Court File and Parties

Court File No.: FC-20-429 Date: 2020-07-16 Superior Court of Justice - Ontario

Re: Dnaagdawenmag Binnoojiiyag Child and Family Services, Applicant And: A.D.-M. and D.W., Respondents

Before: J.P.L. McDermot

Counsel: Thomas Milne, for the Applicant Alayna J. V. Woodley, for the Respondent, A.D.-W. Matthew A. Giesinger, for the Respondent, D.W. Christopher Severn, for the Maternal Grandmother, K.D-W.

Heard: June 24, 2020

Endorsement

[1] Child welfare litigation often begins in a chaotic and difficult manner, with the apprehension of children from their parents because of risks posed to the children from those caregivers. This is especially so where parents or grandparents are already competing for care of the children; the residential arrangements after apprehension become crucial to the outcome of that competition.

[2] This is such a case. The Respondents, A.D.-M. and D.W. are the mother and father of two very young children, their son, T.W., who is two years of age and a daughter, A.W. who is just 13 months of age. K.D.-M. is A.D.-M.’s mother and therefore the children’s maternal grandmother.

[3] A.D.-M. and D.W. had a brief relationship and separated in December, 2018 when T.W. was only seven months old. D.W. lives in Windsor, Ontario. Since then, outside of a brief reconciliation, D.W. acknowledges that he has only seen the children three or four times.

[4] In the meantime, both K.D.-M. and A.D.-M. have been raising the children. Both claim to have been the primary caregiver of the children throughout and they have now become adversaries as each is claiming primary residency of the child.

[5] Both K.D.-M. and A.D.-M. have struggled with their own relationship between each other, which has been difficult and chaotic. It has been difficult for mother and daughter to co-parent the children. Most lately, the parties occupied two apartments across the hall from each other in Loretto. The maternal grandmother’s niece rented apartment #4; the Respondent Mother recently rented apartment #5. The children slept in apartment #4 but the parties spent most of their time in apartment #5.

[6] According to the agency worker, Peter Opoku Amoako, the children were placed with the maternal grandmother through a Voluntary Service Agreement on May 15, 2020. [1] The worker deposed that K.D.-M. had moved into a hotel with the child because her housing was unsafe and cluttered. K.D.-M. was to supervise access between the Respondent Mother and her children.

[7] On June 5, 2020, the agreement collapsed after a physical altercation between K.D.-M. and A.D.-M. The Respondent Mother was charged with assault. The Applicant agency, Dnaagdawenmag Binnoojiiyag Child and Family Services (“DBCFS” or “Dnaagdawenmag”) terminated the agreement after apprehending the children who are now in care.

[8] This proceeding was commenced by DBCFS on June 8, 2020. Only the Respondent Mother, A.D.-M. and the Respondent Father, D.W., were named as respondents in the proceeding. K.D.-M. takes exception to this; she notes that she was named as the primary caregiver for the child in the VSA and therefore should have been a party to these proceedings. She requests an order naming her as a respondent in these proceedings, and that the children be returned to her care under s. 94 of the Child, Youth and Family Services Act (the “CYFSA”).

[9] Dnaagdawenmag disagrees with K.D.-M. Mr. Milne, counsel for the agency, says that she should not be named as a party as it would unduly delay the resolution of matters in this case. As well, they do not believe that either the mother or the maternal grandmother will ensure the child’s safety while they plan for return of the child to A.D.-M. It is clear from the affidavit of Mr. Opoku Amoako, the agency worker, that DBCFS believes that the mother was the primary caregiver of the two children, and that the plan should be for the children to return to her care.

[10] A.D.-M. agrees that the children cannot be placed with her right now. But she is in favour of the agency’s plan to return the children to her care. She echoes the Agency’s position that K.D.-M. not be made a party to this proceeding as it would delay the return of the children to her care.

