COURT FILE NO.: FC-13-FO001089-0004
DATE: 2021-09-09
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 (“the Society”), Applicant
- AND -
A.C., Respondent
- AND -
D.C., Respondent
BEFORE: Madam Justice D. Piccoli
COUNSEL: Jeffrey Boich, Counsel for the Applicant
Nazma Nigar, Counsel for the Respondent, A.C.
Patrick Brohman Counsel for the Respondent, D.C.
HEARD: July 7, 2021
CORRECTED REASONS FOR JUDGMENT: The original Reasons for Judgment was released on September 9, 2021 and corrected on September 13, 2021 and has been corrected as follows: On page 2, paragraph 1, and page 3, paragraph 7, the dates of birth of the children have been redacted.
reasons for judgment
Corrected decision: The correction was made on September 13, 2021.
The date in paragraph [72] 10. was noted as being February 2021.
A correction has now been made to change the date to February 2022.
I. Overview
[1] There are two summary judgment motions before the court, the first brought by the Applicant, the Children’s Aid Society of the Regional Municipality of Waterloo (“the Society”), dated October 26, 2020 and the second brought by the Respondent, D.C. (“the father”), dated March 12, 2021. Both applications seek a “custody” order with L.K.C., [date of birth redacted] (age 8) (“the child”), placed in the primary care of his father and the father to have sole decision-making authority. The applications differ when it comes to “access” for the mother and A.C. (“the maternal grandmother”). The Society seeks that the mother have access a minimum of six times per year for a minimum of two hours – the need of supervision in the father's discretion. The father seeks supervised access as arranged through the Child and Parent Place (a supervised access facility) by an agreeable third-party supervisor. The frequency and duration of the visits would be in the discretion of the father and in accordance with the child's wishes. The Society also seeks an order that the maternal grandmother have a monthly visit for four hours as agreed upon between the father and the maternal grandmother.
[2] The Society amended its status review application on October 27, 2020, changing the relief it was seeking from a nine-month supervision order in favour of the father to a s. 102 custody order in favour of the father and termination of the Society’s supervision. This is because the child has been in the care of his father under a supervision order since May 23, 2019 (over 2 years), and, according to the society, the child is doing well in the care of the father, whereas the mother was reincarcerated.
[3] The Society, the father and the Office of the Children’s Lawyer (“the OCL”) all take the position that there is no genuine issue requiring a trial regarding a s. 102 order in favour of the father or access.
[4] Following the break, the mother conceded that the child should continue to reside primarily with his father. She is not seeking a custody order. Her concern is that the father will not promote a relationship between she and the child or her family and the child. She states the father’s unwillingness to do so is an incident of custody and as such custody should not be awarded without a corresponding access order.
[5] The mother is prepared to concede the issue of a s. 102 custody order in favour of the father if the father agrees to the following:
(a) There will be therapeutic reintegration counselling as between the child and the mother;
(b) The access as between the mother and the child will be at the maternal grandmother’s home on an alternate weekend basis;
(c) The mother will be provided with information and advised of major decisions regarding the child’s education, health, activities, and extracurricular activities; and
(d) The mother’s increase in access will follow the recommendations of a reintegration counsellor.
[6] The father did not agree to all the terms. During argument of the motion he agreed that the mother and child need to be re-integrated and that the mother should write a letter to the child, which letter will be presented through the child’s counsellor, Mr. Peter Holden. Once that is done, the father stated he would be prepared to bring the child to Child and Parent Place on alternate weekends so that the child could have access with his mother, his maternal grandmother and his maternal siblings.
[7] This child has two maternal siblings who are the subject matter of other applications, namely, S.C., born [date of birth redacted], and J.C., born [date of birth redacted]. J.C. lives with the maternal grandmother, A.C.
[8] For the reasons that follow I find the child to be in continued need of protection. I also find that, given the father’s concession that the mother and child have alternate weekend access, a s. 102 custody order placing the child with the father is the least intrusive order that is in the best interests of the child. I have made specific determinations regarding access as between the mother and child, the child and maternal siblings and the child and maternal grandmother. I make these determinations based on the facts and evidence before me.
The Law
A. The Test for Summary Judgment in Child Protection Cases
[9] The Family Law Rules, O. Reg 114/99, allow for a matter to be resolved without trial by way of a motion for summary judgment. The moving party (the Society) has the burden of proof and shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial: see r. 16(4).
[10] In response to the affidavit or other evidence served by the Society, the responding party may not rest on “mere allegations or denials” but shall set out specific facts showing that there is a “genuine issue for trial”. If the evidence supports that there is no genuine issue for trial, the court is mandated by r. 16(6) to make a final order: see rr. 16(4)-(4.1) and (6). In its decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (“Hryniak”), the Supreme Court of Canada established a new approach to summary judgment motions, the details of which are described further below. In response to Hryniak, new powers were added under rr. 16(6.1) and (6.2) that permit the court to weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence, unless it is in the interests of justice for such powers to be exercised only at trial.
