COURT FILE NO.: FC-20-00000347-0000 DATE: 2021-03-08
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 Family 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 Regional Municipality of Waterloo, Applicant
AND:
J.M and M.R. and C.L.F. and M.W. F. Respondents
BEFORE: The Honourable Madam Justice D. M. Piccoli
COUNSEL: Ben McIvor, Counsel for the Applicant CAS Worker: M. Mathews Ray Wrubel, Counsel for the Respondent, J.M. David J. Lang, Counsel for the Respondent, M.R. Anna Towlson, Counsel for the Respondents, C. L. F and M. W. F. Leanna E. Way, Counsel for the Child.
HEARD: February 24, 2021
CORRECTED ENDORSEMENT: The original Endorsement was released on March 8, 2021 and has been corrected as follows: On page 1, paragraph 1 and page 18, paragraph 83 (1) the date of birth has been redacted and on page 2, paragraph 2 under Father’s Materials (a) has been corrected to read “Affidavit of father”.
Endorsement
[1] This Endorsement relates to the Temporary Care Hearing held February 24, 2021, with respect to the child, D. B.-R., born [date of birth redacted] (the “child”).
Materials Reviewed
[2] The court considered the following materials on this temporary care hearing:
Society Materials: (a) Notice of Motion dated December 23, 2020; (b) Affidavit of Jessica Vanhevel dated December 23, 2020; (c) Affidavit of Martin Matthews dated January 14, 2021; (d) Affidavit of Martin Matthews dated February 5, 2021; (e) Society’s Factum dated February 12, 2021.
Mother’s Materials: (a) Affidavit of Mother dated February 2, 2021; (b) Affidavit of Mother dated June 2, 2020.
Maternal Grandparents Materials: (a) Affidavit of C.F. Maternal Grandmother dated June 1, 2020; (b) Affidavit of C. and M. F. (maternal step grandfather) (hereinafter collectively Maternal Grandparents) dated May 19, 2020; (b) Factum dated February 12, 2021.
Father’s Materials: (a) Affidavit of Father dated January 29, 2021; (b) Factum dated February 12, 2021.
Position of the Parties
[3] It is the position of the applicant, the mother (“Mother”), the maternal grandparents (“Maternal Grandparents”), and the Office of the Children’s Lawyer (“OCL”) that the child remains in the care of his maternal grandparents.
[4] The applicant, the Children’s Aid Society of the Regional Municipality of Waterloo (“CAS”), takes the position that the Maternal Grandparents had charge of the child immediately before the intervention of CAS on December 21, 2020. Accordingly, and as Mother concedes, the child cannot be returned to her care under Part I of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) and is to remain in the care of the Maternal Grandparents. If I do not accept this position, then the CAS states I am required under Part I of the CYFSA to choose the least disruptive placement, which again results in the child being placed with his Maternal Grandparents. If I do not accept that argument, then I am to consider the best interests test, and under that test the CAS submits that the child should be placed with the Maternal Grandparents.
[5] The Mother agrees with the position of CAS in terms of placement and goes further to state that the father (“Father”) is using these proceedings to get custody of the child; something he was unable to do under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Mother also points to Father’s overholding of the child from March to June 2020 and his abusive electronic communications to her. She states that the past conduct of Father is a good indicator of the future, and this overholding, coupled with the statements he has made through text messages lead to the conclusion that he will cut off ties with the child and Mother and Maternal Grandparents.
[6] The Maternal Grandparents agree with the CAS and Mother. In addition, they seek that this matter be joined with the protection application they commenced, bearing court file number CAS 20-194 As there is no motion before me to join the proceedings and as the parties do not have instructions to consent, I cannot grant the relief requested to join the court actions.
[7] The Maternal Grandparents state that they have played a large role in the child’s life, noting that they provided before and after school care for the child each day given that Mother worked. They state that they have been compliant with court orders and have acted in a protective manner for the child. They further state that any reasonable person reading the decision of Hardman J. of April 2017 would have concerns about Father being a primary care parent. They continue to have concerns regarding Father’s lifestyle and believe that he continues to be engaged in a lifestyle that involves drugs. They point out that the child is doing well in their care. They also provided all parties and the court with the child’s report card which they state is an indicator of the child’s advancement.
