COURT FILE NO.: FC-14-FO-599-0006

DATE: 2021/08/23

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:

M.M., Respondent Mother

AND:

J.B., Respondent Father

BEFORE: Madam Justice J. Breithaupt Smith

COUNSEL: Mr. Ben McIvor for the Applicant Society Ms. Jean Ledrew Metcalfe for the Respondent Mother Mr. Patrick Brohman for the Respondent Father Ms. Margaret Voll for the Child, D.B.

HEARD: August 13, 2021

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] There are two motions before the Court: (1) the Society’s Change of Placement Motion seeking to move the child, D.B. (age 10), from the residence of his Father and Step-Grandfather into his Mother’s primary care; and (2) Father’s Motion seeking leave to change the child’s primary residence to Stoney Point, Ontario.

[3] 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 and reviewed for the purpose of these motions:

a. Status Review Application returnable April 27, 2021;

b. Affidavit of Christian Appleton dated March 10, 2021;

c. Society’s Plan of Care dated March 10, 2021;

d. Answer and Plan of Care of Respondent Mother dated April 12, 2021;

e. Answer and Plan of Care of Respondent Father dated May 7, 2021;

f. Respondent Father’s Notice of Motion returnable August 10, 2021;

g. Affidavit of Respondent Father (J.B.) dated July 22, 2021;

h. Affidavit of Step-Grandfather (R.H.) dated July 22, 2021;

i. Society’s Notice of Motion returnable August 10, 2021;

j. Affidavit of Christian Appleton dated July 30, 2021;

k. Affidavit of Respondent Mother dated August 4, 2021;

l. Endorsement of Madam Justice L. Madsen dated July 8, 2021 regarding procedure in the event of a mobility motion;

m. Previous Endorsements made between October 22, 2020 and April 27, 2021;

n. leading case (conceded by all parties) of CAS of Toronto v. G.M.;[^1]

o. Draft Orders (in Word format);

p. Confirmations; and

q. Affidavits of Service.

Scope of Relief Sought

[4] The Society’s Motion seeks a Temporary Order placing D.B. in his Mother’s primary care in the Town of Arthur, Ontario, located in Wellington County, subject to terms of supervision and with provisions regarding Father’s parenting time. Respondent Father’s Motion seeks leave to move his – and thus the child’s – primary residence outside of Waterloo Region to Stoney Point, Ontario, located in Essex County.

[5] The relevant sections of the Child, Youth and Family Services Act, 2017 (the “CYFSA”), are set out as follows, with the exception of section 74(3) being the “best interests” section, which is reproduced as Schedule “A” hereto:

114 Where an application for review of a child’s status is made under section 113, the court may, in the child’s best interests,

(a) vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;

113 (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.

[6] Having the ability to vary the terms of the most recent Final Order pursuant to section 114(a), section 113(8) confirms that the default position of residency with the caregiver named in the Final Order is to be changed only where the child’s best interests require a change. The “best interests” factors are listed in section 74(3). As D.B. is not identified as an Indigenous child, the augmented best interests test that I set out in CAS v. K.C. and Constance Lake First Nation[^2] is not applicable to this case.

[7] For D.B., Ms. Voll notes that time is of the essence in this matter as her client is concerned about his enrolment in school for September 2021.

Positions and Evidence

[8] As this is a status review, the focus is primarily on facts which post-date the existing Final Order of Madam Justice J. Walters dated November 3, 2020. The Final Order was obtained on consent of the parties and specifies that the child will reside with Father and Step-Grandfather through the week and with Mother every weekend.

[9] Mr. Appleton, the family’s ongoing service worker since March 10, 2017, attests that Father “continues to live at the home of his stepfather, [name omitted]. [Step-Grandfather] remains a strong support for [Father] and [child].” He further notes, some of which information is hearsay but is admitted as either admissions against interest (regarding statements made by the caregivers) or on the basis that it is both necessary and reliable (regarding statements attributed to the child):

a. historically, both parents had issues with drug and alcohol addiction;

b. Father was heavily intoxicated on December 2, 2020 while at Step-Grandfather’s home where the child was sleeping and sustained injuries (which Father says were inflicted upon him by muggers outside the front of the residence) such that he was taken to hospital by ambulance after police were called;