[11] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 80, the Court of Appeal for Ontario provided the following concise summary of the approach that the court should take to summary judgment within the context of child protection litigation, considering the decision in Hryniak:
Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
The burden of proof is on the party moving for summary judgment. Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
[12] Hyrniak states that the judge must first determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.
[13] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to those facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial: see Hryniak, at para. 4.
[14] In child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage rights for a vulnerable segment of our society under the Canadian Charter of Rights and Freedoms. Courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings, which apply the objectives of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYSFA”), including the best interests of the child, and which promotes Hryniak’s principle of reaching a fair and just determination on the merits: see Kawartha-Haliburton Children’s Aid Society v. M.W, at para. 76.
[15] A child’s need for permanency planning, within a timeframe sensitive to that child’s needs, demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that the child faces some better prospects than existed at the time of the Society’s removal of the child from their care and that they have developed some new ability as a parent: see Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (Ont. C.J.); Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423, at para. 98.
[16] Children before the court deserve an answer about their future. They should not have decisions about permanency planning delayed for months, often years, while their parents present well-intended and hopeful plans to the court about their future care but are unable to take the steps to translate their proposals into a plausible reality: see Children’s Aid Society (Simcoe County) v. T.D., 2012 ONSC 6737, at para. 7.
[17] The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child’s life with the result that, in giving the parents another chance, the child would have one less chance. There must be some demonstrated basis for a determination that the parents are able to parent without endangering the child’s safety: see Children’s Aid Society of Toronto v. C.G., at para. 103.
B. The Test on a Status Review Application
[18] In C.A.S. v. M.W. and M.S, 2020 ONSC 1847, Madsen J. succinctly summarizes the law on status review applications and the treatment of agreed statement of facts as follows:
On a status review, the task of the court is to assess what, if anything, has changed since the making of the prior final order. A status review hearing is not a re-hearing of the original protection application: see para. 51.
A consent order that ends an action is of the same effect as a judgment of a court following a trial or hearing, for the purpose of the doctrine of res judicata: see para. 52.
Prior court orders, reasons for decision, and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders: see para. 53.
Section 114 of the CYFSA provides that where an application is made for review of a child’s status 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;
b. order that the original order terminate on a specified future date;
c. make a further order or orders under section 101; or
d. make an order under section 102: see para. 73.
- The test on a status review application is as follows:
a. the original order is presumed to be correct. This is not a rehearing of the previous order that was made;
b. the court must first determine whether the child continues to be in need of protection and whether, as a consequence, the child requires a court order for his or her protection;
c. the court must consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then; and
d. secondly, the court must consider the best interests of the child. This analysis must be conducted from the child’s perspective: see para. 74.
Facts Admitted in the Statements of Agreed Facts and Other Relevant Undisputed Facts
[19] On May 23, 2019, Madsen J. made an order (the “May 23, 2019 order”) on consent that the child be placed with the father for a period of nine months under the supervision of the Society. Access to the child by the mother was at the discretion of the Society and supervised as deemed necessary by the Society. There was no access to the maternal grandmother set out in the order under review.
[20] In the May 23, 2019 order, protection findings were made pursuant to ss. 74(2)(b)(i) and 74(2)(b)(ii) of the CYFSA.
[21] In the statement of agreed facts signed May 23, 2019, the parties agreed to the following, among other facts:
The mother had been involved with the Society numerous times and for extended periods of time with regard to drug use, criminal activity, physical discipline, and adult conflict, starting in 2006.
The father was involved with the Society when he was in a relationship with the mother, prior to the child’s birth. The father has a long history of criminal activity and drug use. In January 2013, the father was incarcerated in Lindsay, Ontario, for drug trafficking and production.
Between 2017 and September 2018, the Society investigated numerous referrals regarding the mother, including fighting in the home, weapons, drug use, drug activities, neglect, inappropriate supervision, and criminal activities in the home. Child protection’s concerns could not be verified because when Society workers could get access to the home for scheduled and unscheduled visits, no concerns were noted.
The Society became involved with the mother and children again on September 9, 2018, when the father reported that her then-boyfriend kept a gun in his drawer beside his bed. A Society worker attended the home with police assist. The child showed the worker where the guns were and talked about the mother’s then-boyfriend being mean. The child indicated that the mother’s then-boyfriend held a gun to his mother’s head, which the mother denies. The mother did agree for the child to stay at the maternal grandmother’s home.
On September 13, 2018, the Society received information from police that the mother was charged with possession of fentanyl for the purposes of trafficking, possession of carfentanyl for the purposes of trafficking, and possession of stolen property over $5,000. The mother was on the run until October 10, 2018, when she was arrested and incarcerated at Vanier Correctional Centre for Women.
From September 2018 to January 2019, the child remained in the care of his maternal grandmother and was spending weekends with his father and his partner and her children. Access was reported as positive and no concerns were noted.
On January 24, 2019, the Society contacted the maternal grandmother as the mother was going to be released that day. The maternal grandmother disclosed that the mother was going to see the child for an hour in the afternoon. Due to concerns about lack of trust and to ensure adequate supervision of the child, the child was placed with the father.
On January 30, 2019, Neill J. made a temporary without prejudice order placing S.C. in the care and custody of the Society and this child in the care and custody of the father, subject to the supervision of the Society.