[8] Ms. Leanne Way, counsel for the OCL, has recently been appointed to represent the child. She has only met with the child once. She supports the position of the CAS, the Mother, and the Maternal Grandparents. She indicates that the child is seven (almost eight) years of age and a “delight”, that he is very mature for his age and does not wish to experience any further upheaval given his established routine – he wishes to remain in the care of the Maternal Grandparents. She states that she is well aware of Father’s position that the child has advised him and CAS worker(s) that he wanted to live with Father. She indicates that she pushed the child regarding spending more time with Father and the child pushed back. The Father’s work schedule makes mornings too difficult for the child, as it means he has to wake up between 5:00 and 6:00 a.m. The child agreed to one further dinner time with Father, which would extend Father’s access to Thursdays at 7:00 p.m. instead of 9:00 a.m. Although the child loves his dad, he is happy, adjusted, has stability, and is doing well. He does not want any changes. He hopes that his Mother will get better so that he can return to her care. OCL indicated that the child is very independent and stated his views and preferences willingly, with no pressure.
[9] It is the Father’s position that the child was apprehended from Mother on December 18, 2020 (not December 21, 2020), and not Mother and the Maternal Grandparents. He further submits that as the Mother agrees that the child cannot be returned to her, the child should be placed in his care. He states that as a parent, he has elevated status in these proceedings and that furthermore, the best interests test is the only test that should be applied. He states that it is in the child’s best interests that he be placed in the care of his Father subject to a supervision order. Father states that there are no protection concerns as it pertains to him, and accordingly the child should be placed in his care. He admits to historical drug issues but advises that he has overcome those issues. He indicates that he would like the Maternal Grandparents to be the babysitter for the child in the mornings. Finally, he states that the child’s wishes, as expressed by the OCL, should be considered a neutral factor given that the OCL only met with the child once and that the child has expressed to him and to CAS workers that he wishes to be in his Father’s care.
Background Facts
[10] Mother is 28 years of age. Father is 33 years of age. The child is seven (almost eight) years of age.
[11] There is no dispute that the child has been living in the Maternal Grandparents’ home since August 29, 2020.
[12] Mother and Father lived together from approximately 2013 to February 2014. Since the separation, the child has resided primarily with Mother. Mother lived in the same home with the child from 2014 to August 2020.
[13] The parents were engaged in CLRA proceedings previously. These proceedings were resolved by way of a trial before P.A. Hardman J. The trial order is dated April 28, 2017. Mother was granted sole custody of the child.
[14] Following the trial, Father was granted alternate weekend access (Friday at 6:00 p.m. to Sunday at 6:00 p.m.) and one mid-week overnight visit each week.
[15] Mother states that Father was verbally and emotionally abusive towards her, both during the relationship and post-separation. Since the trial in 2017, Father continues to send abusive texts to Mother which are set out in her affidavit. She states that it got to the point where Father was texting or emailing Mother up to 20 times per day and Mother could not handle “all of the hate” so she gave her phone to her mother (the “Maternal Grandmother”) to screen and determine if there were texts in reference to the child that required a response.
[16] Mother describes how she suffered from drug addiction issues since high school and that she met Father because he was her drug dealer. Mother states that one of the main reasons that she wanted to separate from Father was that drugs were a constant presence in the home, and she wanted to stay clean.
[17] Mother relapsed in September and October 2019. She states she was suffering from undiagnosed anxiety and depression. Thereafter Mother reached out to “Here247” and attended a day program through House of Friendship. She started on the methadone program in June 2019. She remained on the program for two months. Here247 staff were required to report to CAS and CAS became involved. All seemed to be well until March 2, 2020.
[18] On March 2, 2020, Mother and child were found sleeping in Mother’s car in the parking lot of her apartment complex and first responders (EMS and Fire Department) were called. Mother and child were examined, and the child was brought to the hospital and held overnight as a precaution. Drug paraphernalia was found in the car and the mother was subsequently charged.
[19] On March 2, 2020, Mother (who had sole custody of the child) made a plan for the child to be discharged from the hospital into the Maternal Grandparents’ care.
[20] On March 3, 2020, the CAS worker spoke with Mother and confirmed the CAS would support the family plan for the child to remain with the Maternal Grandparents.
[21] On March 4, 2020, Father was made aware of the incident on March 2, 2020, and he informed the CAS worker that although he does not like the Maternal Grandparents, he is in agreement with the child remaining there and he would be seeking legal advice. Father disputes that he agreed with this plan.