[11] D.W. lives in Windsor, but also has or will be filing an Answer and Plan of Care which calls for the placement of the children in his care. It is his position on the motion that the children should not remain in care, but should be immediately placed in his custody. He takes no position regarding the adding of K.D.-M. as a party to this proceeding, but disagrees with any suggestion that the children be placed with her.

[12] Therefore, the issues to be determined in this motion are as follows:

a. Is it in the interests of justice that K.D.-M., the maternal grandmother, be named as a respondent in these proceedings? b. Should the children remain in the care of DBCFS, placed with the maternal grandmother or with the Respondent Father, D.W.?

Addition of K.D.-M. as a Respondent

[13] There is little doubt that K.D.-M. was involved throughout in the lives of the children in issue in this proceeding. She co-parented with the Respondent Mother at times and at other times, the children were in her care. At other times, the children were in A.D.-M.’s care. The two major protagonists in this proceeding, the mother of the children and her mother, disagree on who was the primary caregiver of the children, but there is little doubt that both were intimately involved in the upbringing of the children. The terms of the VSA make this clear.

[14] In light of this, K.D.-M. disagrees with the Society’s decision not to involve her in these proceedings. She says that she was always the primary caregiver of the children, and wishes to file an Answer and Plan of Care for the children which involves the children being placed in her care.

[15] As set out above, DBCFS disagrees with this and supports the position of the mother that she was, in fact, the primary caregiver of the children. They say that to give K.D.-M. the right to file a plan of care will interfere with their plan to place the children with the mother subject to terms of supervision. Surprisingly, they appear to believe that if the children cannot be placed with the mother, they should be placed with the father, D.W., who has rarely seen the children in the past 18 months. It is obvious that they do not believe that K.D.-M. can put forward any credible plan for the care of the children.

[16] As stated above, DBCFS determined that only the mother and the father of the children would be named as respondents in this proceeding.

[17] Under the CYFSA, the agency commencing a proceeding must name all “parents” of a child or children as a party to the proceeding: see s. 79(1)3 of the Act which states that the “child’s parent” is a party to the proceeding.

[18] As well, it appears that the definition of parent includes “[a]n individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child”: see s. 74(1)7 of the CYFSA. Mr. Severn notes that his client fits squarely within this definition, having been named as a caregiver of the children in the VSA as follows: [3]

a. In para. 1, the VSA states that, “The children will reside in the primary care of the maternal grandmother, [K.D.-M.], in the mother’s home located at Unit * – **** C***** Rd. , Loretto, ON, L* ***.” b. Although the intention of the VSA was that the mother work on her issues so that she could eventually care for the children, para. 5 of the agreement also provided that “[t]he mother agrees for the maternal grandmother to be assessed as an alternate caregiver while the mother continues to work on addressing her needs as a parent.” c. Paragraph 8 of the agreement provided that the maternal grandmother was intended to act as a parent to the children when it stated that, “The maternal grandmother agrees to maintain a stable and consistent environment for the children which includes regular bedtimes, regular mealtimes and regular bath times etc. The grandmother will provide adequate supervision and will meet the developmental, emotional, and physical needs of the children overall.” d. Paragraph 12 of the agreement required the maternal grandmother to “undergo a kin service assessment” and it further stated that the VSA “stands as a voluntary agreement by the mother and the Agency for the maternal grandmother to care for the children on an interim basis in a kin service arrangement.”

[19] It is clear that the terms of the agreement alone meant that the maternal grandmother would qualify as a parent of the children within the meaning of s. 74(1) of the CYFSA. Based upon the terms of the agreement, Dnaagdawenmag should have named the maternal grandmother as a Respondent in these proceedings as she qualified as a “parent” of the children under the definition section of that Part of the CYFSA. The fact that DBCFS has lost faith in K.D.-M. is no basis for not following the legislation and including her as a party.

