WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re 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.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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

COURT FILE NO.: FC-15-2605-4 DATE: 2019/12/18

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF A.P. born […], 2013 and N.P. born […], 2015

BETWEEN:

The Children’s Aid Society of Ottawa Applicant

-and-

S.P. (Mother) Respondent

-and-

K.P. (Father) Respondent

Counsel: Lois Amirkah Boateng, for the Applicant Sonya Notturno, for the Respondent, Mother Kimberly A. Pegg, for the Respondent, Father

HEARD: December 17, 2019

Endorsement

C. MacLeod J.:

[1] This is an unusual situation which has arisen during a Status Review Application. At the time the application was commenced, the children were in the care of their mother under a supervision order and the father had limited supervised access. Although the Society’s proposed plan of care would have been a continuation of this state of affairs the mother recently found herself in crisis and the children have been taken to a place of safety.

[2] The issue on this motion is what interim order is appropriate in the best interests of the children. The Society proposes to keep the children in foster care while it continues to work with the parents. The mother supports this plan but the father is opposed. He seeks to have the children placed in his care rather than with a foster family. The issue is complicated by the fact that, justified or not, the father’s access to date has been supervised access and by the fact that the father’s proposal involves relocating the children to Toronto.

[3] For the reasons that follow I have determined that a temporary order placing the children in the care of the Society is appropriate. The Society should have the flexibility to continue working with the parents with a view to reunification and to increase the father’s parenting time if either or both of those outcomes is appropriate.

Background

[4] The respondents are the biological parents of these two children. The mother has three other children from previous relationships. Apparently, the respondents lived together in Toronto from 2013 until 2014. One of their children was born during this period of co-habitation and the other was born after separation.

[5] The separation and involvement of the Children’s Aid Society was initially triggered by allegations made against the father by one of the older step-children. Since then, there have been further allegations and a criminal proceeding in which the father was acquitted. Given the various complaints and the different burden of proof in a criminal trial, the acquittal has not eliminated the Society’s protection concerns viz-à-viz the respondent father.

[6] There have also been concerns in regard to the mother’s ability to care for and protect the children. The mother has had mental health and other health issues and has been in relationships that have been of concern to the Society. Despite these concerns, until the recent crisis, the children have been continuously in the care of the mother. There has been a series of supervision orders. During the relevant period of time, the father has had regular but supervised access. The mother lives in Ottawa and the father lives in Toronto. He is now married to A.A. He and his wife do not have any other children.

[7] There have been two previous final orders. On May 8, 2017, Shelston J. made an order placing the children with the mother under a six month supervision order. The father was given supervised access through the CAS. Initially the access was supervised by the Society. On April 18, 2019, Shelston J. made an order placing the children in the care of the mother on a five month supervision order. The father was given increased access supervised by his wife A.A. As a term of that order and despite the increase in access, the father was not to be alone with the children.

[8] Pursuant to these arrangements, the father has been exercising day access with the children every second weekend. The Society’s assessment of his access visits has been positive. Access has occurred in Ottawa and there has not been overnight access.

[9] On September 17, 2019, the Society initiated this Status Review Application. There were renewed protection concerns in relation to the mother but the Society proposed the children would remain in her care under a closely monitored supervision order. Although access with the father was viewed as positive, the Society remained cautious. The Society proposed that that access be in its discretion as to the duration, frequency and level of supervision. This would have allowed the Society to increase access and relax supervision requirements should it appear appropriate to do so.

[10] In her Answer, the mother proposed an end of formal supervision, that she have custody and the father would have gradually increased access which would ultimately transition to include overnight access in Toronto. It appears the mother recognizes the father can play a positive role in the life of the children.

[11] In his Answer, the father proposed that he would have custody and alternatively that his access be greatly expanded. He denied the ongoing need for supervision of his access. He asserts that there is no basis for any of the complaints made against him and in particular the complaints which subjected him to a criminal prosecution.