While the mother was in custody, she completed a number of programs: parenting programs, addiction programs, and life skills programs. At the time the statement of agreed facts was entered into, the mother was also engaged in personal counselling at a relapse prevention group. In addition, she had provided the Society with clean drug screens dated March 18, 2019 and March 26, 2019, and another in April 2019. The mother also agreed to attend random drug screens.
The mother started having supervised access with the child at the end of January 2019. She had five supervised visits with him and then on February 21, 2019, the maternal grandmother was approved to supervise the visits twice per week for a duration of four hours. There were no concerns noted regarding the mother’s interactions with the child during these visits.
From February 2019 to April 2019, the father made a number of allegations against the mother, including: continued drug use, the maternal grandmother allowing her to have unsupervised time with the child, the mother’s friends making threats to break and enter his home, the mother not complying with their request and expectations around access exchanges. On March 5, 2019, the father informed the Society that he had received information that the mother had used crack cocaine on several occasions since she was released from custody and he believed that she had been high during some of the phone calls with the child. The mother denies that the maternal grandmother was allowing unsupervised visits
On March 6, 2019, the mother gave birth to another child, J.C. There was no indication of the presence of drugs in J.C.’s system. On March 10, 2019, J.C. was released from hospital – he was healthy and progressing well.
On February 22, 2019, there was a conflictual exchange when the maternal grandmother questioned the father’s partner about concerns. The father’s partner advised that the child was distraught by the conflict and the mother was telling the maternal grandmother to stop. The mother claims that the child was upset because he did not want to leave her.
There were two investigations regarding the father and his partner, B.M. On February 21, 2019, the Society received a referral from a Crown attorney indicating that B.M. was acting as a surety for a person who was on bail for stalking, related domestic violence and who had a long history of criminal offences, incarcerations, and mental health concerns. The Crown was concerned for the safety of the children. It was later confirmed that B.M. was not acting as a surety for that person and that person was never left alone with the children. A further referral was received on March 11, 2019 from the father’s sister reporting that she used cocaine when the father and B.M. were in the home on the evening of March 1, 2019, while the children were in the father’s care. The father and B.M. denied the allegations. No disclosures of drug use were made by the children and the concern was not verified.
[22] On December 1, 2020, the mother signed a further statement of agreement facts in reference to the child S.C. The mother agreed to the following, among other facts:
On April 27, 2020, the mother was arrested for breaching her recognizance, as she was seen by police at a TD Bank without her surety;
S.C. reported that sometime during March or April of 2020, her mother’s surety was living in the home with her and her mother and the surety was using fentanyl regularly – the mother had been providing the fentanyl to the surety.
On August 11, 2020, the Society received a call from an anonymous source expressing concerns about the mother and S.C. The allegations were that the mother smoked crack cocaine and sold drugs from the home, that the child, S.C., used molly, cocaine and Xanax and had not eaten in three days, other than Fast Eddie’s, which she bought for herself.
On August 18, 2020, S.C. was charged with aggravated assault, assault with a weapon and three counts of possession of a Schedule 1 drug. S.C. and a peer became involved in a dispute with some other teens. S.C. pushed the victim, at the time age 16, to the ground and stabbed her seven times with a knife that was in S.C.’s possession. S.C. was subsequently arrested and remained in custody at Craigwood until August 24, 2020, on which day she was released into the care of her father, J.H.
In mid-October 2020, the mother advised the Society that she received a sentence of 2 years custody but would be eligible for parole after 8 months.
[23] Other relevant undisputed facts are:
The child was first apprehended from the mother's care on December 16, 2013, when the mother was charged with having possession of quantities of marijuana, THC, prescription pills, and cocaine. The mother subsequently pled guilty to a charge of possession and was sentenced and fined.
After the apprehension in 2013, the child was placed in the care of the maternal grandmother. The mother worked consistently to attend services to address her addiction, parenting, and relationship issues, and on November 18, 2014, her children were returned to her. In November 2015, the supervision order was terminated. The mother obtained a s. 57.1 custody order with respect to the child. Thereafter, the mother worked voluntarily with the Society. The Society closed their file in April 2016.
When the child was returned to the mother's care in November 2015, the mother and child lived with the maternal grandmother until April 2018. Thereafter, the mother lived on her own for five months until the child was again apprehended in September of 2018.
In December of 2016, the Society verified that mother's daughter, S.C. (then 11 years of age), had been engaging in oral and anal sex with a friend's son for the past five years.
In June 2017, the Society became involved with the mother when Waterloo Regional Police reported that her boyfriend was arrested with fentanyl, cocaine, and methamphetamine. The police executed a search warrant at the hotel where the mother, her boyfriend, and the children were staying and found syringes, rubber bands, and a naloxone kit. Police had also observed the mother in a car with her boyfriend and child when the boyfriend was involved in a suspected drug deal. The boyfriend subsequently admitted to occasional cocaine usage, however, the mother denied any knowledge of the boyfriend's drug usage.
In December 2017, the mother's 12-year-old daughter, S.C., admitted that she smokes marijuana every day.
