COURT FILE NO.: FC-20-278

DATE: 2020/12/18

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.

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHILDREN’S AID SOCIETY OF THE REGION OF WATERLOO, Applicant (Moving Party)

AND: T.C., Respondent Mother

AND: R.H., Respondent Father

BEFORE: Madam Justice J. Breithaupt Smith

COUNSEL: Ms. Charu Smith for the Applicant Society Mr. Gerald Punnett for the Respondent Mother Mr. Walter Wintar for the Respondent Father, Moving Party

HEARD: December 16, 2020

E N D O R S E M E N T -- COVID 19 PROTOCOL

[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/

[2] In accordance with the consolidated Regional Notices to the Profession issued on June 26, 2020 (effective July 6, 2020) and on December 1, 2020 (effective December 2, 2020) and the Protocol for Central South dated April 7, 2020, the following materials were filed electronically:

a. Father’s Notice of Motion dated November 12, 2020 returnable December 16, 2020;

b. Father’s Affidavits sworn July 30, 2020, August 18, 2020, November 11, 2020 and December 11, 2020;

c. Affidavit of T.S., Father’s partner, sworn November 11, 2020;

d. Affidavit of Deanne Boyes (Brantford Family Services Worker), sworn June 10, 2020;

e. Affidavits of Catherine Bird (Waterloo Family Services Worker), sworn June 10, 2020, June 18, 2020, July 25, 2020 and August 13, 2020;

f. Affidavit of Silvia Cuevas (Waterloo Family Services Worker), sworn June 10, 2020;

g. Responding Affidavit of Christian Appleton (Current Family Services Worker) sworn November 26, 2020;

h. Mother’s Affidavits sworn June 11, 2020, July 20, 2020, August 6, 2020 and November 13, 2020; and

i. Affidavit of Mother’s partner, B.L., sworn November 13, 2020.

[3] This is Father’s Motion seeking to have the seven-month-old child, M., placed in his care on a Temporary basis under terms of supervision (“Change of Placement Motion”). Father’s Motion is brought under section 94(9) of the Child, Youth and Family Services Act, 2017 (“CYFSA”) which permits a Court to vary or terminate a Temporary Order made under section 94(2) at any time. The Society supports Father’s Motion. Mother opposes Father’s Motion and brings her own cross-motion seeking to have M. placed with her.

[4] This family is subject to the Temporary Without Prejudice Order of Justice G. B. Edward dated June 12, 2020 (made on the consent of the parties at that time) placing M. in the care of the Society. The file was transferred to Waterloo Region from Brantford on June 24, 2020, and a Risk Hearing was held before Justice J. Walters on August 19, 2020 at which time the Society sought placement of M. with Father. In her Endorsement dismissing the Society’s Change of Placement Motion, and thus rendering the Order of Edward, J. Temporary, Her Honour concluded with respect to Mother:

[56] I agree with the Society that history is a good predictor of the future. The mother has had a substantial history with child protection agencies and has had three other children removed from her care previously. Although she shares joint custody of those children, if she does not reside with the person with whom she shares custody, the children are to remain with that caregiver not the mother. The mother left the home where her three non-subject children are and is not currently caring for them.

[57] Based on the mother’s history with the Society and her lack of cooperation in following the family plan constructed to keep the child in her care, I agree with the Society that there are reasonable grounds to believe that there is a real possibility that if the child is returned to the care of the mother it is more probable than not that he will suffer harm.

[58] The Society developed a safety plan with the mother to keep the child in her care following his birth. The mother did not follow the plan and moved out of the home where she was to reside with the child and her supports. No one knew where she went with the child and a warrant was obtained in order to locate and apprehend the child from the mother’s care.

[60] I am not satisfied based on the evidence filed that if the child was returned to the care of the mother that he could be adequately protected by terms of a supervision order. This is an infant child and he cannot participate in a safety plan which therefore makes him more vulnerable. The mother’s current partner has chosen not to cooperate with the Society which therefore makes her plan more difficult to assess. The mother has had three of her previous children removed from her care and they are being raised by someone else. The mother’s previous assessments also indicate that she is unable to care for a child without strong supports in place. When the Society put a plan in place the mother did not follow it.

[61] For these reasons, I am not prepared to return the child to the care of the mother.