c. Father usually drinks at the beginning of the month and sometimes becomes intentionally loud, waking Step-Grandfather and the child, but is not aggressive towards them;

d. Step-Grandfather is the child’s caregiver when Father drinks;

e. although he had historically participated in programming, Father has been resistant to counselling or medical help regarding his alcohol use, and has refused to attend any other programs;

f. D.B.’s attendance at school during the Fall of 2020 was excellent and he was doing well in school overall;

g. Mother has excelled in programming offered through Father’s Heart Healing Ministry in Arthur and has applied the strategies learned;

h. Mother has outstanding criminal charges regarding human trafficking which were scheduled for a preliminary inquiry on August 19 – 21, 2021;[^3]

i. there have been incidents of parental conflict which seem to be instigated by Father in the context of discussing the relationship between Mother and Father;

j. the Society has no concerns that any of the caregivers are exposing the child to third parties who may present a risk;

k. since the conclusion of the 2020-2021 school year, D.B. has been in the care of each parent on an alternating weekly basis during the summer school vacation break;

l. in June 2021, Father and Step-Grandfather advised Mr. Appleton that they were intending to move to Essex County, with Step-Grandfather having sold his home with a closing date of August 13 or 16, 2021;

m. on June 30, 2021, Father was drinking and got into conflict with Step-Grandfather, some of which was witnessed by D.B., with the result that D.B. was delivered by Step-Grandfather into Mother’s care late at night and upset by the event;

n. on July 26, 2021, Father advised Mr. Appleton that he no longer wanted to reside with Step-Grandfather and was looking for his own apartment in Waterloo Region, and expressed “that he had been thinking it may be better if [D.B.] lived with [Mother] and he had access every weekend or every other weekend”;

o. that same day, Mr. Appleton advised Father that the Society could not support placement of D.B. with him if he was without Step-Grandfather’s support;

p. that same day, Father confirmed that he could only live in Step-Grandfather’s home on the condition that he abstain from alcohol completely;

q. on July 28, 2021, Father advised Mr. Appleton that D.B. had spent two days with him after his week with Mother and that D.B. had returned to Mother’s care because “he was bored and had been asking to go to his mother’s home;”

r. during that same conversation, Father again told Mr. Appleton that he would agree to D.B. living with Mother and spending weekends or alternate weekends in his care, and further said that he would move to Essex County with Step-Grandfather if he was unable to find an apartment in Waterloo Region in short order;

s. neither of Father nor Mother drives;

t. Father has “shared with [Mr. Appleton] on numerous occasions that he does not get along with [Step-Grandfather]” and Step-Grandfather has “also spoken to [Mr. Appleton] on several occasions about [Father] being moody and quick to anger and difficult to live with”;

u. From September 2019 to early May 2020, Father in fact resided apart from D.B. and Step-Grandfather “in part because of the ongoing conflict” between them;

v. the Society is concerned about Father’s alcohol abuse and overall mental health, and notes that Father “has not yet demonstrated that he is able to provide a stable and appropriate environment to raise a child independently of the support of [Step-Grandfather]”;

w. there is a risk that Mother’s criminal charges could result in a two-year penitentiary sentence if she is convicted, and that a trial could be a couple of years away;

x. Mother has shown “remarkable improvement,” has followed through with programming and the recommendations of service providers, she has been co-operative with the Society and has successfully parented D.B. during her visits;

y. the Society has concluded that Mother is the stronger and more consistent parent and advocates for D.B. to be placed in her primary care, having regular visits with Father and Step-Grandfather;

z. the Society would support alternate weekend visits between D.B. and Father provided that Father has appropriate housing in Waterloo Region, but is unable to theorize about visits otherwise, as it is unclear whether Father intends to move to Essex County or not.