[20] In argument, however, Mr. Milne suggested that when DBCFS terminated the VSA on June 10, 2020, this meant that the maternal grandmother no longer fit within the definition of a parent under s. 74(1) of the CYFSA when these proceedings began two days earlier. The worker sent the letter terminating the agreement on June 10, but stated in his affidavit that the letter was “retro-dated” to June 5, 2020; [4] Mr. Milne suggested that the agreement was therefore at an end as of the date that the apprehension occurred. Accordingly, he submits that there was no requirement on Dnaagdawenmag to name the maternal grandmother as a party when commencing proceedings on June 8, 2020.

[21] Section 79 states that the “following are parties to a proceeding” and it then goes on to include the “child’s parents” below. Section 74(1)7 states that a parent “means each of the following persons”, going on to include a party provided with custody of a child under a written agreement. Both provisions speak in present terms which would have applied as of the date of the issuance of the application.

[22] The VSA was only terminated by letter sent to the parties on June 10, 2020. Under s. 76(2) of the CYFSA, the termination of an agreement can only take effect a minimum of five days after written notice is given under s. 76(1):

(2) Where notice is given under subsection (1), the agreement terminates on the expiry of five days, or such longer period not exceeding 21 days as the agreement specifies, after the day on which every other party has actually received the notice.

[23] There is no discretion on a child protection agency to terminate the agreement any earlier than that permitted in s. 76(2). Certainly, there is no ability to “retro-date” a letter terminating an agreement; under s. 76(2), the termination date of the agreement is five days “after the day on which every other party has actually received the notice.” Therefore, on the date that the application was issued, June 8, 2020, the maternal grandmother was then a parent within the meaning of the CYFSA and should have been named as a party; the failure to do so was a breach of s. 79(1)3 which required all parents to be named as parties. The court cannot condone the breach of the legislation by now dismissing the motion of K.D.-M., which motion would only set things right.

[24] That breach also cannot be cured by a supposed retroactive termination of the agreement. Firstly, as noted, there is no ability for an agency to retroactively terminate an agreement under s. 76(2). Secondly, while parties can agree to do things; they cannot agree to change the basic facts and law governing a situation. The purported retroactive termination of the agreement cannot change the fact that on the date of the issuance of the Application, the maternal grandmother was a parent within the meaning of the CYFSA and should have been named as a party to this proceeding.

[25] Although this, on its own, would in my mind be sufficient grounds to grant the motion, I will also consider briefly the criteria under which a party may be added as a respondent apart from her standing at the commencement of the application.

[26] Under Rule 7(3) of the Family Law Rules, the court may name as a party “every other person who should be a party to enable the court to decide all the issues in the case.” Mr. Severn submits that, even were K.D.-M. not a parent within the meaning of the CYFSA, she should be named as a party as her past involvement as a caregiver and her position in this litigation should be sufficient to allow her to present a plan of care regarding parenting of these children.

[27] In light of these provisions, which give the court broad discretion to add a party to a proceeding, grandparents have been joined as parties to child protection proceedings on a number of occasions: see Children’s Aid Society of Hamilton-Wentworth v. M. (A.), 1990 ONSC 3819, [1990] O.J. No. 1723 (U.F.C.), Lalonde v. the Children’s Aid Society of Metropolitan Toronto, 1995 ONSC 5589, [1995] O.J. 119 (Gen. Div.) and Children’s Aid Society of London and Middlesex v. H.(S.), 2002 ONSC 46218, [2002] O.J. No. 4491 (S.C.J.).

[28] In deciding H.(S.), Campbell J. identified five factors to be taken into account as to whether a person should be added as a party to a child protection case:

1. Would this person’s addition as a party serve the child’s best interests?
2. Would this person’s addition as a party delay or prolong proceedings unduly?
3. Is this person’s addition as a party necessary to determine the issues?
4. Is this person capable of putting forward a plan that is the child’s best interests?
5. Does this person have a legal interest in the case?