On January 10, 2020, the mother was charged with possession of drugs for the purpose of trafficking, including fentanyl and methamphetamine, possession of a weapon and a breach charge. The fentanyl that the mother was found to be in possession of was located in a child's dresser.
For eight months prior to the swearing of the father's affidavit, sworn March 12, 2021, the father was employed as an undercover agent for the OPP.
As a result of father's employment as an undercover agent for the OPP, he and child will forever live in a protected environment. That means that they can never give out their address and the government and the OPP have a number of security measures in place to ensure their safety. The father asserts that he and his family chose not to enter the Witness Protection Program as that would involve a complete change of identity and never having contact with anyone from their past ever again.
B.M. and the father state they were concerned that if they entered the Witness Protection Program, the child would never be able to have a relationship with his mother or her family.
The father has been in a relationship with B.M. for approximately five years and they have lived together since January 2019. B.M. has four children between the ages of five and fourteen. B.M. and the father have one child together who is one year old.
The mother is concerned that because of the father’s employment the child will be alienated from his mother, his siblings, his grandparents and her side of the extended family. She is further concerned that the father may have to move on a moment’s notice if security measures are breached.
When the child came into the father's care, he had extreme difficulty controlling his emotions, resulting in many incidents at school, including extremely violent behaviour towards other students and teachers, and while in Senior Kindergarten, causing the evacuation of the classroom on a number of occasions. The father and B.M. worked closely with the school to ensure that the child could have success.
The child can become dysregulated in the home, which often results in the child becoming violent and expressing that he wants to kill himself.
As a result of the child's struggles, the father and B.M. have engaged the Mobile Crisis Team through Lutherwood and have had the child in trauma counselling with Mr. Holden, through Carizon, since November 24, 2020.
Mr. Christian Appleton, a Society worker, stated that he spoke to Dr. Kristen McLeod, a psychologist (trauma and attachment specialist), at Attune Trauma & Regulation Centre, who advised him that the child exhibits “shame-based behaviour” and that “allowing (name redacted) to avoid his mother for the rest of his life is not good and that parental reunification would be the eventual goal.” She suggested that “[w]hen kids say they don’t want to see a parent they are often not well and that cutting a parent off from shame is not healthy”. Dr. McLeod suggested that “perhaps reading a letter from mom in therapy with (name redacted) therapist Peter would be a starting point in helping him process his emotions.”
During the mother’s incarceration period in the Grand Valley Institute for Women and in February 2021, she completed twelve sessions of a program named “Women’s Engagement Program” (“WEP”) facilitated by the Grand Valley Institute for Women. This program was a combination of group and one-on-one counselling sessions, which focused on how to control emotions and not to make emotional choices, how to make healthy choices, create healthy boundaries and develop better parenting skills.
The mother completed a second counselling program named “Women Offender Moderate Intensity Program” (“WOMIP”). She completed 40 sessions facilitated by the Grand Valley Institute for Women in or around June 2021. It is a combination of group and one-on-one counselling focused on positive change making, better choices about relationships and reintegration to the Society as a law-abiding citizen. In her past, she engaged in a number of unhealthy codependent relationships; her wanting to help others fostered codependency in unhealthy relationships. In this intense counselling program, she learned how she can have her needs met without involvement in an unhealthy relationship. She learned how not to engage in behaviours that separate her from her children. She learned healthy ways to set boundaries, focus on problem solving and cognizant development of new effective ways of thinking. This program has been immensely helpful to her.
The mother completed two safety courses in or around May 2021, namely “WHMIS: In Sync with GHS safety” and “Making Safety Work: An Overview of Safety ERI Safety”.
At the time of argument of this motion, the mother was working at the warden’s office with a job of trust at the Grand Valley Institute for Women. She is doing various jobs like stocking up and cleaning offices. She is getting paid for her job. This job gave her confidence. She does not feel despair anymore that she will not be employed. This job trained her, and she can find a proper job during her parole time and reintegrate into society.
The mother was supposed to appear in front of a parole board at the end of June 2021. It was rescheduled due to her counselling program. She was to appear in front of a parole board the second week of July 2021. Her parole officer (“PO”) is supporting her day parole. Her community assessment (“CA”) with her father and mother has been done. Both of her parents are approved. Her father has been approved for the second time. She will be living with her father in Cambridge.
[24] The mother is adamant that she will be out on parole soon (day parole July 2021) and that she will serve the remainder of her sentence in the community. She is confident that she will be able to make decisions that are child-focused with her new skills. She completed counselling, learned to make better choices and be a better parent. She will be able to resume her in-person visits with her children. She can join therapy with the child to heal any trauma or any negative feelings and follow recommendations from the professional.
[25] The child continues to live with the father and his partner, B.M., and her four children. Overall, the evidence is that the placement is going well. Although the mother has made numerous allegations that the father uses and sells drugs and that he associates with others who use and sell drugs, the father denies this, and neither the Society nor the OCL have been able to verify the allegations.