[22] As a result of the plan arranged by the family, and because they were agreeable to work with the CAS voluntarily on an ongoing basis, the CAS did not intervene, and the child was discharged from the hospital into the Maternal Grandmother’s care. Mother agreed for her access to be supervised by the Maternal Grandparents.
[23] At no time did Mother or Father inform the CAS worker that they were not in agreement with the family plan regarding the child residing with the Maternal Grandparents. Mother states that she felt she had no choice but to agree to the plan. Father states he did not agree. The Maternal Grandparents state “everyone accepted and followed the kin service placement until March 15, 2020, on this date, [Father] overheld the child and failed to return him after his court ordered weekend access period.”
[24] On March 15, 2020, Father overheld the child from the Maternal Grandparents, with whom the child was to be residing pursuant to a family plan.
[25] Prior to March 15, 2020, Father was having access to the child every Wednesday (until Thursday morning) and on alternate weekends, in accordance with the April 28, 2017 Order.
[26] The Maternal Grandparents commenced their own child protection application, first returnable June 3, 2020, due to concerns with Father’s ability to care for the child. Despite multiple court appearances, there has been no substantive order made in that proceeding.
[27] On June 4, 2020, Father returned the child to Mother.
[28] The child resided with Mother from June 4, 2020 to August 29, 2020, when Mother and child moved in with the Maternal Grandparents.
[29] On December 18, 2020, Maternal Grandmother called Waterloo Regional Police Services as she discovered Mother using drugs in the bathroom of her family home. Maternal Grandmother reported that she observed Mother smoking something from a piece of foil. The child was in the home at the time. An argument ensued with some shoving as Maternal Grandfather took the drugs from Mother. This was confirmed by Officer Jackson.
[30] The CAS after-hours worker spoke to Maternal Grandmother and established a safety plan, whereby Mother would not be alone with the child. Maternal Grandmother agreed to call the after-hour’s number should Mother attempt to leave with the child.
[31] On December 21 2020, the CAS worker, Jessica Vanhevel, was informed by Maternal Grandmother that Mother was no longer in the home, as she was with her father, B. B., and that the child was with her and that the plan was for him to remain with her.
[32] On December 21, 2020, Jessica Vanhevel spoke with Mother who confirmed she was going to detox at Holmes House in Simcoe and that she planned to remain there for 72 hours. Mother agreed to a plan whereby she would reside with her father, B. B., following detox, until she could attend drug addiction treatment. She also agreed to a safety plan that she would not be alone with the child.
[33] On December 21, 2020, Father advised the CAS worker that he was not in agreement with a plan where the child would remain with the Maternal Grandparents and that his son should be with him. Father advised that he wanted to attend and pick his son up right away. Father asked if he would be within his rights as a parent to take his son from the Maternal Grandparents and keep him with him.
[34] As a result of the concerns regarding Mother’s drug use in the home and Father’s lack of consent to the family plan, the CAS initiated a child protection application. A court order was made on December 24, 2020 placing the child in the care of the maternal grandparents on a without prejudice basis. CAS’ decision to keep the child with the Maternal Grandparents was based on what would be least intrusive to the children’s routine, since he had already been residing there since August 29, 2020.
[35] Mother has acknowledged a relapse of drug issues in the past year and has entered into a number of programs.
[36] On December 21, 2020, Mother checked herself into an 11-day detox facility in Simcoe, Ontario (Holmes House). She completed the program on December 30, 2020.
[37] Following the 11-day detox at Holmes House, Mother stayed at Crisis Stabilization Beds in Simcoe for one week until a spot for treatment at Holmes House became available.
[38] Mother stayed at Holmes House for seven days for preventative care.
[39] Mother is currently at Holmes House in a 21-day treatment program. She entered the program on January 25, 2021. Once her treatment is complete, Mother intends to continue with post-treatment care. She is looking into housing in the Simcoe area, as well as employment opportunities.
[40] During her stay, Mother has been in constant contact with Maternal Grandmother and the child. On the weekend of January 29, 2021, with the agreement of the CAS, she attended her parents’ home for a weekend visit with the child.
[41] The Maternal Grandparents have raised a number of issues that are not child protection concerns. These include that: (a) The Father has not paid costs ordered by the court after the trial; (b) The Father has not paid child support and is retroactively claiming child tax benefits; (c) The Father is not complying with financial disclosure requirements; (d) The Father has not been following COVID-19 social/physical distancing requirements; and (e) The Father overheld the child from March to June 2020.