[10] For the Society, Mr. McIvor points out that Mother’s daughter, born in May of 2019, is in her care and that Mother has the support of the sister agency in Wellington County. This support ensures continued child protection involvement even if Mother faced a period of incarceration when her criminal charges are eventually addressed. He argues that the instability arising from conflict between Father and Step-Grandfather could have a seriously negative impact upon D.B.’s connection with Mother, as Step-Grandfather is the only family member who can provide transportation for D.B. to and from visits with Mother. Mr. McIvor notes that the drive would be much longer between Stoney Point and Arthur than it has been to date. If D.B.’s move to Stoney Point were to be permitted, Step-Grandfather’s goodwill would be essential to the maintenance of D.B.’s bond with his Mother and baby sister. Mr. McIvor succinctly summarizes the situation as one where Step-Grandfather keeps the placement with Father together and notes that there are no longer any protection concerns in Mother’s home, with Mother having shown herself to be D.B.’s most capable caregiver. If D.B. is placed with Mother and Father resides in Waterloo Region, the Society would support alternate weekends between D.B. and Father provided that Father has stable housing. If D.B. is placed with Mother and Father moves to Essex County, the situation is less predictable, but the Society would support a minimum of one weekend per month in Step-Grandfather’s home with priority given to long weekends.

[11] In support of his motion seeking permission to move D.B. to Essex County, Father attests that:

a. Step-Grandfather’s house has sold and the intended moving date is August 16, 2021;

b. Step-Grandfather is “the only stable male influence” that he has had in his life;

c. D.B. calls Step-Grandfather “Poppa,” they are closely bonded and he “has also been the only stable influence in [D.B.]’s life;”

d. D.B. enjoyed playing with his cousins in Stoney Point on or about July 15, 2021;

e. there are two school options for D.B. in Stoney Point, and Father would allow D.B. to choose between them;

f. there are many minimum wage or agricultural jobs that Father could take in the Stoney Point area;

g. Step-Grandfather has made Father’s move conditional on no alcohol consumption, and that Father is “prepared to abide by that condition as I feel the move to be a fresh start in my life and I want to get back on track after having been stuck in a rut for the last few years;”

h. Father did not consume alcohol for three weeks (i.e. the month of July up to July 22, 2021);

i. Father intends to apply for his learner’s driving permit and, in the meantime, advises that Step-Grandfather would provide transportation for D.B.;

j. Father envisions Mother’s parenting time as taking place on holidays (e.g. Thanksgiving, Easter, March Break) and for one month each summer; and

k. the round trip between Stoney Point and Arthur takes approximately 8 hours, being 4 hours each way.

[12] Step-Grandfather supports Father’s motion and attests that:

a. he has been an integral part of D.B.’s life, and during some periods D.B.’s only caregiver, since at least 2014;

b. in early 2021, he developed a concern that he may have cancer, and the diagnostic results have not yet been provided to him, although he otherwise feels himself to be in excellent health;

c. the concern was “a wake-up call” which triggered his decision to move back to Stoney Point where he grew up;

d. his Waterloo Region home sold in a matter of days and he purchased a property on the shores of Lake St. Clair scheduled to close on August 16, 2021;

e. each of he, Father and D.B. would have their own bedrooms in the Stoney Point home, which backs onto a farmer’s field and is close to his extended family including thirteen children close to D.B.’s age;

f. he will not permit Father to reside with him unless Father stops drinking;

g. he has agreed that he will “initially be responsible for all of the transportation” to and from D.B.’s visits with Mother; and

h. as D.B. is “the type of child who likes to play far too many video games,” the move will encourage a more active, outdoor lifestyle.

[13] For Father, Mr. Brohman confirms that the onus is on his client to demonstrate that a move to Essex County would be in D.B.’s best interests. He notes that Father had no say in Step-Grandfather’s decision to sell his home and move away, but points out that Step-Grandfather has effectively been the only stable influence throughout D.B.’s life. Step-Grandfather’s role in holding the placement with Father together has allowed Mother the space and time to make the gains that she has achieved. He frames the Court’s task as balancing the importance of the caregiving relationship with paternal family against Mother’s improvements viewed in the context of a possibility of her future incarceration.

[14] Note that neither Father nor Step-Grandfather mention the then-recent events of June 30, 2021, when Step-Grandfather delivered the child to Mother’s home late in the evening.

