CITATION: Children’s Aid Society of London and Middlesex v. S.C., 2016 ONSC 7387

COURT FILE NO.: C333/13-06

DATE: November 30, 2016

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:

S.C., R.J.B.P., E.H. and M.B., respondents

BEFORE: MITROW J.

COUNSEL: Sandra Welch for the Society

S.C., R.J.B.P., E.H. and M.B.not appearing

Marnelle Dragila for the child, R.C.

HEARD: November 25, 2016

ENDORSEMENT

[1] This status review application proceeded before me, after some adjournments, as a consent hearing.

[2] The respondent, S.C. (“mother”), is the mother of the child, R., age 9 (“the child”). The respondent, R.J.B.P. (“father”), is the child’s father. The respondent, E.H., is the biological maternal grandmother, and her spouse is the respondent, M.B. – these respondents are collectively referred to as “grandparents” and individually referred to as “grandmother” or “grandfather.”

[3] The father has not been involved in the child’s life. His whereabouts remain unknown. An order was made August 24, 2016 dispensing with service on the father.

[4] The mother and grandparents are in agreement with joint custody to the grandparents pursuant to s. 57.1.

[5] There were ten exhibits filed that included current police record checks for the grandparents.

[6] The factual background (Ex. #8) discloses that after various protection concerns arose, that the child was apprehended from the mother in April 2013 and placed with kin. This placement broke down and the child was placed with different kin pursuant to a supervision order in July 2014 at which time the child was found to be in need of protection.

[7] Mother gave birth to her second child in November 2014. That child remains in her care. After making improvements in addressing protection concerns, the child was transitioned back to the mother’s care; a supervision order in April 2015 placed the child with the mother, followed by an order in October 2015 terminating the supervision order, after which the mother remained involved with the Society on a voluntary basis for a brief period of time.

[8] Protection concerns again escalated; the child was apprehended in January 2016.

[9] Soon thereafter, the grandparents, who reside in New Brunswick, proposed a plan of care. Pursuant to the final order of Korpan J. dated April 22, 2016, the child was placed with the grandmother subject to Society supervision for three months, with terms and conditions. That order also added the grandparents as parties. The supervision was carried out, on the Society’s behalf, by its child protection services counterpart in New Brunswick.

[10] The evidence establishes that currently the child is doing well in New Brunswick with the grandparents. Further, the mother recently has moved to New Brunswick with her youngest child and they live in close proximity to the grandparents. The mother maintains a positive relationship with the grandparents and her intention is to remain in New Brunswick.

[11] At the hearing before Korpan J., both grandparents filed a form 35.1 affidavit, filed criminal record checks, and testified as to their past history of any involvement with child protection agencies. The transcript of that hearing was filed. Also, at the current hearing, a kin assessment report from New Brunswick was filed. M.B. had been a foster parent in New Brunswick. The Society filed a report (dated November 25, 2016) as to provincial records checks for both grandparents; that report indicated “that Internal and Provincial record checks do not reveal any concerning involvement with child welfare in Ontario.”

[12] I am satisfied on all the evidence that the order sought is in the child’s best interests.

[13] The court did raise with both counsel whether s. 22 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 prohibits the court from making a custody order on the basis that the child is not habitually resident in Ontario. However, after hearing submissions from counsel, I am satisfied that the wording of s. 57.1(1) of the Child and Family Services Act, R.S.O. 1990, c. C.11 is statutory authority to make a custody order. It is only after a custody order is made that s. 57.1(2) comes into play, deeming the order to have been made pursuant to the Children's Law Reform Act.

[14] In any event, counsel submitted that the child remained habitually resident in Ontario, within the meaning of s. 22(1)(a). Given the definition of habitual residence in s. 22(2)(c), it would appear that the child is not habitually resident in New Brunswick because he has not been there “on a permanent basis for a significant period of time.” There was no permanency for the child in New Brunswick because the proceeding in Ontario was still ongoing; further, Ms. Welch submitted in the alternative that all the factors in s. 22(1)(b) were met; and that in relation to paragraph (v), that the child continues to have “a real and substantial connection with Ontario” because of the ongoing protection proceedings.

[15] The order below reflects a consideration of the consent signed by the mother.

[16] A final order shall issue in the current status review application providing that:

a) The three-month supervision order made by Korpan J. dated April 22, 2016, placing the child with the grandmother subject to nine terms and conditions, is terminated, and that a separate custody order pursuant to s. 57.1 of the Child and Family Services Act shall issue placing the child with the grandparents.

[17] A separate final order, to be prepared by the Society, shall issue as follows:

a) The file number shall be the same as the protection file;

b) The grandparents shall be named as applicants, the mother and father shall be named as the respondents;

c) The applicants, E.H. and M.B., shall have joint custody of the child;

d) The respondent mother shall have reasonable access to the child as arranged between her and the applicants;

e) This final order is made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12.

“Justice Victor Mitrow”

Justice V. Mitrow

Date: November 30, 2016