[42] The Maternal Grandparents have made the following allegations regarding Father’s lifestyle: (a) they believe Father sells drugs in order to earn enough money to afford his townhouse; (b) the fact that Father has recently had his window beside his front door smashed is suggestive that the father is involved in dealing drugs; and (c) the “historical and ongoing high level of traffic coming and going from his residence suggests nefarious activity I have seen it with my own eyes”.
[43] The Maternal Grandparents have not provided any additional information about Father’s current use of drugs and/or the impact this has on the child.
[44] Mother also complains about Father not paying child support. Mother is very concerned that if the child is placed with Father, he will alienate the child from her.
[45] On March 4, 2020, Father informed the CAS worker that he sold drugs and used cocaine in the past, when he was involved with Mother. Father denied any current drug use or using while in a caregiving role.
[46] The CAS worker has not received any additional reports from the community regarding Father’s alleged drug use.
[47] The CAS worker has had phone calls, virtual meetings and/or in home meetings with Father on March 19, 2020; March 25, 2020; April 8, 2020; April 24, 2020; April 29, 2020; May 19, 2020; May 21, 2020; June 11, 2020; July 15, 2020; August 28, 2020; September 22, 2020; October 10, 2020; and on December 10, 2020. No concerns flowing from these interactions have been noted.
[48] The CAS worker attended Father’s home on March 4, 2020 and did not note any concerns regarding the state of the home. The CAS worker noted that a window had been broken – Father explained he had broken the window when he had locked himself out. Maternal Grandparents believe this window has been broken for some time.
[49] The CAS worker has not observed any concerns regarding Father’s mental health during interactions with him.
[50] The CAS does not have protection concerns with Father. However, Father has been cautioned by the CAS worker to not send inappropriate/provoking messages to Mother.
[51] It is uncontested that Mother is struggling with addiction issues and has not been in a position to provide care for the child in recent months.
[52] Mother is actively engaged in addressing her drug addiction issues at this time.
[53] It is uncontested that Maternal Grandmother has been a daily childcare provider for the child since at least the child started school, approximately three to four years ago. Mother supports the child remaining in the care of the Maternal Grandparents, while she addresses her addiction issues (which form the child protection concerns).
[54] Mother is in daily contact with the child when he is with her parents and knows her parents are taking excellent care of him.
[55] Father states that if the court makes the finding that the child was in the Maternal Grandparents’ care when the child was apprehended, then the court must consider the implication this has about his safety in their care. He states that if the child was being cared for by the Maternal Grandparents when he was exposed to his Mother’s drug use and adult conflict, it would suggest that he would be better protected by Father. Father’s concerns have to be viewed in the context that he still wishes to have the Maternal Grandparents babysit the child.
[56] The Maternal Grandparents repeat the concerns raised in the trial decision about Father and assert that while regular access to Father is beneficial for the child, he is not an appropriate person to have primary care of the child. Further, the child’s “normal” is to be extensively cared for by the Maternal Grandparents. This is the least disruptive plan and the plan that serves the best interests of the child.