[29] In Children's Aid Society of Toronto v. C.K., 2013 ONCJ 342, Sherr J. suggested three additional factors:

a. Whether the person who is proposed as a party can provide a meaningful plan of care for the children; b. The fact that the party may be a witness or have evidence useful to the resolution of the issues is not a valid basis on its own to name the individual as a party; c. The potential success of the plan of care is not a basis for not naming the person as a party; the only issue is whether the plan “merits consideration” in naming the person as a party.

[30] Mr. Milne argued that on all of these criteria, K.D.-M.’s claim to be added as a party fails. However, he failed to provide evidence regarding the various factors. I am still not clear, for example, how the addition of the maternal grandmother would not serve the child’s best interests when she was seen as a protective caregiver by DBCFS as late as May of this year. In fact, although DBCFS disagrees, the maternal grandmother says that she was always the primary caregiver for the children and that it is in the best interests of those children that her plan be considered for care of the children.

[31] I was provided with a draft Answer and Plan of Care prepared by K.D.-M. The plan provides that the children be placed with her subject to terms of supervision. The terms could address the housing issues and the domestic conflict which led to the termination of the VSA and to the apprehension of the children.

[32] It is apparent that the agency is adamant that it does not wish to place the children with their grandmother at all costs. Surprisingly, DBCFS, while advocating for a three or six month interim society care order with a view to returning the children to the mother, has as its fallback position that the children be placed with their father in Windsor, depriving the children of meaningful contact with their mother or grandmother. Dnaagdawenmag is not willing to consider any sort of placement with K.D.-M. whatsoever.

[33] This position seems to inform the agency’s position regarding the addition of the maternal grandmother as a party. It appears to be the position of the agency that no plan that the grandmother might put forward has any merit. After argument of the motion, I found myself at a loss as to why this was the case. I did not understand why DBCFS took the position it did and continues to do so. However, whatever their position is as to the merits, the fact that they do not agree with her plan is not a basis for rejecting K.D.-M. as a party to this proceeding. Dnaagdawenmag has to show that her plan has no merit and they have failed to do so in their materials.

[34] There was argument that the grandmother’s plan might delay resolution of the issues, considering the adversarial relationship between the Respondent Mother and the maternal grandmother. Mr. Severn acknowledged that there would be a delay resultant from his client being named as a party. However, the issue as set out in point 2 of H(S) is whether the delay would be “undue” which implies that the delay would not be worthwhile or vexatious and a waste of time, considering the plan being placed by the grandmother.

[35] I do not consider this to be the case. The fact is that the father has been made a party even though his contact and relationship with the children has been extremely limited over the past 18 months. His plan does not need to have merit; he is able to file a plan and delay matters if he wanted. Contrast this with the maternal grandmother who has been extremely involved, if not having been the primary caregiver of the children for much of their lives; that remains to be determined. She is being told that she cannot delay proceedings notwithstanding her importance to these children throughout their lives. That makes no sense and does not address the children’s best interests.

[36] I therefore do not find there to be undue delay when an individual who has been intimately involved with the children through their lives wishes to place a plan of care before the court for consideration. There can be little doubt that it is in the best interests of the children that an involved caregiver be given an opportunity to provide a plan of care, to call evidence and to advocate for her position in these proceedings. None of these are possible for a non-party and Dnaagdawenmag has not explained why this would not be in the best interests of the children.

[37] Therefore, there shall be an order naming K.D.-M. as a respondent in these proceedings. She shall be entitled to file the plan of care that was provided to me and to take an active role in these proceedings.

