COURT FILE NO.: C397/21-01
DATE: September 20, 2021
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017
RE: Children's Aid Society of London and Middlesex, applicant
AND:
C.F. and S.M., respondents
BEFORE: SAH J.
COUNSEL: Catherine Dyck for the Society
Salim Khot for C.F.
Kristine Jackson for S.M.
M.R. and C.J., paternal grandparents, appearing
HEARD: September 17, 2021
ENDORSEMENT
Overview
[1] This is a decision in relation to three motions. The Children's Aid Society of London and Middlesex (the "Society") brought two motions seeking to place the child in the temporary care and custody of the paternal grandparents, with specified access to the father and supervised access to the mother. The mother moved for expanded unsupervised access on a week about schedule which includes overnight.
[2] Neither parent is opposing the requested placement order.
[3] The temporary order of Tobin J. dated April 23, 2021 placed the child, G.L.-F., born in 2021, (the "child") in the temporary care of the father subject to various terms, including that he not relocate his residence from the paternal grandparents’ with whom he was approved to reside with.
[4] The father decided to move out of his parents’ home.
[5] Section 94(9) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 ("CYFSA") permits the Court at any time to vary or terminate an order made under s. 94(2).
[6] The paternal grandparents are in the early stages of a kinship assessment and the Society has not identified any concerns with their ability to provide a high level of care to the child.
[7] On consent, an order shall issue in accordance with paragraph 1 of the Society's September 7, 2021 Notice of Motion.
[8] The issue that remains in dispute is a determination of the appropriate access regime for each parent.
Background
[9] The temporary order of Tobin J. dated April 23, 2021 provided access to the mother at the discretion of the Society with respect to frequency, location, duration and need and level of supervision. The mother was ordered to have a minimum of eight hours of access per week.
[10] The mother attended to have access with the child at the paternal grandparents' home, supervised by the grandparents, or in her own home, supervised by her brother.
[11] The father often had joint access with the mother in his parents’ home and did not regularly seek independent access.
[12] In mid July 2021, a temporary care and custody motion was brought by the mother seeking to have the child placed in her care or to have expanded access. Tranquilli J. dismissed her motion.
[13] By the end of July 2021, the father chose to leave the paternal grandparents' home. He briefly reconciled with the mother and resided with her for a time. He now resides elsewhere. He works as a roofer and his schedule does not permit him to have access during daytime hours.
[14] Currently, the paternal grandparents and the mother's brother are unable or unwilling to supervise the mother's access. Previously held overnight access visits supervised by the mother's brother are not occurring.
Issues
At this stage, what access order between the father and the child is in child's best interest?
At this stage, what access order between the mother and the child is in child's best interest?
Law and Analysis
[15] In Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784, Sherr J. determined that a material change in circumstances is not imported into the child protection context. Sherr J. noted that child protection cases involve the intrusion of the state into the autonomy of family life and gave consideration to the primary objectives under the CYFSA to protect children and help parents care for their children in the least intrusive manner appropriate in the circumstances. He distinguished this from the primary objectives in domestic legislation which is designed to assist families in addressing issues that arise from the breakdown of relationships or the separation of spouses.
[16] Sherr J. set out the following test, at para. 85, to be applied to change a temporary access order during an adjournment of a protection application:
a) The moving party has the onus of establishing that a sufficient change in circumstances has taken place since the making of the last court order. Whether the change is sufficient to change the order will depend on the circumstances of the case.
b) The court should conduct a contextual analysis when exercising its discretion as to whether it is in a child's best interests to change the access order, and if so, what terms and conditions are appropriate. The purposes in section 1 of the Act should always be at the forefront of the analysis. The suggested non-exhaustive list of factors set out in paragraph 83 above should be considered, where relevant.
[17] The non-exhaustive list of factors referred to by Sherr J., at para. 83, includes:
The nature and extent of the variation sought and the proportionality of the requested change to the change in circumstances since the making of the last court order. In particular, the court should examine the extent to which the passage of time has yielded a fuller picture to the court about the child, the parent or any family and community member involved with the family.
The degree to which the change in circumstances reduces or increases the risk of harm to the child.
The extent to which the proposed change meets the objectives set out in section 1 of the Act and the expanded objectives set out in section 1 of the CYFSA.