[26] In this case, a trial is not necessary for me to determine that the child is in continued need of protection. The undisputed facts make it clear that the mother is in no position to resume care of this child based on the following, among other:
(a) The mother’s continued incarceration has made it impossible for the child to be returned to her. At the hearing of the motion the mother remained incarcerated. Her incarceration was a result of making the same choices she made when the May 2019 order was made. She struggles with a drug culture and inappropriate partners – her lifestyle puts the child at risk.
(b) The mother has been unavailable and unable to meet the child’s needs during the period under review.
(c) The risks that form the basis of the original order continue.
(d) It is in this child’s best interests to remain with his father.
(e) The child’s clear views and preferences is that he wishes to remain with his father. He deserves an answer about his future.
What is the Least Disruptive Placement for This Child?
[27] Sections 101(2) to (4) of the CYFSA obligate the court to consider additional factors when determining the issue of placement, including whether there are any less disruptive alternatives, such as community or extended family placements, and to make enquiries with respect to what efforts the Society has made to assist the child before intervention.
[28] Sections 101 and 102 of the CYFSA provide that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders:
that the child be placed in the care and custody of a parent or another person, subject to the supervision of the Society, for a specified period of at least three months and not more than 12 months;
that the child be placed in interim Society care and custody for a specified period not exceeding 12 months;
that the child be placed in extended Society care until the order is terminated under section 116 or expires under section 123;
that the child be placed in interim Society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months; or
that one or more persons be granted custody of the child, with the consent of the person or persons.
[29] The facts support a finding that the child is in continued need of protection. The facts applied to the law allow me to make this finding without the need for a trial. This is also the case as it relates to where the child will live. He will continue to live with his father. I am able to make a fair and just determination based on the evidence before me. The child has been in the care of his father under a supervision order for more than two years. He requires permanency and stability. Because I have enough evidence before me to make an access order, I am prepared to make an order for custody under s. 102 of the CYFSA. Without an order for specified access I would not make the custodial order given my concerns that father has not been encouraging the relationship between child and his maternal side of the family.
Best Interests
[30] Section 1 of the CYFSA provides a clear direction to the courts that all decision-making factors in child protection proceedings under Part V of the Act are subject to the ultimate issue: what is required to promote the best interests, safety and well-being of the child? The Court of Appeal emphasized in Algonquins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew, 2014 ONCA 646, 50 R.F.L. (7th) 272, at para. 70, in the context of a protection application under the Child and Family Services Act, R.S.O. 1990, c. C. 11, that “[n]othing displaces the best interests of the child, and no section of the Act overrides the child’s best interests.” The Ontario Divisional Court reiterated in J.E. and K.E. v. Children’s Aid Society of Niagara Region, 2020 ONSC 4239 (Div. Ct.), at para. 56, that all decision-making factors stipulated in the CYFSA must be considered “with the overarching goal of determining the best interests of the child.” The assessment of the child’s best interests must ultimately maintain a primary focus on the needs of the child and the importance of pursuing permanency planning for the child within a timeframe that is sensitive to those needs: see Catholic Children’s Aid Society of Toronto v. M.(M.), 2012 ONCJ 369; Catholic Children’s Aid Society of Hamilton v. R.M. and N.M., 2015 ONSC 5101, 65 R.F.L. (7th) 330; and Children’s Aid Society of Hamilton v. J.M. and C.W., 2017 ONSC 5869, at para. 41.
[31] The factors to be considered in determining the best interests of a child are contained in s. 74(3) of the CYFSA, which provides as follows:
(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.
[32] In consideration of the above, I find:
(a) The child has expressed a desire to remain with his father. His view regarding access with his mother has changed over time. The OCL acknowledges the child’s view regarding access with his mother waffles and is unreliable. OCL also indicates that access based on the child’s wishes would be problematic as the child is not able to clearly express his wishes in that regard. The child does wish to see his maternal grandmother and maternal siblings.
(b) I was not made aware of any cultural identity in respect of this child.
(c) Other relevant factors:
(i) The child was placed in the father's care under a nine-month supervision order on May 23, 2019. The child has developed a strong bond and affectionate relationship with the father, B.M. and her four children, and this placement appears to be going well.
(ii) The father is meeting the child’s needs. He has arranged for trauma counselling; he is involved in his schooling and he is attentive. My only concern is that the father has not maintained a consistent relationship between the child and his maternal family. He states he does not want to pressure the child – this despite the OCL indicating that the child waffles in terms of wanting a relationship with his mother.
(iii) The child has expressed that the father's home is the only place where he feels safe and since the family moved to their new home in March 2021, he has not had further outbursts.
(iv) The father’s inability to disclose his location has been tempered by Mr. Brohman’s undertaking in perpetuity to accept service of documents on behalf of the father.
(v) The child needs stability and consistency. He also needs to deal with issues he may have with his mother.
(vi) The child has a relationship and ties to his mother, his maternal siblings and his maternal grandmother and it is important that those relationships be fostered.
What is the Appropriate Access Order?
[33] With respect to access, section 104(1) of the CYFSA provides that the court may, in the child’s best interests, make, vary or terminate an access order in a proceeding under Part V of the Act (Child Protection) or on application under section 104(2):
Access order
104 (1) The court may, in the child’s best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
Who may apply?