[57] The Maternal Grandparents argue that the findings made by the Court in 2010 relating to Father are concerning and include the following: (a) Paragraph 3: Father acknowledged ongoing drug use. (b) Paragraph 16: “It appears that since separation [Father] has been abusive, harassing and threatening towards [Mother].” (c) Paragraph 28: “[Mother] has filed a number of text messages from [Father] showing how vulgar and controlling he can be in their interactions…[Father] has acknowledged that he tends to react in this way to [Mother]”. (d) Paragraph 31: There were a number of examples provided wherein [Father] acted unreasonably in regard to his child and parenting issues. (e) Paragraphs 37: [Father] has spoken to the child about the litigation. (f) Paragraph 38: “One very concerning behaviour by [Father] is his threat to tell the child that his mother is a prostitute junkie and to make the child hate her.” (g) Paragraph 39: “[Father] does not believe in anyone’s right to know his business. He does not believe in banks and hence does not have an account. He did not think it was the court’s business where he kept his money or how much he had. His band is called ATG, standing for “against the government”. He acknowledged that he is somewhat paranoid and certainly suffering from an inability to emotionally regulate.” (h) Paragraph 41: “He told the court he started his involvement with drugs by grinding up and snorting his prescription ritalin at the age of 11. Since then he became involved with a number of drugs. He acknowledged that he uses marijuana to calm him and dabbles “here and there” with cocaine when he is frustrated.” (i) Paragraph 45: “Despite only having a grade nine education, [Father] has ambitious plans to become a well known song writer and music producer…He has supported himself by selling drugs in a small way, obtaining song commissions, driving people around in his car, selling band T-shirts, playing pro-line, and being paid under the table for working part-time for a mover. He told the court that he only needed $64/day to live and manages to maintain a townhouse all on his own. While he generally is able to make ends meet, he acknowledged that he was late with his rent because of the money he was spending on the child. (j) Paragraph 50: “Despite his view of the government, [Father] did file his income tax by making up an amount to put on his return…Having filed, the respondent then complained that [Mother] was claiming the full child tax credit”. (k) Paragraph 54: “[Father] acknowledged that he had mood swings but that he was not seeing a doctor. He said that he felt overwhelmed and had anxiety attacks.” (l) Paragraph 55: “[Father] appeared to recognize that he had mental health issues that might benefit from a prescription for his anxiety”. (m) Paragraph 56: “[Father] also has some serious physical ailments that he needs to address. He has had pains in his legs and other parts of his body. He also had a lump in his neck. He is very afraid for his own health which compounds his anxieties.” (n) Para. 71: “[Father] appears unable to focus on the child’s best interests.”
[58] At para. 76 of the trial decision, P.A. Hardman J. said the following: The respondent father is important to this child. Hopefully, the respondent will stabilize once these proceedings are complete and perhaps deal with his own physical and mental health issues. He must try to curb those anxieties that are preventing him from regulating his emotions and being more child focused in his interactions with the child. The respondent needs to understand that he must not do or say anything to the child that puts the applicant down or causes the child to disrespect the applicant or become anxious himself.
[59] The Maternal Grandparents state that from their experience and observations, the behaviour and conduct of Father have not improved since the time of trial, but rather have become more concerning. They are concerned that because Father uses voice to text and voice to email applications, when he has the child in his care, the child is very likely to overhear Father communicating his abusive messages to Mother.
[60] The Maternal Grandparents respectfully submit that any reasonable person reading the trial decision would have serious concerns about the child being in the Father’s primary care. These concerns cannot be investigated or explored adequately by telephone calls during a pandemic.
[61] Father continued to send inappropriate texts and emails to Mother following the CLRA trial. Mother gave Maternal Grandmother the ability to access her email so Maternal Grandmother could shield her from the Respondent’s abuse.
[62] The Maternal Grandparents do not believe that Father will take the child’s schooling seriously.
[63] The Maternal Grandparents believe, based on the disclosures of the child and how he responds to questions, that the child has been trained and coached by his Father not to disclose information about his Father to third parties, including the CAS.
The Law
Temporary Care and Custody Test:
[64] This is a hearing under s. 94 of the CYFSA to determine the placement of the child during the period of adjournment, or more commonly known as a temporary care hearing.
[65] The legal test for the court to apply on this motion is set out in ss. 94 (2), (4) and (5) of the CYFSA that read as follows:
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.
Criteria (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).
Placement with relative, etc. (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.
Terms and conditions in order: (6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose, (a) reasonable terms and conditions relating to the child’s care and supervision; (b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and (c) reasonable terms and conditions on the Society that will supervise the placement but shall not require the society to provide financial assistance or to purchase any goods or services.
Access (8) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.
[66] Under the legislation, there is a two part-test that the society must meet on a temporary care hearing: (a) At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. (b) Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. Simply stated, this is a two-part test that the society has to meet. See Children’s Aid Society of Ottawa v. L. (M.), 2017 ONSC 2284, at para. 39. See also C.A.S. of Ottawa-Carleton v. T., at paras. 6-10.
Least disruptive placement
[67] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child: s. 1(2) of the CYFSA ); Children's Aid Society of Hamilton v. B.D./F.T.M., 2012 ONSC 2448, 20 R.F.L. (7th) 301, at para. 29.
[68] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk: Catholic Children’s Aid Society of Toronto v. J.O.1, 2012 ONCJ 269, 20 R.F.L. (7th) 471.
Best interest of the child
[69] Section 74(3) of the CYFSA sets out considerations for the court in determining the best interests of a child. Sections 74(3)(a) and (b) of the CYFSA are mandatory considerations the Court must consider the child’s views and preferences, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.