Temporary Care of Children

[38] These children were apprehended on June 5, 2020. Upon the apprehension of children, the Society has five days to place the matter before the court. Once brought before the court, the section of the CYFSA regarding adjournments, s. 94, applies:

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child, (a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; (b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; (c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or (d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[39] The children are in the care of DBCFS at present. Based upon the above, the court is provided with an order of things in considering care of a child after apprehension:

a. Firstly, the court must consider whether the child should be returned to the person who was caring for the child immediately prior to apprehension. Under the section, the court can only refuse the return to that person if “there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm” and terms of supervision would not protect the child from harm; b. Only once the court determines that the child cannot be returned to that person because of a risk of harm, then the court must consider whether it “it is in the child’s best interests …to place the child in the care and custody of a person who is a relative of the child”; c. Only if neither of these options are possible, then the court may order that the child remain in the care of the child protection agency.

[40] In the present case, the only two people who “had charge of the child immediately before intervention” were the mother and grandmother of the children. This is confirmed by the terms of the VSA which placed the children in the care of the maternal grandmother. As discussed above, that agreement was still in force when the children were apprehended and placed in the care of Dnaagdawenmag.

[41] The father D.W. has asked for an order caring for the children as well. However, his plan can only be considered if I find risk of harm in placing the children with either A.D.-M. or K.D.-M. as he stands in the place of a “relative of the child” under s. 94(5) as he clearly did not have care of the children immediately prior to apprehension.

[42] The agency requests that the children remain in its care while it works on a plan to place the children with A.D.-M. That plan reflects the direction in which the agency wishes to move, with an ultimate order for interim society care under s. 101(1)2 pending a return to the mother.

[43] Whatever the intentions of DBCFS, the court must firstly consider whether a return to either of the caregivers, with or without terms of supervision, on the date of apprehension poses a risk of harm to the children. If not, the children must be returned to either of those caregivers failing which I can then consider the father’s plan for the children to be placed with him. Agency care takes third place.

[44] The Respondent Mother, A.D.-M., acknowledged in argument that she is not in a position to assume care of the children. She wishes the children left in the care of the agency, with a plan to return the children to her care. She is not in favor of the children being placed with her mother.

[45] K.D.-M. says that she is in a position to care for the children, which she says has been the status quo for most of these children’s lives. She says that, apart from the legislative requirements, this would be best for the children.

[46] The affidavits of Peter Opoku Amoako do not fully address the issue of risk arising from the maternal grandmother resuming care of the children. This is because the agency worker does not appear to recognize that K.D.-M. was an individual who could possibly be awarded with care of the children. As far as the agency is concerned, it seems to have accepted the narrative of A.D.-M. as to who was the primary caregiver of the children throughout. The focus of the agency, to the exclusion of other plans, is therefore to place the children with the Respondent Mother first, and after that, with D.W., the Respondent Father.

[47] However, this motion does not address long term plans for the placement of the children; it is to address temporary care which has its own set of rules. The test for return to a caregiver is risk of harm. From the worker’s three affidavits, it appears that there is a risk of harm if the children are placed with the maternal grandmother as follows:

a. K.D.-M. has failed to provide safe and secure housing for the children; b. K.D.-M. has failed to prevent adult conflict between her and her daughter in the presence of the children; and c. K.D.-M. has exposed the children to her husband, C.W., who has been convicted of assault and breach of probation in respect of contact with K.D.-M.

[48] In all of this, the affidavit of Peter Opoku Amoako discloses that, if the children did have their primary residence with K.D.-M., she was unable to maintain a safe and stable home for the children over the months leading up to the children’s apprehension. There was substantial evidence, partially corroborated by K.D.-M.’s own affidavit, to show that K.D.-M.’s care for the children was simply unacceptable. She did not have stable housing, living in a cluttered and unsafe situation with a bathtub that did not work and with fighting, drinking and general chaos surrounding the children. At one point, Dnaagdawenmag moved her and the children into a hotel because the apartment was unsuitable for the children. Although K.D.-M. was supposed to clean things up, it is unclear that she as actually able to do so. K.D.-M. also did not pay the June rent on her apartment, relying upon Covid restrictions on eviction to maintain her housing with the children. She permitted her husband, C.W., a clearly unsafe individual suffering from alcohol and anger issues, into contact with herself and the children, and then minimized concerns about him in her affidavit. She also permitted the adult conflict between herself and her daughter to continue notwithstanding the fact that this has been an issue throughout since 2018.