(2) Where a child is in a society’s care and custody or supervision, the following may apply to the court at any time for an order under subsection (1):
The child.
Any other person, including a sibling of the child and, in the case of a First Nations, Inuk or Métis child, a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.
The society.
[34] Section 104(3) must also be considered in cases where the court determines that a custody order should be granted pursuant to section 102:
Access after custody order under s. 102
104 (2) If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child’s best interests. [Emphasis added.]
[35] In the case of Children's Aid Society of Toronto v. J.G., 2020 ONCA 415, 151 O.R. (3d) 320, the Court of Appeal reiterated the impact of the legislative changes in the CYFSA and the features of an analysis of access in a child’s best interests at paragraph 37:
[37] Most importantly for this case, the new Act changed the criteria for access to children in extended care by removing the presumption against access and making the child’s “best interests” predominant in determining access. As stated by this court in Kawartha and repeated in Peel, the change was not “just semantics” but represented “a significant shift in the approach to access for children in extended care.” Some of the changes to the test for access include:
• The burden is no longer on the person requesting access to demonstrate that their relationship to the child is beneficial and meaningful and in no way will impair the child’s future adoption opportunities.
• When the court undertakes a best interests’ analysis, it assesses whether the relationship is beneficial and meaningful to the child, and considers the potential impairment to future adoption opportunities, but only as part of this assessment and only where relevant.
• There is no longer a “presumption against access” and it is no longer the case that a parent who puts forward no evidence will not gain access.
• While any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests.
[36] In Children’s Aid Society of Toronto v. J.G., at para. 64, Benotto J.A. highlighted that “access” can come in many forms, including the exchange of gifts, emails, video chats or phone calls, and that the form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes. In J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 (Div. Ct.), at para. 38, the Divisional Court emphasized that pursuant to section 104, it is the court that is to impose terms and conditions respecting access “as the court considers appropriate.” Based on the wording of section 104, it concluded that the court cannot sub-delegate the decision as to terms or conditions of access to a nonjudicial actor, including the Society, and that an access order must include at least minimum terms of access.
[37] B.M. and the father state they would like the mother to have meaningful contact with the child, however, they first require that she demonstrate through her actions and lifestyle that she is prepared to accept responsibility for her actions and live a life free of drugs, addictions and associations with the criminal element. They state that any access with the maternal grandmother should be at their discretion.
[38] The mother feels the father is alienating the child from her. Until part way through the hearing of the motion, the father’s position was that he did not believe contact between the mother and the child was beneficial at this time. He was not prepared to make the child speak to the mother against the child’s wishes.
[39] The father’s position is that he will respect any order made by this court regarding access. He agrees that the mother has taken positive steps. He asserts that access needs to be supervised until the mother has proven herself given the history and especially after not seeing the child for some time. It remains his position that Child and Parent Place is the appropriate supervisor. Given his unique situation he is prepared to drive the child to Child and Parent Place in either Cambridge or Kitchener.
[40] I am not prepared to let the discretion regarding access remain with the father. The evidence shows that he has not encouraged the relationship between the child and his mother or the child and his maternal side of the family. I am making specified orders regarding access as between the mother and child and the child and maternal grandmother and sibling, J.C.
[41] The child, S.C., is incarcerated. Given the conviction and the instability surrounding S.C., access between her and the child will be at the discretion of the father.
[42] The mother was having supervised access visits with the child since the end of January 2019. On February 21, 2019, the maternal grandmother was approved to supervise the child’s visits with the mother and a schedule was set for visits to occur twice per week for a duration of four hours at the home of the maternal grandmother. From February through to June 2019, the visits occurred on a Monday or Tuesday and Thursdays after school. During the summer of 2019, these visits occurred during the afternoons.
[43] The mother did not have any face-to-face visits with the child from August 26 to September 23, 2019 and did not contact the Society to make alternate arrangements during this time. Visits could not occur as scheduled because the maternal grandmother was quite ill and her husband was not able/willing to supervise the visits during this time. The mother did maintain phone contact with the child during this time. The mother’s visits with the child resumed on September 23, 2019, once the maternal grandmother was released from the hospital and was available to supervise the visits.
[44] In early October of 2019, the father advised the Society that the child was having a lot of difficulty at school. This included such things as aggression, throwing chairs and scissors, hitting and making threats of self-harm. The classroom also had to be evacuated on several occasions. The father states that he and the school noted that this behaviour consistently occurred after the child’s visits with his mother. They say that the child reported to the father and to school staff that he was upset because of his mom but was not able to articulate more precisely what was upsetting him.
[45] Letters were provided from the school, but I disregard those letters as they are not admissible evidence.
[46] On October 24, 2019, the Society changed the mother’s visits with the child to occur on Wednesday evenings for approximately four hours and Saturdays from 12:00 p.m. to 7:00 p.m. They made this change because of the difficulty the child was having adjusting to school the next day after a visit and because a Saturday visit would allow the child a day at home to adjust prior to going back to school.