[15] In support of the Society’s motion and in opposition to Father’s motion, Mother attests that:

a. she lives in a three-bedroom home which includes a well-appointed room for D.B.;

b. her daughter, D.B.’s sister, is approximately 15 months old and has been in her care since birth with the support of the Family and Children’s Services of Guelph and Wellington County;

c. she has completed two years of programming to address personal and addiction issues, graduating on April 11, 2021, and continues to participate in out-patient supports;

d. D.B. can attend Arthur Public School within walking distance from her home and be cared for by her family doctor, Dr. Rose-Janes;

e. D.B. will continue to see her dentist and she has registered him for the Healthy Smiles program;

f. she is the parent who provided D.B. with a laptop, set up his accounts and passwords, and connected with his teachers during remote learning periods;

g. she is the parent who took D.B. to the optometrist when the child complained that he could not read the blackboard;

h. she arranged for D.B. to attend camp during the week of August 16 – 20 upon learning from Mr. Appleton that Father and Step-Grandfather would not do so;

i. she intends to enrol D.B. in counselling;

j. she has registered D.B. for a local program which provided him with a swim pass for the community pool this summer and will provide access to extracurricular sports and classes in future;

k. she has friends and supports in the community, including a close friend who provides her with childcare and transportation as needed;

l. she has already planned for her daughter’s care in the event that she should face incarceration as the result of the criminal charges against her, and would be able to integrate D.B. into that plan;

m. she has continued to tell the Society about her concerns regarding D.B.’s care in paternal family’s home, including the lack of healthy food (D.B. will not eat meat or vegetables, preferring only processed foods), lack of exercise and suitable activities to engage the child, and ill-fitting clothing;

n. D.B. engaged in sexual activity while in Father’s care, showing Father’s inability to properly supervise him;

o. on each of July 10, 2021 and July 17, 2021, D.B. was not home for pick up at the scheduled exchange time;

p. on July 26, 2021, she provided $100 worth of food to Father when returning D.B. to his care as there was no food in Father’s home, and then learned from Father that he and Step-Grandfather had purchased marijuana instead of food;

q. two days later, on July 28, 2021, D.B. was returned to her care by Father;

r. communication with Father is strained because of Father’s abusive and toxic text messages, which are rife with insults (a selection being attached to Mother’s Affidavit); and

s. she is very worried about the impact that a move to Stoney Point would have not only upon her bond with D.B. but also upon her ability to fill in the parenting gaps left by Father and Step-Grandfather.

[16] Ms. Ledrew Metcalfe on Mother’s behalf points out that Father did not attend the Settlement Conference and was absent both at the August 12, 2021 speak-to date and during the argument of the motions on August 13, 2021. As Father is not working and no reason for his absence was provided, she suggests this shows the Court that he is not interested. In his Answer and Plan of Care, Father resisted Mother’s position that D.B. be placed with her on the basis of D.B.’s connection with Waterloo Region, which is apparently no longer of concern to him or to Step-Grandfather. She contrasts Mother’s stability against Father’s continued drinking and mental health issues and takes the position that Step-Grandfather’s care of the child is only minimally acceptable. She queries why Step-Grandfather appears to blame D.B. for playing “too many video games” when he is a caregiver who could limit such exposure and, instead, engage the child in outdoor activities here in Waterloo Region. Compellingly, Ms. Ledrew Metcalfe argues that Mother is the default caregiver as shown by: (1) parenting planning such as the scheduling of dental and doctor’s appointments for D.B.; (2) emergency planning by purchasing food and clothing for D.B. for Father’s household although it is Father who receives the Child Tax Benefit; and (3) being consistently available to parent D.B. at any time when Father and Step-Grandfather engage in conflict. She theorizes that the Society has tolerated issues in paternal family’s home for so long because Mother was the family’s safety net; this can no longer be the case in the face of the long travel time between Stoney Point and Arthur. She emphasizes that section 113(8) presumes that the child will remain in his current placement, which placement is with all three caregivers. While the circumstances of the placement with Mother have not changed during the status review period (i.e. she has lived in Arthur throughout this time), the change to paternal family’s home is obvious, and thus the language of 113(8) ought to be interpreted as creating a presumption in favour of placement with Mother.