The best interest factors set out in subsection 37 (3) of the Act and the expanded best interest factors set out in subsection 74 (3) of the CYFSA.
The importance of:
a. Ensuring that access not remain static unless the safety of the child requires this;
b. Gradually and safely increasing access between a child and the parents; and
c. Providing the court with some basis to assess the parent's long term parenting potential.
- The stage of the proceeding. Is a trial that will determine the issue imminent? If so, it might be in the best interests of the child to have the trial judge determine the issue.
1. Father's Access
Position of the Parties
The Society
[18] The Society is seeking that the father have access a minimum of eight hours per week and that they have discretion as to whether access visits should be supervised or unsupervised.
[19] The child was first placed in the father's care provided that he resides with the paternal grandparents. This placement was suggested because the Society had concerns that he could not care for the child without their help due to his work schedule. The Society submits that if more time can be arranged, it should.
[20] The Society submits that the parents should not be together for an access visit. They have not expressed any concerns regarding allegations of the father's substance abuse when with the child.
The Father
[21] The father is agreeable to the access proposed by the Society as set out in paragraph 3 of their September 7, 2021 Notice of Motion.
[22] He submits that the paternal grandparents have seen and observed his care of the child and maintains that he can adequately protect the child.
The Mother
[23] The mother opposes the access order sought by the Society; however, in her Notice of Motion, she requests an order that is not entirely different. Specifically, the mother seeks an order that the father's parenting time with the child be as authorized and upon terms specified by the Society, and that the Society have discretion with respect to whether such access is supervised and, if so, the level of supervision.
[24] The mother submits that she and the father are not treated with the same yardstick. She suggests that she has provided the Society with information regarding the father's drinking and smoking during access visits and they have not taken those concerns seriously.
[25] The mother is disappointed because she reported to the Society abuse she suffered at the hands of the father which, she claims, includes physical, verbal and sexual abuse. She does not believe that the Society is taking her concerns seriously.
Analysis
[26] I find that the Society has met its onus of establishing a sufficient change in circumstance since the making of the last court order. Certainly, the fact that the father moved out of the paternal grandparents' home warrants a variation, and in this case the inclusion of an access term for the father. Any access provisions relating to the father needs to be specified given the placement order made by me today, on the consent of all parties.
[27] The mother's concerns with the father's access focus on her perceived distinction and how they are each treated. She suggests that she is treated unfairly.
[28] The mother offered no evidence to suggest that the access orders sought by the Society are not in the child's best interest and did not provide any evidence in support of any terms and conditions that may be appropriate. In short, her position is not child focussed.
[29] The access order as proposed by the Society is appropriate and proportionate to the change in circumstance since the making of the last order. Further, the change proposed does not, in my view, increase the risk of harm to the child. The proposed access will provide the court with some basis to continue to assess the father's long-term parenting potential.
[30] I find that the order sought by the Society at paragraph 3 of their Notice of Motion dated September 7, 2021, with the insertion of the words "per week", is consistent with the child's best interest. An order shall issue accordingly.
2. Mother's Access
Position of the Parties
The Society
[31] Initially, the Society moved for an order that the mother have at minimum eight hours of weekly supervised access with the child, with the supervisor to be approved by the Society.
[32] In a subsequent Notice of Motion, the Society moved for an order that the mother have at minimum two hours of weekly supervised access with the child, again, with a supervisor to be approved by the Society. The Society Family Visiting Program currently has availability for two hours weekly with access to commence Monday, September 20, 2021 from 12:30 PM to 2:30 PM.
[33] In their most recent motion material, they report that there have been increasing concerns with respect to the mother's presentation and mental health, report concerns from the paternal grandmother, and there is a lack of a suitable approved supervisor currently.
The Father
[34] The father agrees with the Society's position in their most recent Notice of Motion.
[35] He submits that the mother fails to take ownership for her behaviour, has demonstrated that she fails to understand what harm is in the context of a young child, questions her ability to care for a child if she was unable to care for herself, as she let her prescription medication lapse, and has not provided any evidence to support a finding that her proposed access schedule is in the child's best interest.
The Mother
[36] In her Notice of Motion, the mother seeks to have access with the child on an unsupervised basis on the following schedule:
Week one:
i. Tuesday from 12:00 p.m. to 4:00 p.m.
ii. Wednesday from 12:00 p.m. to 4:00 p.m.
iii. Friday from 12:00 p.m. to 4:00 p.m.