[47] As a result of the child’s concerning behaviour at school, the Society made a referral for the father and mother to consult with trauma and attachment specialist, Dr. McLeod, Psychologist, at Attune Trauma & Regulation Centre. There is no expert report from Dr. McLeod, but the parties do not dispute what she told them nor her recommendations. Dr. McLeod had a meeting with the mother and father separately. She also had a meeting with the child. Her assessment was that the child was exhibiting fear-based behaviours, likely due to trauma that he experienced being separated from his mother. Dr. McLeod suggested that it was not necessarily that the mother was doing anything particularly upsetting for the child during the visits. Dr. McLeod recommended increased contact between the mother and the child contrary to what the father suggested. She also recommended trauma therapy for the child. As a result, the Society expanded the mother’s visits with the child, adding one more visit per week for a total of three visits plus phone calls from 6:00 to 7:00 p.m. on a daily basis. The mother consistently attended those visits. She called every day but half of the time nobody picked up the phone. The mother was concerned about the child's aggressive behaviours at school. The mother asked Mr. Appleton to enroll the child in trauma therapy, and advised that she would like to join him during therapy to help him with any negative feelings and with transition. She states that the Society did not arrange trauma therapy.
[48] In November of 2019, the Society expanded access to three visits per week, Wednesdays and Fridays from 3:30 p.m. to 7:30 p.m. and Saturdays from 12:00 p.m. to 7:00 p.m. During November 2019 through to January 2020, the father and B.M. reported that the child would dysregulate at school after visits with the mother.
[49] Due to the mother’s charges on January 10, 2020 (drug possession, breaches), the Society’s position was that the increase in access did not appear to be making any difference in the child’s behaviour at school after visits. In mid-March 2020, the Society changed access to occur every other week on Friday and Saturday for four hours. From the perspective of the Society, the lengthy time between visits was set to allow the child the opportunity to stabilize between visits and hopefully to be more successful at school.
[50] In March 2020, Mr. Appleton reviewed the child’s then current situation with Dr. McLeod. Dr. McLeod suggested that a period of stability would be of benefit for the child and supported the decision to maintain visits every two weeks for the time-being and that the mother could write letters, send gifts, and maintain phone contact with the child between visits.
[51] The Society cancelled all court ordered access visits from mid-March to the end of April 2020 due to COVID-19. The mother maintained phone/Facetime contact with the child during this time. Phone calls occurred on a semi-regular basis. The mother has been in custody since April 27, 2020 and has had no contact with the child since mid-March 2020.
[52] On July 22, 2020, Mr. Appleton spoke to the child privately. The child advised that he misses his mother, thinks about her almost every day and would like to have a visit with her. The child was advised that when his mother was available to visit him a visit would be set up at that time.
[53] Since the mother’s arrest on April 27, 2020 for breach, she was in the Vanier Center for Women and was allowed to call her children and family. She called the father to speak to the child, but there was no answer. She sent letters, birthday card and crafts she made for the child to the father’s address. She did not know whether her letters or birthday card or crafts reached the child. She spoke to the Society worker, Mr. Appleton, numerous times to arrange a phone call with the child. He did not arrange/facilitate any phone calls with the child.
[54] The mother’s criminal counsel negotiated with the Crown to plead guilty to one charge of possession for trafficking and then she would be released on bail for two weeks prior to going into custody to serve her sentencing. She states she missed her children immensely, so she immediately notified Mr. Appleton about her bail and requested to see all her children, including this child. On November 16, 2020, she was released on bail. She contacted Mr. Appleton, requesting access with the child and her other children. He set up access with J.C. and S.C. at her mother’s home. Mr. Appleton told her he would try to set up access with the child, but no access was arranged. That whole week, she repeatedly requested, begged, and cried to Mr. Appleton to see the child. Neither in-person nor telephone access was set up with the child. Mr. Appleton told the mother that the father was refusing to give any access. The Society failed to arrange any access with the child.
[55] The mother instructed her counsel to request a mediation to the Society to resolve the issues since she would be out on bail on November 16, 2020 for two weeks. On or about November 10, 2020, her counsel requested mediation via email. The Society did not respond. The father responded through his counsel and refused to join in any mediation. On November 24, 2020, the mother instructed her counsel to send a proposal to the Society to resolve the issues and request access with the child.
[56] On or about November 27, 2020, the father allowed the mother a short phone call with the child.
[57] From May 2019 to February 2021 the child was having access with his maternal grandmother and maternal siblings on day visits and overnights as agreed upon by the father. These access visits have been occurring on a weekly/biweekly basis.
[58] On February 24, 2021, the child was at his maternal grandmother’s home when the mother called from prison. During both phone conversations, the mother states that the child expressed his love for his mother like a normal seven-year-old child. The child expressed to his maternal grandmother “I am going to get in trouble at home for doing this” then went back to talking to his mother.
[59] The father and B.M. agree that after the phone call in February 2021 they terminated in-person access with the maternal grandmother and maternal siblings. They have continued telephone contact between the child and his maternal grandmother. They say the child was upset after speaking to his mother and that the maternal grandmother should not have allowed him to do so. B.M advised that as a result of this phone call, the child does not want to speak with his mother again.