Evidence
[70] Section 94(10) of the CYFSA permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence : Jewish Child and Family Services of Toronto v. A.K., 2014 ONCJ 227, at para. 18.
[71] While this is a relaxed evidentiary standard, the court must ensure that cases are dealt with justly. In Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 661, 8 R.F.L. (8th) 233, at para. 17, Sherr J. detailed that principle as follows: (a) Rule 2(2) of the Family Law Rules requires that dealing with a case justly includes ensuring that the procedure is fair to all parties. (b) It is admissible evidence in writing that can be filed, not just any evidence. (c) Rule 14(18) of the Family Law Rules requires that the affidavit should contain as much personal knowledge as possible. If from a third party, the source must be identified. (d) Past parenting evidence must be relevant. Issues of relevance, probative value and admissibility are still alive. (e) The affidavit material should set out at the beginning of the affidavit, the reasons for the intervention, why less disruptive steps were not taken, and what has been learned in the investigation to date. The parent's entire life should not be on parade. (f) There should be a respect for the rules of evidence. Supposition, conjecture, speculation, innuendo, gossip, unqualified opinion, where qualified opinion is required have no place in an affidavit. (g) Exhibits should not be used as a substitute for proper evidence. (h) The affidavits should be proportionate. Factual inferences can be drawn from the evidence only if the facts alleged to support the inference are established by the evidence.
[72] Courts have held that consistent hearsay evidence from a number of professionals obliged to keep accurate records may be considered “credible and trustworthy” and be given more weight by the court, particularly where the evidence is recorded by a professional with an obligation to keep accurate, contemporaneous notes. This obligation can mitigate the inherent risks hearsay evidence: Children’s Aid Society of Hamilton v. A.H. and T.L., 2019 ONSC 1780, at para. 47.
Charge of the Child
[73] Section 94(2)(a) of the CYFSA gives priority in any temporary placement analysis to the person or persons who had charge of the child prior to society intervention under Part V of the CYFSA.
[74] The CYFSA does not define the term “charge”. The jurisprudence has however provided guidance in this regard. Certain points arise clearly from those cases: (a) First, charge has the connotation of authority and responsibility for a child. Charge of a child suggests some established relationship, not something transparent or temporary. There must be evidence of active care and responsibility for the child. Mere possession is not sufficient to establish charge. (b) It is also possible for more than one person to have charge of a child. Charge is not synonymous with custody. In Children's Aid Society of Ottawa v. H.C. and C.C., however, Blishen, J. found that charge was linked to the term care and custody within the meaning of s. 51 of the then applicable legislation, being the Child and Family Services Act. The court went on to say that questioning who has charge of a child is akin to questioning who had care and custody. See also Children’s Aid Society of Brant v. L.B.-A., 2020 ONCJ 562.
[75] In the Children’s Aid Society of Brant v. A.A, 2020 ONCJ 535, the court discussed the placement options based on the priority of claims that arose as a result of defining who had “charge” of the child immediately prior to society intervention. The court held, at paras. 27-32:
[27] The test under s. 94(2) is a laddered approach, starting with the child remaining in the care of the person(s) who had charge of the child prior to intervention under Part V of the Act. Having determined that the Respondent grandparents had charge of the child prior to intervention, the analysis must begin with a consideration of the evidence of what protection concerns exist regarding the grandparents’ care of the child. Unless there is sufficient evidence to convince me that the child cannot be adequately protected from harm or risk of harm in the care of the Respondent grandparents, I must make an order that the child remain in their care.
[28] There are no protection concerns regarding the care the Respondent grandparents are providing for the subject child. The protection concerns set out in the evidence relate only to the Respondent mother. Although the Respondent father’s position is that the Respondent grandparents are attempting to alienate the child from him and interfering with his relationship with the child, none of those concerns are protection concerns falling within the enumerated grounds under s. 74(2) of the CYFSA.
[29] Although there are no protection concerns related to the care the Respondent father provides for the child, the legislation is clear that a child cannot be removed from the care of the person who had charge of the child prior to intervention unless a court is satisfied that there are sufficient protection concerns to do so. In this case there are none.
[30] The test is not a best interest test in this case due to the intervening event of the KSA placing the child in the care of the Respondent grandparents. The legislation is mandatory rather than permissive as to what order shall be made during the period of adjournment. The legislation does not permit me to engage in an analysis as to what placement would be in the child’s best interests at this stage of the proceedings. I am therefore precluded from considering the child’s stated views and preferences to live with his father rather than his grandparents in determining his placement under the s. 94(2) analysis.