[17] Following the Settlement Conference held by Justice Madsen on July 8, 2021, Her Honour noted: “We have explored a range of issues related to mobility in the context of this child protection case. The good news is that [D.B.] is well loved by his parents and by [Step-Grandfather] who is part of the parenting arrangement.” Her Honour noted that “in my view if a party is contemplating a move outside the region, a Motion should be brought.” Ms. Voll, as OCL for D.B., emphasizes the importance of this latter point, noting that Step-Grandfather’s move is a fait accompli – the vacancy date for the sale of Step-Grandfather’s home in Waterloo Region was in fact the next business day following the argument of the motion. Without wanting to detract from Step-Grandfather’s role in supporting the family, and D.B. in particular, she notes that Step-Grandfather did not even discuss the possibility of a move with Mr. Appleton, but simply decided to move for his own reasons regardless of the impact upon D.B. She confirms that D.B. instructed her to advise the court that he loves all three of his caregivers equally and that they are all integral to his life. Having said that, because of the potentially negative impact that a move to Essex County would have upon D.B.’s relationship with Mother and his younger sister, Ms. Voll indicates that the Office of the Children’s Lawyer cannot support Father’s request to move.

[18] Finally, in reply, Mr. Brohman for Father suggests that the timing of Step-Grandfather’s move was a fait accompli because of the nature of the housing market in Waterloo Region and underscores that Father has no intention of diminishing Mother’s parenting role.

The Law

[19] Mr. Justice S. Sherr of the Ontario Court of Justice dealt with a similar issue in the context of the Child and Family Services Act (“CFSA”) in CAS of Toronto v. G.M., although over a much greater distance. In that case, two of four children in care were placed with Maternal Grandfather in the Cayman Islands on consent of the parties. Father had been recently transitioned out of incarceration into a half-way house and had regular and frequent visits with the two eldest children. He sought to have them remain in care until he was able to plan for their placement with him. Mother supported the Society’s request to have the two eldest children placed with Maternal Grandfather in the Cayman Islands, and she moved her home to join Maternal Grandfather there.

[20] On the interpretation of subsection 64(8) of the CFSA, now section 113(8) of the Act, Justice Sherr referenced Mr. Justice J. Kukurin’s 2010 decision in CAS Algoma v. S.S.[^4], where His Honour wrote:

Subsection 64(8) does not create a presumption in favour of whomever has care and custody of a child. It goes further than a presumption. The use of the words “shall remain” implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child requires a change in that status quo. In my view, the use of the word “require” in this provision is not accidental. “Require” is a fairly strong word. It denotes considerably more than being desirable. It carries the connotation of necessity or obligation.

[21] Sherr, J. went on to distinguish mobility in the child protection context from family litigation brought between two parents, writing:[^5]

The best interests test under subsection 24(2)[^6] of the Children’s Law Reform Act is different than the best interests test under the [CFSA] – the latter test placing an emphasis on the risk of harm to children, the importance of the child’s cultural background, religious faith, the importance of a child’s positive relationship with a parent and the child’s need to have a secure place as a member of the family.

Subsection 1(2) of the [CFSA] states that one of the purposes of the Act is to recognize the least disruptive course of action that is available and appropriate in a particular case.

[22] I agree with both of these statutory interpretations, firstly that the word “require” in section 113(8) denotes a very high presumption in favour of the existing placement; and secondly that mobility in the child protection context differs considerably from mobility in the inter-parental litigation context.

[23] Justice Sherr set out the following inclusive list of factors for consideration on a mobility motion in the child protection context (the “CAS Toronto factors”):[^7]

a) Whether the proposed move is in the context of a protection application or a status review application. The court will likely apply a stricter test during an original protection proceeding since there has not yet been a finding that the child is in need of protection, the statutory time limits are less likely to have been exceeded, the parents will be just beginning to address the risk concerns and should be given a reasonable opportunity to show that they can safely parent the child.

b) The nature of the protection issues, including the severity of the risk concerns. This will likely dictate how long a parent might take or should be given to address these concerns. If the risk to a child is low to moderate and will likely be addressed in a timely manner, it is not a proportionate response to move a child far away from the parent to an extended family member. The parent should be given every reasonable chance to succeed. The consideration is different if the risk concerns are high and unlikely to be addressed by the parent in a timely manner.

c) Whether the proposed move will involve a change in who is caring for the child. If the change is being proposed in a status review proceeding (as is the case here) the test in subsection 64 (8) of the Act and the law set out in paragraphs 32-34 above must be applied.

d) Whether the child is in the care of the society at the time of the motion. It is generally advantageous to a child to be placed with a member of his or her family, rather than remain in a foster placement.