Week two:
i. Tuesday from 12:00 p.m. to 4:00 p.m.
ii. Wednesday from 12:00 p.m. to 4:00 p.m.
iii. Friday from 7:00 p.m. to Saturday at 2:30 p.m.
[37] In the alternative, if supervision is required, the mother requests that her friend, Mr. R.M., supervise during the above noted dates and times.
[38] The mother claims that she has never compromised the safety of the child and that there are no clear concerns of safety expressed by the Society.
[39] She submits that she has been treated unfairly and different from the father.
Analysis
[40] In relation to the mother's access, I find that the Society has met its onus of establishing a sufficient change in circumstance since the making of the last court order made in April 2021.
[41] Before I address the changes in circumstance that warrant a variation of the mother's access, I wish to highlight some positive improvements for which the mother should be commended, which include:
- maintaining stable housing and employment;
- enrolling in an adult learning centre to complete her high school diploma;
- completing courses at Craigwood for her mental health, though no evidence was offered to outline what courses were completed;
- enlisting the support from her neighbour, A.;
- attending aggression therapy when needed, though there is no evidence as to frequency of attendance;
- attending therapy to work through her diagnosis of borderline personality disorder, again, there is no evidence as to frequency of attendance; and
- taking medication for her mood disorder.
[42] Unfortunately, despite the foregoing, the evidence supports other circumstances have taken place which, in my view, are sufficient to change the access order.
[43] Those changes in circumstance include:
- concerns regarding the mother's current behaviour, presentation and mental health;
- the paternal grandparents' unwillingness to supervise her access as of Labour Day long weekend;
- the lack of a viable supervisor available or approved at this time;
- the mother's inability to keep a calm and appropriate demeanour;
- her continued misplaced focus on how the Society is treating the father, as compared to her; and
- suggestion of continued substance abuse.
[44] I accept the Society's evidence regarding the mother's recent behavior including recounts of multiple phone calls to the paternal grandparents and threats to call the police, multiple text messages and phone calls to the child protection worker, and recent screaming and swearing followed by making seven phone calls and sending twenty text messages.
[45] The mother admitted to the child protection worker that she is unwell and that her mental health is being affected.
[46] At one point the mother admitted to the Society that her behaviour of appearing out of control was due to not being able to share her allegations of abuse by the father with anyone. After a period of brief reconciliation, she alleged that he physically, verbally, and sexually abused her and that he acts inappropriately during access visits because he consumes alcohol and marijuana.
[47] The mother reported to the Society that she had attended court in July 2021 because she had been falsely accused of slapping someone in the face.
[48] Towards the end of August 2021, the mother continued to contact the child protection worker in an agitated state and shared her thoughts of acting out to receive mental health services sooner.
[49] The Society has contacted a CMHA support worker to provide the mother with support. As recently as September 8, 2021, the child protection worker visited the mother at her home with a support worker from CMHA, at which time it was observed that the mother failed to read the child's cues, became visibly upset when holding the child, raised her voice and was shaking.
[50] The mother denies this incident occurred as described by the Society. She claims she was seated, bouncing the child on her leg, and was not shaking. It is her evidence that the support worker and the child protection worker were asking her difficult questions that triggered her. She does not state what resulted from the trigger. I do not accept her evidence.
[51] The mother submits that she is passionate about her child and that her passion is misconstrued. She submits that she gets frustrated when the Society discounts her efforts and negative inferences are made.
[52] I have no doubt that the mother loves her child and wishes to bond with her. I have no doubt that she is passionate about her plight to gain additional parenting time. However, the mother's passion is better directed at focusing on her mental health and well-being and doing what she can to stabilize herself with a view of becoming a better parent for the child.
[53] She submits to have never compromised the child’s safety and submits that she needs time to learn how to care for the child. I accept that a bond needs to be developed between mother and child, so long as that bond is in the child's best interest.
[54] The mother acknowledges that she let her prescription medication lapse, but she refilled the prescription soon after. While this might have been a one-time mistake, the mother's mental health has been an ongoing concern identified by the Society and the mother must prioritize her mental health and well-being. Her failure to do so suggests that she might be unable to understand or appreciate how her mental health could affect the long-term well being of the child.
