times. She argued they should have been permitted to allow the grandfather to take the other two children to school and out for groceries, leaving her alone with the youngest child.

[10] Ultimately, the mother argued that the Society's position was unreasonable and the children should be returned to the respondent parents.

[11] The respondent father simply repeated and relied upon the evidence and submissions of the respondent mother in support of the position that the children should be returned to both parents.

[12] The respondent maternal grandfather submitted evidence in support of his position that the children should be returned to the respondent parents. He was very clear that he was not able to offer an alternative plan. He stated unequivocally that he wanted to continue to be a grandfather but not a primary parent of the children. He was aware of his limitations. He totally denied any sexual assault against the daughter and advised that this theory emanated from a member of the respondent mother's prayer group at her church. He stated that the respondent mother told him that a member of the prayer group came to her and advised that she believed the mother had been sexually assaulted by her father.

[13] Dr. Perlman, who completed the parenting capacity assessment dated March 2, 2016, submitted an updated report dated August 8, 2016. She observed an access visit on July 12, 2016 and had an interview with the parents. She also reviewed the medical records, history of access visits since the apprehension, and information from the Society regarding the incidents that occurred since the children were placed with the parents, subject to the supervision order in April 2016.

[14] Dr. Perlman notes that the parents’ access at the supervised access center was concerning. The parents requested to decrease the length of the visits, missed two visits all together without notice, canceled one visit, and were late for several other visits. More concerning is the fact that the parents were not always engaged with the children during the access visits. The parents did not attend a schedule plan of care for the children following the apprehension.

[15] Dr. Perlman summarizes her report by stating, “the parents state unequivocally that they want to parent the children and that they believe they are good parents and the Society’s concerns are misguided”. She notes that the attempts to rally the extended family to provide significant and necessary support on an ongoing basis to the family have failed. The grandparents believe the parents are able to care for the children with limited support. The grandfather is clearly committed to the children, however, his resources are limited and he cannot provide the support needed. He says that he wants to be a grandfather and cannot be a father. The medical records show that the mother has a long history of significant mental problems with multiple hospital admissions, some involuntary, all associated with recurrent episodes of psychosis. The mother was diagnosed multiple times with the Schizoaffective disorder and/or depression with psychotic features. She failed to comply with a community treatment order. She did not follow up with referrals to services after discharge. At the end of May 2016 her current psychiatrist was unaware of her recent hospitalization and diagnosis.

[16] Dr. Perlman concludes that the parents minimize the severity of the mother's mental health problems and have no insight into the risks that the mother's mental illness poses to the children. The mother accepted the diagnosis of depression and rejected the diagnosis of Schizoaffective disorder and depression with psychotic features. The parents fail to see that a mental health crisis could recur. They fail to understand that the mother needs to be connected to a mental health professional on an ongoing basis, in addition to her visits to her psychiatrist. They did not assume the responsibility for the feeding problems experienced by Z.L. [F] and later by Z.L. [M]. They failed to see that they did not provide necessary medical services for the children including having Z.L. [M] seen by the pediatrician after discharge from the maternity ward. They have difficulty connecting with service providers and following directions. They assume no responsibility for the difficulties they and the children are experiencing since Z.L. [F] ingested the mother’s medication.

[17] In summary, Dr. Perlman states that the parents are affectionate with the children. They openly declare their love for them and a desire to parent them. However, they have been unable to provide the children with the required medical care. They miss access visits with the children and are late to many other visits. During some of the visits, the father was observed to be engaged with his phone and not attending to the children. They ignore the risk that the mother's mental health problems may have on the children. Based on the fact that, within the past two years, the children were placed with an aunt and uncle, then with the maternal grandfather, then back to the parents before the May 2016 apprehension, it is clear that the respondent parents were not able to protect the children from the instability of multiple placements. There is no evidence they will be better positioned do so in the future. In light of these disruptions, the children now need stability, predictability, adequate care, and nurturance, and it is this doctor’s opinion that the parents cannot provide for these things for their children.

[18] The history of child protection concerns also includes the parents having difficulty mixing formula for the children, not responding to the public health nurse and high-risk infant nurse direction regarding feeding and proper safety in the crib. These concerns were noted within the first week of the supervision order.

Legal Considerations

[19] The Society is asking for a temporary order to change the final protection order in this motion under the status review proceeding. The final protection order placed the children in the care and custody of the parents subject to the supervision of the Society.

[20] Clause 65(1) (a) of the Act provides that on a status review application: “the court may, in the child's best interests, 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.”

[21] Subsection 64(8) of the Act provides the authority and criterion for making temporary care and custody orders in a status review proceeding. This subsection reads as follows:

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.

[22] Kukurin J. discussed the test to be applied in Children’s Aid Society of Algoma v. S.(S.), 2010 ONCJ 332, W.D.F.L. 5173 at para. 16, as follows:

Subsection 64(8) does not create a presumption in favour of whomever has care and custody of a child. It goes further than a presumption. The use of the words "shall remain" implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child requires a change in that status quo. In my view, the use of the word "require" in this provision is not accidental. "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.

[23] The onus to satisfy the court falls on the party seeking to change the status quo. See: Children’s Aid Society of Toronto v. G.(S.), 2011 ONCJ 746, W.D.F.L. 4179 at para. 23. In the case before me today, the onus to satisfy the court falls on the Society.

[24] Subsection 37(3) of the Act sets out considerations to apply when determining the best interests of a child as follows:

Best Interests of Child

37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2. The child’s physical, mental and emotional level of development.
3. The child’s cultural background.
4. The religious faith, if any, in which the child is being raised.
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.
6. The child’s relationships by blood or through an adoption order.
7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
9. The child’s views and wishes, if they can be reasonably ascertained.
10. The effects on the child of delay in the disposition of the case.
11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
12. The degree of risk, if any, that justified the finding that the child is in need of protection.
13. Any other relevant circumstance.