[5] And with respect to Father:

[84] I am not satisfied based on the evidence filed that if the child was returned to the care of the father that he could be adequately protected by terms of a supervision order. This is an infant child and he cannot participate in a safety plan which therefore makes him more vulnerable. The father as recently as July and August 2020 could not regularly attend access visits at the Society’s office. He also did not communicate with the Society worker that he had a problem, which resulted in the child being transported on multiple occasions to a visit without the father. The mother attests that the father continues to use drugs and alcohol which concerns her as that was a problem when they were involved. The father admits to continued alcohol use despite his previous admission to the Society worker that alcohol is a problem for him. The Society’s records indicate that they are unable to determine whether the father is being honest with them and much of what the Society has relied upon in its recent material is the father’s own reporting.

[85] For these reasons, I am not prepared to return the child to the care of the father.

[6] Mother is developmentally challenged. The challenges that arise in that context underpin most of the protection concerns that arise with respect to her ability to be primary caregiver to an infant. Mother is in the process of obtaining funding to enable an updated assessment to be conducted, and so the most recent evidence in that regard (which I rely upon pursuant to section 94(10) of the CYFSA) is the 2016 report completed by Sharon LeBlanc of Developmental Service Ontario Southwest Region (the “LeBlanc Report”). At the outset, the LeBlanc Report describes its intent as “to explore the support needed to allow [Mother] to experience and successfully participate in life like a typical 25-year-old.” Both Maternal Grandmother and an Adult Protective Services worker from Bruce-Grey Child and Family Services participated in the interview process in support of Mother. Two areas were assessed: medical needs and behavioural needs. The LeBlanc Report concludes that Mother has no need for support for her medical needs, but that her “percentile of [behavioural] support needs falls to the 5th percentile compared to others with a developmental disability. The average person with a developmental disability is in the 50th percentile and is not considered to have exceptional medical or behavioural support needs. [emphasis in original]” Looking at a subscale of activities, Mother was assessed as being in the 5th percentile in “Home Living” and “Health and Safety” and in the 2nd percentile in “Community Living.”

[7] In Catholic Children’s Aid Society of Toronto v. R.M.,[^1] Sherr, J. distilled the conflicting caselaw that had considered the interpretation and application of section 94(9) of the CYFSA into a clear analysis:

[83] The court will apply the following legal test to change a temporary placement order during the adjournment of a protection application:

a. The moving party has the onus of first establishing a material change in circumstances since the making of the last court order.

b. The court should take a flexible approach in determining what constitutes a sufficiently material change in circumstances. What is sufficiently material will depend on the circumstances of the case.

c. Once a material change in circumstances is established, a contextual analysis should be conducted by the court to determine if the placement order should be changed. The purposes in section 1 of the Act should always be at the forefront of the analysis. The suggested, non-exhaustive list of factors set out in paragraph 69 above should be considered, where relevant.

[8] Having regard to the need to demonstrate a material change in circumstances, it is important to note at this point that the Affidavits which pre-date August 19, 2020 (being the date of argument of the Risk Hearing) are useful only for background information. The Affidavits sworn thereafter are the primary resource for the Court in determining whether a “sufficiently material change in circumstances” has taken place to justify a change to the existing Temporary Order of Justice Edward.

[9] Mother’s Affidavit of November 13, 2020 does not disclose any material change in her circumstances. She attests to having access with the child three times weekly, for two hours on each occasion, supervised by Mr. Appleton. She advises that access is going well and that she and M. are closely bonded. She attaches to her Affidavit a one-page document entitled “SDRC Service Co-ordination Goal Plan” prepared by Sunbeam Developmental Resource Centre which lists three goals: (1) return of M. to her care, commencing with unsupervised access; (2) securing “appropriate and affordable housing;” and (3) arranging to speak with a therapist “hoping they can direct her on right path, make sense out of things and get some strategies for coping.” While it is very positive to see Mother accessing SDRC resources, there is no evidence in Mother’s Affidavit of the status of progress regarding these goals, and the mere creation of a plan cannot be seen as “sufficiently material” to justify a change in the child’s placement. The Affidavit of Mother’s partner, Mr. B. M., contains only his statements that their apartment can be child-proofed to the Society’s satisfaction and that he supports Mother in seeking the return of M. to her care.

