WARNING

This case is governed by the Child, Youth and Family Services Act, 2017 which provides:

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.

CAS Niagara v. M.L., CITATION: 2021 ONSC 4062

Court File and Parties

COURT FILE NO.: C26994/19

DATE: 20210603

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: The Children’s Aid Society of the Region of Niagara

AND: M.L. and J.D.R., respondents

AND: B.R. and L.R., added parties

BEFORE: Mr Justice Ramsay

COUNSEL: Maggie Scull for the Society; William A. Melnychuk for M.L., James A. Brown for J.D.R., B.R. and L.R.

HEARD: June 3, 2021 at Welland by videoconference

ENDORSEMENT

[1] The child is in the care of the added parties, his paternal grandparents, under the final order of Maddalena J. dated January 7, 2020. Maddalena J. found the child to be in need of protection and ordered under s.101 of the Child, Youth and Family Services Act, 2017, that he be placed into the care and custody of his paternal grandparents under supervision of the Society for six months with access to the mother and supervised access to the father, as well as any access that might be agreed by the parties.

[2] The Society brought a status review application under s.113 of the Act on July 2, 2020. That application is still outstanding. The Society now moves for an interim order under s.113(8) of the Act, which provides:

(8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.

The test

[3] That subsection puts the onus on the party that seeks a change, in this case the Society, to show that the child’s best interests require it. The purpose of the subsection is to provide stability to children who are in the Society’s care or under its supervision. At this point in the proceedings, the child will have already been found to be in need of protection and the considerations in subsections 101 (3), (4) and (5) will have been applied. The first consideration at this point is stability. It is, of course, subject to the child’s best interest.

[4] The Ontario Court has considered the interpretation of s.113(8) of the Act a number of times, often focusing on whether a material change in circumstances must be shown. The jurisprudence is reviewed by Sager J. in Catholic Children's Aid Society of Toronto v. W.P.P., 2020 ONCJ 388. I do not think that the term “material change in circumstance” adds anything to the analysis. The question is whether a temporary change to the outstanding order is required. The legislature’s choice of the word “required” has meaning. It emphasizes stability.

[5] I adopt these observations of Sager J. at paragraph 34 of W.P.P.:

In order to determine whether there should be a temporary change to a final care and custody order on a Status Review Application, the court must consider all of the relevant and reliable evidence on the motion within the context of the case as a whole, and decide if the evidence demonstrates that a change in the child's life has taken place that impacts their best interests requiring a temporary change to their placement pending final adjudication of the Status Review Application.

Application

[6] The child first came to the attention of the Society in February 2019. The parents were in conflict and the child was not always properly fed. The child was taken to a place of safety on May 9, 2019 in Hamilton. On May 28, 2019 the child was placed with the maternal grandparents on terms related to conflict between the parents, safe sleep practices, the mother’s mental health, drugs, alcohol and child safety. The maternal grandmother failed to notify the Society of serious protection concerns that arose, so the child was removed from her. On June 25, 2019 the child was placed into the care of the Society pending adjournment. On July 25, 2019 the placement with the Society was maintained at the temporary care and custody hearing.

[7] On November 25, 2019 the child was placed temporarily with the paternal grandparents on consent. On January 7, 2020 Maddalena J. made the final order in much the same terms, placing the child with the paternal grandparents for a period of six months.

[8] The Society brought the present application for status review on July 2, 2020. Settlement conferences were held on August 25, 2020 and October 28, 2020. The paternal grandparents were added as parties at the October 28 appearance. The endorsements on the record show that the parties were working toward reunification of the mother with the child, but by February 9, 2021 she was still not ready. At the third settlement conference, on April 14, 2021, a timetable was set for the hearing of the present motion for an order for temporary care.

[9] The Society’s motion is largely based on the time that has elapsed since the status review began, the time since the child was removed from the mother and the mother’s completion of programmes and successful exercise of increased access.

[10] The delay since June 2020 is the responsibility of the Society. This status review should have been tried in November 2020. Instead of pursuing the review that it instituted, the Society kept putting it off while the mother got herself ready to be a parent. The fact that the pandemic got in the way of programmes and physical access is beside the point. The point is the interest of the child, not the challenges faced by the mother.

[11] The mother is still not ready. The Society still takes the position that she needs supervision. There is credible evidence from the added parties that the mother is not yet ready even for that. The grandparents want to pursue reunification more slowly. They say, among other things, that the mother has a violent temper and that she returned the child to their care with bruises in December 2020 and April 2021.

[12] In May 2021 the paternal grandparents and the mother attended mediation. After six sessions with professional mediators, the mother and the grandparents agreed to a comprehensive, written one-year plan for joint parenting, increased parenting time for the mother in three stages, to be followed by further mediation in June 2022 with a view to a permanent arrangement. It baffles me that the Society would throw away all this work and insist on replacing it immediately, before a trial, with supervised placement with the mother and access to the grandparents.

[13] The child is fine where he is. He is safe and he has plenty of time to bond with his mother. His best interests do not require a change. Whether he will be returned to his mother needs to be decided at trial.

[14] The motion is dismissed. No order for costs will be made in favour of or against the mother or father. If the grandparents seek costs from the Society, they may do so in writing within 7 days. In that event, the Society may respond in writing in 7 further days.

J.A. Ramsay J.

Date: 2021-06-03