Court File and Parties

BARRIE COURT FILE NO.: FC-21-526-00 DATE: 2022-02-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dnaagdawenmag Binnoojiiyag Child and Family Services, Applicant AND: C.T., Respondent Mother J.C., Respondent Father

BEFORE: Madam Justice R. S. Jain

COUNSEL: T. Milne, Counsel, for the Applicant C. Severn, Counsel, for the Respondent Mother L. Paterson-Kelly, Counsel for the Respondent Father

HEARD: February 18, 2022

Endorsement

Introduction

[1] This is a motion requesting an order on an urgent basis varying the temporary supervision Order of Jain J. dated July 16, 2021 (and amended Dec. 13, 2021) that placed the child (“L.T.C.” and/or “the child”) in the care and custody of both parents under terms of supervision as set out in the Agency’s Amended Application.

[2] Motions were brought by Dnaagdawenmag Binnoojiiyag Child and Family Services (“DBCFS” and/or “the Agency”) and the Respondent Mother (“C.T. and/or “the Mother”) and the Respondent Father (“J.C.” and/or “the Father”) to change the placement of the child.

[3] The Agency and Mother both seek an order to allow the Mother to continue with the primary care of the child under the supervision of the Agency and the maternal grandmother, (“K.T.” and/or “the maternal grandmother”) pursuant to s. 94(2)(b) and (c), 94(6), 94(9) and 104 of the Child Youth and Family Services Act [1] subject to terms and conditions.

[4] The Father seeks an order for the placement of the child into his and the Mother’s equal care on a “week about” basis under the supervision of the Agency and the maternal and paternal grandmothers subject to terms and conditions.

[5] The Agency takes no position on the Father’s motion for equal parenting time/care and/or any increase in his parenting time/care of the child. The Mother asks that the Father’s motion be dismissed.

Background

[6] The Father and Mother are the parents of the child L.T.C. who is approximately one and a half years old (1.5 years old). The DBCFS became involved with this family on March 24, 2021, after a request for assistance on behalf of Halton Children’s Aid Society. Concerns included the Mother’s mental health, substance use, and ongoing conflict with her peers.

[7] The Mother and the child were residing at a mothering house in Burlington when they left the jurisdiction and moved to Stayner, Ontario to reside with the Father and his parents.

[8] The Agency issued a protection Application on May 12, 2021. The Agency sought a finding under Part V of the Child Youth and Family Services Act (2017) [2] that the child is in need of protection because there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or cause by that person’s pattern of neglect in caring for, providing for, supervising or protecting the child under s. 74(2)(b)(ii) of the CYFSA.

[9] The Agency’s protection concerns were the Mother’s mental health and capacity to parent (unstable behaviours, partying and verbal threats); lack of housing; and misuse of substances (she admitted to using crack cocaine but denied any addiction or that it had an impact on her parenting). The Agency’s protection concerns about the Father were his capacity to parent (reliance on paternal grandmother) and his inability to act protectively (not prioritizing the needs of the child over the relationship with the Mother). The Agency’s protection concerns about both parents was the ongoing physical and verbal conflict between them.

[10] The Agency asked for an order placing the child with the paternal grandmother subject to the supervision of DBCFS for a period of six (6) months with supervised parenting time to the parents. The child was placed in the temporary care of the Agency and placed in a “kin in care” arrangement with the paternal grandmother who was declared a “place of safety.”

[11] In late June 2021, the Mother secured placement in another mothering house, “Michael House” in Guelph. The Agency amended the protection Application on July 14, 2021. They asked for an order placing the child with the Mother subject to the supervision of DBCFS for a period of six (6) months subject to certain terms of supervision and access to the Father. One of the most important terms of supervision was that the Mother shall reside at Michael House in Guelph, Ontario. The Agency submitted that this placement was in the best interests of the child because the Mother would be surrounded by support to help her meet the child’s needs and address the protection concerns.

[12] The Father opposed the Agency and Mother’s positions and on July 16, 2021 a temporary care hearing was held. There was a dispute about who the pre-intervention caregiver was. On July 16, 2021, this Court made a finding based on the evidence that the child had been removed from the care of both parents. This same Order placed the child in the care and custody of both parents under terms of supervision (with the Mother primarily residing at Michael House and with the Father secondarily residing with the paternal grandmother on alternate weekends from Friday evening until Sunday). This Order was amended on December 13, 2021 to permit the Mother some limited unsupervised parenting time.