[49] Throughout all of this, she takes very little responsibility for her actions, or lack of actions. She blames her daughter for the adult conflict; it is apparent to me from the text messages that she was unable to do her part to avoid conflict with her daughter. She blames her daughter for the cluttered apartment which does not jive with the fact that she removed much of the contents of apartment 5 after she locked A.D.-M. out of that apartment when the criminal charges were laid. She blames the Society worker for failing to support her position as a caregiver of the children and in placing her in an untenable situation when she was moved into a hotel because of the conditions in the apartment in which she was living with the children. Regarding C.W., she says that because she understood that because there were no restrictions by DBCFS regarding contact between himself and the children, she did not have to ensure that he was not around herself and the children: however, if K.D.-M. wants to be a caregiver, she should have recognized that C.W. should not be in her residence when the children were present. K.D.-M. does not acknowledge that any of the problems which have occurred may rest with her, which leaves the court concerned as to whether she is capable of sorting out her own issues in addressing the children’s safety issues.

[50] All of this goes to the issue of whether K.D.-M. can maintain a safe home for the children or ensure that they will not be subject to harm if they are returned to her care with or without terms of supervision. This is the major criterion under which the court determines whether children are returned to her care under s. 94(4) of the CYFSA.

[51] From the material that I have reviewed, I believe that the grandmother, K.D.-M., is able to provide a safe and stable home for both children, both by virtue of her proven ability to care for these children, and through terms of supervision to address the issues set out above.

[52] Firstly, it is apparent to me from the materials that K.D.-M. has, in the past, provided stability for these children in both her parenting abilities and in addressing the children’s basic needs. The text messages attached to her affidavit indicate that K.D.-M. has been attending to feeding the children and in ensuring that they have a routine, including regular sleep hours and a regular bedtime. As well, one of the text messages speaks to K.D.-M. taking the children to the doctor, and the children’s physician has confirmed that K.D.-M. addresses the children’s medical issues and has been largely responsible for getting the children to the doctor and engaging in the children’s basic health care needs. [6] It appears that the maternal grandmother is able to adequately address the children’s basic needs, and the fact that the agency placed the children in the primary care of K.D.-M. in the VSA on May 29 confirms this as well.

[53] There are, however, other concerns as outlined above. Firstly, there is the issue of housing. However, it is clear from the material filed by the maternal grandmother that she has obtained adequate housing through Biminaawzogin Regional Aboriginal Women's Circle (“BRAWC”). [7] The housing issue appears to have been resolved.

[54] The other issues mentioned, adult conflict and C.W., can be addressed through terms of supervision keeping both A.D.-M. and C.W. away from K.D.-M. when the children are present. As far as the issue of supervision of access by K.D.-M., that is obviously not workable as far as the maternal grandmother and her daughter are concerned; the VSA broke down because the long standing adult conflict between mother and daughter made access supervision by K.D.-M. impossible. Therefore, as would be done at present when the children are in care, the mother’s access to the children should be addressed through the Dnaagdawenmag worker as suggested in his affidavit.

[55] Therefore, I am going to order the return of the children to K.D.-M. subject to terms of supervision.

[56] I wish to emphasize that none of this means that the agency’s plan to place the children with the mother are at an end. Those plans can continue notwithstanding the placement of the children with K.D.-M., which also appears to have been the intent of the VSA signed May 29, 2020. I note that the plans of DBCFS to place the children with a certain individual are not a basis under s. 94 as to whether children would be placed with a pre-apprehension caregiver rather than remain in the care of the agency. In my view, it is also obviously better that children be placed with a long term caregiver such as K.D.-M. rather than remain in agency care, but best interests also do not come into that determination; the issue is whether the children would be likely to suffer harm if they are returned to the caregiver with whom the children were at the time of apprehension. In this case, those caregivers were either the Respondent Mother or the maternal grandmother and the Respondent Mother has acknowledged that she cannot care for the children right now. Therefore, the only option is K.D.-M. and I find that the risk of harm can be eliminated through terms of supervision and the steps that K.D.-M. has taken since the apprehension. I note that a breach of any of these terms of supervision would be a basis for the termination of K.D.-M.’s care of the children.