[12] On November 26, 2019, the mother reported to the Society that she was in crisis and was unable to care for the children and requested they be brought to a place of safety. The children were apprehended – or in the parlance of the new legislation, taken to a place of safety.

[13] The Society now seeks an order that the children be placed in the temporary care of the Society with access to the mother at the Society’s discretion and access to the father as per the existing order.

[14] The mother supports this order and is actively working with the Society in hopes the children can be returned to her care prior to the status review hearing. She remains open to increasing the father’s access under appropriate terms.

[15] The father opposes the motion and instead proposes the children be placed in his care. He argues that there is no substance to the allegations previously made against him and points to findings made during the criminal trial, particularly credibility findings against the mother. He argues it is in the best interests of the children to be in the care of a parent rather that with strangers as is the case while in foster care.

Analysis

[16] This motion is governed by section 113 (8) of the Child, Youth and Family Services Act.[^1] This provides that the children should presumptively remain in the care and custody of the person or Society having charge of the child at the time the status review application is initiated until the application is disposed of. The court may make a temporary order changing the status quo only if the court is satisfied that the children’s best interests require a temporary change in the care and custody. As held by Shelston J. in CAS Ottawa v. R. E., 2016 ONSC 3959, the best interests test articulated in what is now section 74 of the CYFSA is the appropriate test.

[17] In the case at bar, there has been a material change due to the inability of the mother to care for the children and the fact that they have been taken to a place of safety. In part, this was brought about by the recent diagnosis of Multiple Sclerosis received by the mother, a situation she now claims to be in remission. The mother also attests that she is working to ameliorate all of the Society’s concerns and to put herself in a position to resume care of the children. She argues that she behaved responsibly by contacting the Society when she was overwhelmed.

[18] The evidence supports the father’s contention that he has faithfully and regularly exercised his access. It is apparent that the children are bonded with him and the access time appears to be positive. There is no evidence to suggest that time spent with the father and with A.A. as currently structured is anything but positive.

[19] It does not follow that the best interests of the children would be served by putting them in the care of their father and relocating them to Toronto. Despite regular positive access in the past two years, it has all taken place in Ottawa and has not been overnight access. The regular and habitual residence of the children is in Ottawa and they have been used to daily contact with the mother. The inability of the mother to care for the children appears to be temporary although of course that may prove to be overly optimistic. The Society has amended its proposed plan of care.

[20] Based on the evidence before me, it is in the best interests of the children to remain in Ottawa with regular contact with both the mother and the father. There is no reason however, that the father’s access should not be expanded in the manner that was under consideration with a view to transition to overnight access in Toronto with appropriate safeguards after a home visit and assessment by Ottawa or Toronto CAS.

Conclusion

[21] There will be a temporary order placing the children in the care of the Society. The mother shall have regular access in the discretion of the Society including overnight access if the Society deems that advisable.

[22] Subject to approval of the Society, the father’s access may be expanded. If the Society deems it appropriate, he may have overnight visits in Ottawa or Toronto of up to two nights over the holiday season and such further access as may be appropriate in the view of the Society, every second weekend until the resolution of the status review. Unless and until the Society deems it appropriate to permit unsupervised access, the father shall not be alone with the children but shall be in the company of A.A. or such other supervisor as the Society may approve.

[23] All other terms and conditions of the current supervision order remain in place.

Mr. Justice Calum MacLeod

Released: December 18, 2019

COURT FILE NO.: FC-15-2605-4 DATE: 2019/12/18

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF A.P. born […], 2013 and N.P. born […], 2015

BETWEEN:

The Children’s Aid Society of Ottawa Applicant

–and–

S.P. (Mother)

• and - K.P. (Father) Respondents

endorsement

Mr. Justice Calum MacLeod

Released: December 18, 2019

[^1]: Child, Youth and Family Services Act, S.O. 2017, c.14, schedule 1, as am.