[31] Although the Respondent father may be successful at a trial in persuading the court that placement of the child with him is the disposition that is in the child’s best interests, at this stage of the proceedings the legislative presumption that the child must remain in the care of the person(s) who had charge of him prior to intervention, must prevail. As there is no evidence before me that there are any protection concerns related to the Respondent grandparents, the child must remain in their temporary care and custody until the final disposition of this matter.
[76] I find that prior to the apprehension of December 21, 2020, the Maternal Grandparents and Mother had charge of the child. Father did not have charge of the child – he was an access parent. I might have decided differently if Father had primary care or if he was a joint custodial parent. Maternal Grandparents and Mother were responsible for the child and actively involved in his care. Although there was no formal kinship agreement, as in the Brant decision, a safety plan had been made. Mother, who had sole custody of the child, agreed to this plan and as such the informal agreement crystalized. There are protection concerns with respect to Mother and she admits the child cannot currently be returned to her care.
[77] There are no protection concerns with respect to Maternal Grandparents. The protection concerns relate to Mother. Although Father posits that the Maternal Grandparents did not adequately protect the child as Mother was doing drugs in their home, I do not agree. They acted appropriately and called police and CAS. They initiated their own child protection application. Accordingly, I must make the order that the child remain with the Maternal Grandparents.
[78] Even if Mother and the Maternal Grandparents did not have charge of the child immediately before the apprehension, then I am required under Part I of the CYFSA to choose the least disruptive alternative.
[79] In this case, the child has lived with the Maternal Grandparents since August 2020. Prior to that, they provided almost daily care for the child during the week. All of his needs are being met by the Maternal Grandparents. He is settled in a routine which includes the times he spends with Father. I find that the least disruptive alternative for this child is that he remain with the Maternal Grandparents.
[80] Even if Father does not accept that this is the least intrusive option then I am required to consider the best interests of the child.
[81] All parties except Father believe it is in the child’s best interest to remain in the care of the Maternal Grandparents. This would allow continuity and consistency. The child is thriving in their care. Furthermore, the Maternal Grandparents facilitate the child having regular contact with both his parents.
[82] When applying the best interests test to this case, I find as follows: (i) The child’s views and preferences as expressed through his lawyer is that he remain in the care of the Maternal Grandparents. His statement to Father that he remain in his care is not afforded the same weight given that it is a hearsay statement made by an interested party in these proceedings. The child has shown maturity in reaching the conclusion and the reasons he provides for wishing to remain with the Maternal Grandparents; (ii) I have not been provided with any evidence that the child has a particular heritage or cultural identity; (iii) It is clear that the child’s needs are being met and will continue to be met by the Maternal Grandparents; (iv) The Maternal Grandparents, who are fully compliant with CAS, will continue to facilitate a relationship between the child and both parents. I am concerned that Father will not foster a relationship between the child and Mother and will use the Maternal Grandparents as babysitters only; (v) The child’s desire for consistency and stability are demonstrative of his maturity; (vi) The child has emotional ties to all of the respondents. He is settled and doing well and on an interim basis his life should not be further disrupted; and (vii) The child has been in the care of the Maternal Grandparents jointly with Mother since August 2020 and solely in their care since December 18, 2020.
Conclusion and Order
[83] For the reasons set out above, the order sought by CAS with the expanded access agreed to by CAS, Mother, OCL and Maternal Grandparents is granted, namely:
A temporary order placing D. B.-R., born [birth date redacted], in the care and custody of C. and M. F. subject to the supervision of the Children’s Aid Society of the Regional Municipality of Waterloo on terms and conditions as set out in the Society’s Notice of Motion dated December 23, 2020.
On a temporary basis, access to D. B.-R. by M. R. shall occur every Wednesday after school (or 5 p.m. on non-school days) to Thursday at 7:00 p.m. and alternating weekends from Friday to Sunday at 6 p.m. Any additional access is to be at the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and supervised as deemed necessary by The Children's Aid Society of the Regional Municipality of Waterloo.
On a temporary basis, there shall be a right of access to D. B.-R. by Mother at the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and supervised as deemed necessary by the Children’s Aid Society of the Regional Municipality of Waterloo.
D. Piccoli J. Date: March 8, 2021