[57] Because I have determined that the children are safe to be returned to the care of the maternal grandmother, I do not have to address the Respondent Father’s request for care of the children. I would note that to place the children in Windsor would make contact between the children and both their mother and grandmother extremely difficult and costly considering the financial limitations of the parties. They are long term caregivers, and this would not be in the best interests of the children as required under s. 94(5) of the CYFSA.

[58] Therefore, there shall be an order to go as follows:

a. The maternal grandmother, K.D.-M., shall be named as a respondent in these proceedings and shall have 30 days to serve and file an Answer and Plan of Care; b. On a temporary basis, the children shall be returned to the care of K.D.-M. subject to the following terms of supervision: i. Prior to the children being placed into her care, she will have obtained possession of a two-bedroom apartment suitable for the children through BRAWC; ii. K.D.-M. shall maintain a safe and uncluttered home for the children so long as they are in her care; iii. K.D.-M. shall cooperate in all ways with the agency worker and the DBCFS worker shall be entitled to make announced and unannounced visits to the mother’s home and shall be entitled to access to the home at all reasonable times in order to inspect the home and ensure the children’s well-being and compliance with these terms of supervision; iv. K.D.-M. shall not have direct or indirect contact with either her daughter, A.D.-M. or her husband C.W. when the children are in her care; v. K.D.-M. shall attend to all necessary visits with the children’s medical and other caregivers and shall sign all necessary consents so that the agency worker can obtain information directly from those caregivers. c. The Respondent Mother, A.D.-M. and the Respondent Father, D.W., shall have access to the children according to the discretion of DBCFS, but at a minimum no less than the access set out in para. 40 and 41 of the affidavit of Peter Opoku Amoako sworn June 12, 2020.

[59] Mr. Severn has requested costs against the agency based upon his having had to bring a motion to add his client as a party to these proceedings. If he wishes to proceed in light of Rule 24(2) of the Family Law Rules (which removes the presumption of a successful party obtaining costs in a child protection matter), he may do so by serving and filing written costs submissions within 10 days of the release of this endorsement. If no submissions are filed by Mr. Severn within that 10 day limit, this will mean that his client’s claim for costs is deemed to be abandoned. DBCFS shall provide responding material within 10 days of being served with Mr. Severn’s costs submissions. Costs submissions to be filed with the judicial assistant, and to be no more than four pages in length not including bills of costs and offers to settle.

McDermot J. Date: July 16, 2020

[1] But only signed on May 29, 2020: see Ex. A of the affidavit of Peter Opoku Amoako on June 12, 2020. [2] S.O. 2017, c. 14 [3] See Ex. A of the affidavit of K.D.-M. sworn June 15, 2020. [4] See para. 18 and Ex. B of the affidavit of Peter Opoku Amoako sworn June 12, 2020. The letter confirms that the agency had verbally notified the parties that the agreement was terminated when the children were apprehended. However, the verbal notification was ineffective to terminate the agreement as notice to terminate must be “written” under s. 76(1) of the CYFSA. [5] O. Reg. 114/99 [6] See Ex. E to the affidavit of K.D.-M. sworn June 15, 2020. [7] See Ibid., Ex. L as well as the affidavit of K.D.-M. sworn June 24, 2020 (although I note that in the latter affidavit, K.D.-M. says that she will be attending the zoom argument of the motion from her new residence; in fact, she was in her car when she attended the motion).