[10] In response, Mr. Appleton attests that access between Mother and M. has been going well, and that his interactions with Mr. B.M. and Mother have generally been positive and appropriate, with a notable exception on October 28, 2020 when Mr. B.M. became escalated during a discussion regarding M.’s car seat. Mr. Appleton indicates that Mr. B.M. apologized on October 14, 2020 “for being so angry with talking to me on previous occasions.” Mr. Appleton further attests that access has moved to semi-supervised (supervised exchanges with check-ins) in Mother’s home and will continue to expand if all goes well. These are very positive developments, and Mother’s access with M. must be protected moving forward, but I do not find them to be “sufficiently material” such that Mother has met the threshold for review as articulated by Justice Sherr.

[11] Mr. Punnett on Mother’s behalf further argues that Mother ought to be given more time so that an updated developmental assessment can be completed. The law on this point is settled, however, in that the legal process cannot be used as a strategy to “buy” a parent time; there must be an arguable notion that the child faces a better prospect than existed at the time of the removal on the basis that the parent has developed some new ability.[^2] Broadly speaking, delaying the proceeding and keeping a child in Society care when a family member – in this case a parent – is available so as to provide time for the other parent to remediate her situation cannot be said to be in the child’s best interests. This principle is specifically addressed by the hierarchy of placement options applicable to Change of Placement Motions. Section 94(2) reads:

94(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.

[12] All counsel agree that I am bound by this hierarchy, which means that if M. cannot be returned safely to Mother, he must be placed in the care of such other appropriate and consenting caregiver as is available. Arguably, levels of consanguinity could come into play in assessing different potential caregivers under section 94(2)(c), but that issue does not arise here. In this case, the appropriate alternate caregiver is Father.

[13] Father argues that there have been significant and material changes since August 19, 2020 such that he is now in a much better position to parent M. than he was at that time. On his behalf, Mr. Wintar identified three areas of necessary improvement from Justice Walters’ decision: (1) unreliable access attendance; (2) drug and alcohol consumption; and (3) an inability of the Society to assess his honesty. It is undisputed that Father has faithfully attended all access visits. Access has now expanded to alternate weekends, and, having regard to Foster Mother’s schedule, exchanges sometimes involve Father providing transportation for M. between homes. Mr. Wintar argues that the only allegations of his drug use come from Mother and are otherwise uncorroborated, and notes that any historic issues that Father may have had with alcohol have been addressed. Father clearly and repeatedly confirms in his evidence not only that he does not use drugs but that he rarely consumes alcohol and never drinks at home or while in a caregiving role. Finally, Father’s relationship with Foster Mother, with whom he has interacted more than 100 times at access exchanges since the hearing before Justice Walters, is extremely positive. If Father were behaving dishonestly or without integrity, undoubtedly such behaviour would have been reported to the Society by their employee, Foster Mother.

[14] Notably, Father is in a caregiving role (although admittedly not the primary caregiver) to his partner’s two children. In addition, Father’s two children from a prior relationship spend alternate weekends in his care. The Society has not expressed any concerns about parenting of any of these children by Father or his partner. Justice Walters expressed concern that an infant cannot participate in a safety plan, which concern was very real in August but has resolved now that the Society has been better able to assess the safety of Father’s household.

[15] For the Society, Ms. Smith notes that while challenges such as drug and/or alcohol use and access attendance may resolve over time, the same cannot be said for a parent’s own developmental limitations. I wish to make it clear that the Court in no way suggests that a developmentally-challenged parent is inherently incapable generally or that Mother in this matter will never be able to parent this child. However, in the absence of evidence demonstrating improvement to Mother’s functional ability to parent an infant, the concerns noted in the LeBlanc Report stand.

[16] Finally, it is imperative that Mother’s access with M. continue to expand and be monitored through the coming months, and Mr. Wintar for Father confirms that Father understands that Mother’s access with M. is in the Society’s discretion and that he will work collaboratively with the Society in this regard.

[17] Based on all of the foregoing, I find that Father has demonstrated a sufficiently material change in circumstances such that a change of placement is warranted. M. will be placed with Father on terms of supervision under section 94(2)(c) of the CYFSA. Temporary Order to go per draft signed today.

J. Breithaupt Smith, J.

DATE: December 18, 2020

[^1]: Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784 at paragraph 83. [^2]: Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423 at paragraph 98.