e) Whether the child will be moving to reside with a parent, which move will generally be viewed more favourably than a move to live with an extended family member.

f) How closely the child protection case resembles a domestic dispute. In some cases the society is only involved to monitor high conflict between parents and to protect the child from emotional harm. There may only be a supervision order in place. The closer the case resembles a domestic dispute the more appropriate it will be for the court to apply the principles reviewed in Boudreault in assessing whether to permit a proposed move on a temporary basis with one of the parents.

g) The nature of the relationship between the child and the proposed caregiver.

h) The proposed caregiver’s ability to meet the needs of the child in the new jurisdiction, including the child’s academic, medical, social, and development needs. It needs to be kept in mind that many children in child protection cases have special needs due to their exposure to substandard parenting.

i) The proposed caregiver’s ability to work cooperatively and honestly with the society and to comply with court-ordered terms of supervision.

j) The proposed caregiver’s willingness to facilitate any order for access to the left-behind parent and extended family members.

k) The ability and willingness of a child protection agency in the new jurisdiction to monitor any supervision order. Its ability to do so needs to be assessed in the context of the degree of any risk concerns with the caregiver – the higher the risk, the more important the ability to monitor the caregiver becomes.

l) The nature of the relationship between the child and the left-behind parent or parents and their extended families and the possible emotional risk of harm to a child of diminishing those relationships. The court will generally be more reluctant to approve a move where the left-behind parent has been actively involved in raising a child. That parent should be given a longer opportunity, within the parameters of the statutory time limits, to demonstrate that he or she can adequately address the risk concerns.

m) The impact of the move on the left-behind parent or parent’s ability to present a positive plan for the child.

n) The child’s age, stage of development and degree of maturity.

o) The child’s views and preferences.

Analysis

[24] There are three caregivers listed in the Final Order. By his unilateral choice to move outside of Waterloo Region regardless of D.B.’s best interests, Step-Grandfather has, regrettably, shown that his own needs take priority. This choice, coupled with the necessity of this review as occasioned by the move, removes him from the list of caregivers who can argue that the status quo favours maintaining placement with them. The uncertainty of Father’s housing situation, particularly considering the distance between the two potential locations in which Father will live (i.e. Waterloo Region or Essex County), undermines his role in the placement status quo. Placement of D.B. with Mother remains as the only intact part of the child’s current parenting arrangements. Of the three caregivers, therefore, only Mother is favoured by the language of section 113(8). In view of the presumption in favour of Mother occasioned by the legislation, Father’s position fails and the Society’s motion prevails.

[25] If I am wrong regarding the analysis of s. 113(8), I find that it is in D.B.’s best interests to be placed in Mother’s primary care. I agree with Ms. Ledrew Metcalfe that Mother has provided the safety net for D.B. since the Final Order was made. She has not only demonstrated her willingness and ability to actively absorb and use the tools and information learned through positive programming, the undisputed facts clearly show that she has been ready to take D.B. into her home on short notice to provide a safe space for him whenever the conflict between Father and Step-Grandfather escalates or Father finds himself unable to parent D.B. Finally, Father’s vitriol towards Mother as displayed in the hateful text messages causes me significant concern: simply stated I do not trust that he will be sufficiently motivated to actively protect and encourage D.B.’s long-distance relationship with Mother and D.B.’s sister if the move is permitted. Taking the CAS Toronto factors listed above into account, it is clear that D.B.’s interests will be best met in Mother’s primary care.

Order

[26] Based on all of the foregoing, Temporary Order to go placing the child in the primary care of the Respondent Mother, per draft signed today.

J. Breithaupt Smith, J.

DATE: August 23, 2021

Schedule “A”

74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[^1]: 2015 ONCJ 463; decision of Justice S. Sherr of the Ontario Court of Justice.

[^2]: 2020 ONSC 5513.

[^3]: The outcome of the preliminary inquiry was not available on the date of argument of these motions.

[^4]: 2010 ONCJ 332 at paragraph 16, found at paragraph 32 of CAS of Toronto v. G.M., supra note 1.

[^5]: CAS of Toronto v. G.M., supra note 1 at paragraphs 37 and 38.

[^6]: now 24(3) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as recently amended.

[^7]: CAS of Toronto v. G.M., supra note 1 at paragraph 41.