[60] On April 8, 2021, Mr. Appleton states that he described to Dr. McLeod what had recently happened. Dr. McLeod did not reinterview the child. Dr. McLeod advised him that the child exhibits shame-based behaviour, and when he sees his mother this behaviour is triggered. He carries a lot of anger towards his mother and he continues to blame himself.
[61] Dr. McLeod suggests that in relation to contact between this child and his mother, “we meet kids where they are at, not being too forceful”. She suggested that at some point, the child is going to have a relationship with the mother and that what needs to be done is to help him manage it. She suggested that reading a letter from the mother in therapy with Mr. Holden would be a starting point in helping the child process his emotions.
[62] B.M. advised the worker that she gave the child the letter from his mother and that he would not read it and instead ripped it up. It was not appropriate for B.M. to provide the letter to the child – the letter should have been provided as per the recommendations of Dr. McLeod.
[63] The father acknowledges that the letter was not delivered through the therapist – his only explanation is the reaction the child had to the letter from B.M.
[64] The child enjoys attending counselling with Mr. Holden. A letter from Mr. Holden, dated March 25, 2021, was attached to the father’s affidavit. In that letter he states, “it is unclear whether contact with his mother should be reinstated”. This letter is not proper evidence before the court. Mr. Holden should either have sworn an affidavit or a report from him should have been served and filed in accordance with the Evidence Act, R.S.O. 1990, c. E.23.
[65] Similarly, the recommendations of Dr. McLeod are hearsay. Given that all parties agree that these were the recommendations made by her, I will consider those recommendations.
[66] The father now agrees that a letter can be given to the child through the therapist. He states that the therapist should then speak to the child and go through him to determine access. I do not agree. I am not prepared to subrogate my decision making with respect to access to Mr. Holden.
[67] The father states that he will continue the phone calls with the maternal grandmother, which are occurring weekly, but does not want an order for face-to-face contact, as he states that should be in his discretion. I do not agree, as I do not believe he will exercise that discretion in the best interests of the child. By the father’s own admission, until May 2019, the child lived the majority of his life with his maternal grandmother, yet he has chosen to deny the child face-to-face contact since February 2021.
[68] The father moved in March 2021.
[69] It is clear that the child has had a meaningful and beneficial relationship with his maternal grandmother and his brother J.C. It is also clear that he loves and misses his mother and that he is angry with her. There is no reason to deny him this relationship nor put pressure on him to decide the terms of his relationship. This is the responsibility of the parents and, if they cannot agree, the court.
[70] There is no need for access to be supervised at Child and Parent Place. The maternal grandmother had the child in her care for a significant period of his life. The child should not be punished because the maternal grandmother allowed the mother to speak to the child on the phone in February 2021, nor do I see that the maternal grandmother did anything wrong in allowing the child to speak to his mother.
[71] The mother has made it clear that she will follow all of the recommendations of the reunification counsellor.
Orders
[72] I make the following orders:
The supervision order made May 23, 2019 by the Honourable Justice L. Madsen is terminated.
The child shall be placed in the care and custody of his father pursuant to section 102 of the CYFSA.
The child shall continue his counselling with Mr. Peter Holden.
The mother shall, within 14 days, write a letter to the child, which shall be presented to the child through his counsellor, Mr. Peter Holden within 30 days of the date of this order.
The costs associated with Mr. Peter Holden shall be born by the father.
The mother may, at her cost, retain a reintegration/reunification counsellor.
The mother and the child shall have weekly phone calls commencing November 1, 2021.
By November 13, 2021, if the mother is no longer in custody, face-to-face access between she and the child shall commence on November 13, 2021 and alternate Saturdays thereafter for a minimum period of four hours. If she remains in custody, the face-to-face access shall commence within 30 days of her release from custody. The access shall be supervised by the maternal grandmother or such other person as the parties may agree.
30 days after the mother begins her face-to-face access as per paragraph 8 above, the mother and the child shall have overnight access for a minimum period of 24 hours on alternate weekends. The access shall be supervised by the maternal grandmother or such other person as the parties may agree.
By February 2022, the parties shall revisit (if they have not already done so) whether continued supervision is necessary. Should they be unable to agree, an action can be commenced in the Unified Family Court in Kitchener, Ontario.
The father shall drive the child to and from access, as the father has requested, given that he is unable to provide his location.
Any proposed changes to the custody and access arrangement are to be reported by father to The Children’s Aid Society of the Regional Municipality of Waterloo.
Any variation of this Order will be done under the Children’s Law Reform Act and father shall be noted as the Applicant.
The mother has the ability to receive information in respect to the child pursuant to s. 28(8) of the Children’s Law Reform Act. The identifying information may be redacted to ensure that the father and child’s security can be maintained.
The maternal grandmother and J.C shall have access with the child at minimum once a month for four hours, the date and times to be agreed upon between the father and the maternal grandmother. If the parties cannot agree, it will start at the beginning or end of the mother’s access with the child.
Service of documents by the mother on the father will be effective upon service to Patrick Brohman, 553 King Street East, Cambridge Ontario, N3H 3N4, Fax: 519-653-0430, Email: pbrohman@bellnet.ca, or a designate of Patrick Brohman’s should he no longer be practising law.
Justice D. Piccoli
Date: September 9, 2021