[25] I have reviewed the analysis regarding temporary variation of final orders in child protection matters made by Tobin J. in Windsor-Essex Children's Aid Society v. B.(T.), 2014 ONCJ 239, W.D.F.L. 2753.

[22] In Children’s Aid Society of Algoma v. Sandra S., 2010 ONCJ 332, 192 A.C.W.S. (3d) 167, [2010] W.D.F.L. 5173, [2010] O.J. No. 3507, 2010 CarswellOnt 6012 (Ont. C.J.), Justice John Kukurin described the onus on the party seeking to change a child’s placement under subsection 64(8) at paragraph [16] as follows:

[16] Subsection 64(8) does not create a presumption in favour of whomever has care and custody of a child. It goes further than a presumption. The use of the words “shall remain” implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child requires a change in that status quo. In my view, the use of the word “require” in this provision is not accidental. “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.

[23] The onus falls on the party seeking to change the status quo. The standard of proof is on a balance of probabilities.

[24] In Children’s Aid Society of Toronto v. Samantha G., 2011 ONCJ 746, 212 A.C.W.S. (3d) 436, [2012] W.D.F.L. 4179, [2011] O.J. No. 5884, 2011 CarswellOnt 15086 (Ont. C.J.), Justice Ellen B. Murray interpreted Justice Kukurin’s analysis of subsection 64(8) as “highlighting the priority which [it] gives to one best interest factor — the importance of maintaining continuity of care for a child — when a party wishes to disturb the status quo established by a final order before trial of a status review application.” I agree with this interpretation.

[25] I also agree with the following comments of Justice Murray, in the Children’s Aid Society of Toronto v. Samantha G. decision:

Justice to the parties and the child requires that such a decision be made very carefully, only when it is clearly necessary to do so before trial. This prevents unnecessary changes in a child’s custody, and disruption of hard-won stability.

[26] 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.

[26] With all due respect, I disagree that the moving party under subsection 64(8) must, first, establish that there has been a material change in circumstances relating to the child's best interest. Although the order at the conclusion of a child protection application is considered a final order, child protection proceedings in general should be considered fluid until the matter is finalized either by termination of all protection orders or a crown wardship order. Therefore, the court is not bound to find a material change in circumstances before a final order made under a child protection application can be varied. The court is called upon at this stage to determine what is in the best interests of the child. In my view, all factors referred to in determining the best interests of the child under subsection 37(3) of the Act should be attributed equal weight, and the court will consider such factors as are relevant to the particular case.

[27] The Society has satisfied its onus of establishing that the best interests of the children require a temporary change in their care and control to the Society. The court makes this finding for the following reasons:

1. The existing supervision order was insufficient to meet the children's physical, mental and emotional needs. In particular, none of the respondents took seriously the condition that the maternal grandfather was to remain with the mother at all times during the day when she was with the youngest child. They minimized the potential risk of harm to the child in light of the mother's mental health issues. Furthermore none of the respondents reported to the Society the mother's involuntary admission to hospital on a Form One on May 6, 2016. This was a clear breach of the supervision order that required the parties to report any change in the mother's behavior that may indicate a change in the status of the mother's mental health.
2. The mother's mental health as of the date of apprehension and continuing to today causes the court significant concern. The fact that all three respondents support the return of the children to the joint care of the mother and father indicates none of them fully appreciate the seriousness of the mother's mental health issues and the risk of harm they pose to the children. The medical records show that the mother has a long history of significant mental problems with multiple hospital admissions, some involuntary, all associated with recurrent episodes of psychosis. The mother was diagnosed multiple times with the Schizoaffective disorder and/or depression with psychotic features. She failed to comply with a community treatment order. She did not follow up with referrals to services after discharge. At the end of May her current psychiatrist was unaware of her recent hospitalization and diagnosis. The mother filed no evidence to convince the court that she has, since the apprehension, obtained the necessary treatment to address her mental health problems.
3. The children have experienced multiple placements as a result of protection concerns caused by the parents’ conduct. At the initial stages of the Society's intervention, the children were placed voluntarily with an aunt and uncle. This placement broke down and the children were placed with the paternal grandfather and then with the respondent parents. They were then apprehended and have been in the care of the Society since May 6, 2016. If the children were placed back with the parents and further episodes involving the mental health of the mother occurred, the children's placement could be further disrupted. It is important that this order provide a secure placement for the children that will minimize the disruption of their continuous care.
4. The entire history of protection concerns has to be reviewed when the court considers the need for secure placement of the child within the family, the child’s relationships by blood, and the merits of the respondent parents’ plan. In addition to minimizing the potential impact of the mother’s mental health problems, the parents did not assume responsibility for the feeding problems experienced by Z.L. [F] and later by the child Z.L. [M]. They failed to see that they did not provide necessary medical services for the children including having Z.L. [M] seen by the pediatrician after discharge from the maternity ward. They have difficulty connecting with service providers and following service provider’s directions. They assume no responsibility for the difficulties they and the children have experienced since Z.L. [F] ingested the mother’s medication.
5. Given these multiple protection concerns and the finding made by this court in April of this year (that the children have suffered physical harm already and that there is a risk they may suffer further physical harm), I find that there is a continuing risk that the children may suffer physical and emotional harm if returned to the care of the respondent parents at this time.

[28] A temporary order shall go under subsection 64(8) of the Act placing the children in the care and custody of the Society and the status review application is adjourned to October 18, 2016 at 11:30 a.m.

The Honourable Mr. Justice P.W. Nicholson

**Date:** September 21, 2016