[55] She claims the child is not in danger or harms way and that there is insufficient evidence to support the access order sought by the Society. I disagree. I find the Society's evidence to be credible.
[56] I cannot find that it is in the best interest of the child to increase access with the mother at this time based on the evidence before me.
[57] Having consideration for the change in circumstance since the making of the last order, it would not be appropriate or proportionate for an increase in access to occur.
[58] The mother’s requested access order, in my view, potentially increases the risk of harm to the child.
[59] In addition to the foregoing, and when considering the best interest factors set out in ss. 37(3) and 74(3) of the CYFSA, particularly the child's age and level of development, unsupervised access is not appropriate at this time.
[60] Currently, there are no approved supervisors for the mother's access. The paternal grandparents are not an option. The mother's brother is no longer an option. The mother's grandmother was suggested but then retracted. The Society has made attempts to follow up with a friend suggested by the mother.
[61] In the absence of an approved supervisor, the Society Family Visiting Program is the only option and they can only offer a two-hour timeslot weekly.
[62] An order will issue in accordance with paragraph 1 of the Society's September 10, 2021 Notice of Motion.
[63] The importance of continuity in the child's care is an important factor to consider in this analysis. Although there is sufficient evidence to warrant a variation of the access order, I would not have reduced access to a minimum of two hours weekly had it not been for the absence of an approved supervisor.
[64] The court requires some basis to continue to assess the mother’s long-term parenting potential.
[65] Until at least September 3, 2021, the mother had access twice weekly, for four hours each, supervised by the paternal grandmother.
[66] There should be progression to gradually increase from the mother's two hours of supervised access to the child. Supervised access visits should continue to increase when a suitable approved supervisor is determined.
[67] The access terms need to be re-evaluated soon and the Society should promptly investigate supervisors proposed by the mother.
[68] The mother should work with the Society to provide names and contact information for any proposed supervisor and should ensure that the proposed supervisors know that they may be contacted and that they should follow up with any calls or reply to any contact from the Society.
[69] By the return date of this matter, the Society shall provide the court with an update regarding proposed supervisors with a view to expand her supervised access to at minimum six hours weekly.
Disposition and Orders
[70] A temporary order shall go as follows:
- The child, G.L.-F., born in 2021, shall be placed in the temporary care and custody of her paternal grandparents, M.R. and C.J., until final disposition of these proceedings or further order of the court subject to the supervision of the Children's Aid Society of London and Middlesex on the following terms and conditions:
(a) That the paternal grandparents allow access, on both a scheduled and unscheduled basis, to the home and cooperate with a child protection worker and a family support worker from the Children's Aid Society of London and Middlesex as frequently as and for as long as deemed necessary by the Children's Aid Society of London and Middlesex.
(b) That the paternal grandparents attend and participate in all scheduled meetings with a worker from the Children's Aid Society of London and Middlesex as requested.
(c) That the paternal grandparents allow a worker from the Children's Aid Society of London and Middlesex to have independent access to the child.
(d) That the paternal grandparents inform the Children's Aid Society of London and Middlesex of any change of address and or telephone number prior to such change occurring.
(e) That the paternal grandparents refrain from the use of, or from allowing others to use, any form of physical punishment on the child.
(f) That the paternal grandparents not allow anyone having access with the child to be under the influence of alcohol, marijuana or illegal substances.
(g) That the paternal grandparents not allow any physical or verbal aggression in the presence of the child.
(h) That the paternal grandparents ensure that the child is seen regularly by a family physician, at a frequency recommended by the said physician, and follow through with all medical treatment as recommended by the said physician.
The father, S.M., shall have a minimum of eight hours per week of access with the child. The Society shall have discretion as to whether access visits should be supervised or unsupervised.
The mother, C.F., shall have a minimum of two hours per week supervised access with the child. These access visits shall be supervised by an individual approved by the Society.
By the return date of this matter, the Society shall provide the court with an update regarding proposed supervisors with a view to expand the mother’s supervised access to at minimum six hours weekly.
The mother’s motion shall be dismissed.
This matter is already set for a settlement conference scheduled for September 30, 2021 at 11:45 AM. Therefore, no further scheduling is needed.
[71] I thank all counsel for their submissions.
“Justice Kiran Sah”
Justice Kiran Sah
Date: September 20, 2021