[13] On consent, the requisite s. 90(2) findings have been made about the child and a consent Order was made by Krause J. finding the child in need of protection pursuant to s. 74(2)(h). [3]

The Material Change that Triggered this Motion

[14] The Agency says that on February 1, 2021, a meeting was held at Michael House to discuss next steps for the Mother, and it was decided that the Mother would be transitioned to their supportive housing program in June 2022. Later that evening, it was discovered that the Mother’s most recent drug test was positive for amphetamines. The Mother denied using drugs and offered the explanation that she had used some cough syrup that had interacted with her medications to create a “false positive” result. I am not going to go into detail about this incident except to say that the Mother went to great lengths to create a narrative surrounding the circumstances of this drug test.

[15] In the affidavit of J. Jones - Child Protection Worker (CPW) with DBCFS dated February 14, 2022 she states the following:

On February 7, 2022, an interagency meeting was held between DBCFS and Michael House where they discussed their position with respect to the mother’s placement there. Michael House had issue with the mother alleging she had medication in her bedroom despite having been warned about this prior and lying to staff about medication. Michael House was clear in this discussion that their position was that the mother had breached their placement agreement, and they would not discharge her due to drug use, but rather due to the mother’s dishonesty around the topic and her effort to appear to “cover it up”. There was a lack of trust that had been building and ongoing as between the mother and Michael House which was a concern for Michael House, and this recent event caused the catalyst for Michael House to decide the mother continuing her placement there. [4]

[16] On February 8, 2022, Michael House informed the Agency via email that they had reached their decision. They stated that they were choosing to discharge the mother because “[C.T.] has shown limited insight into this whole situation and has put much effort into proving her test is a false positive.” [5] Michael House set the Mother’s discharge date for Wednesday, February 16, 2022. Michael House recommended that if the Mother would like to come back to their program, that she would have to attend and complete an addictions treatment first, and afterward they would consider her for re-entry.

[17] In a letter dated February 9, 2022 from Michael House to the Mother, it says the following:

It is with deep regret that I share with your that your residency at the Residence of Michael House is being revoked as of Wednesday February 16, 2022. Your behaviour displayed in the recent weeks is against our policies, procedures and guidelines – even though you have signed paperwork agreeing to live by the terms and conditions of the Program Agreement.

We believe that the decisions and choices that you have made represent limited insight into your situation. [6]

[18] Although there is evidence that the Mother had both made some progress addressing protections concerns, it is clear that she also experienced some challenges with behaviour and complying with the rules. I find that the circumstances surrounding the above incident and the discharge of the Mother from Michael House all amount to a material change in circumstances.

Changing a Temporary Placement Order - The Legal Tests

[19] As stated by Himel J. in Children’s Aid Society of Toronto v. L.L. (2003), when changing a temporary placement order during the adjournment of a protection application the court must find a material change in circumstances since the making of the last court order. [7]

[20] Once a material change in circumstances is established, the court shall conduct a contextual analysis to determine if the court should use its discretion to change the placement order. The legal tests to change a temporary placement order during the adjournment of a protection application are reviewed and clearly set out by Sherr J. in Catholic Children’s Aid Society of Toronto v. R.M. (2017). [8] Sherr J.’s decision was recently relied upon by Spence J. in Catholic Children’s Aid Society of Toronto v. S.M. (2021). [9] The court must consider the extent to which the proposed change meets the paramount purpose and other purposes of the CYFSA as set out in s. 1 to “promote the best interests, protection and well-being of children.” The paramount and other purposes in s. 1 of the CYFSA should always be at the forefront of the analysis. The court shall also consider the following non-exhaustive list of factors:

(a) 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 order; (b) The degree to which the change in circumstances reduces or increases the risk of harm to the child; (c) The extent to which the proposed change meets the paramount purpose set out in s. 1 of the CYFSA; (d) The tiered considerations for temporary custody orders set out in s. 94 of the CYFSA that endeavour to keep the level of intervention proportionate to the child’s needs; (e) The best interest factors set out in ss. 74(3) of the CYFSA; (f) When the trial of the case will take place. If the case will proceed to trial soon, the court needs to determine if the evidence of change is enough to change placement prior to a full testing of the evidence at trial. The risk is that the child’s placement is changed just prior to trial and changed again after trial. This could cause considerable disruption to a child. [10]

Analysis - Applying the Legal Tests to This Motion:

[21] In this case, all parties agree that a material change in circumstances has taken place.

The Agency’s Plan and the Mother’s Plan

[22] Both the Agency and the Mother seek orders placing the child in the care of the Mother with the supervision of the Agency and the maternal grandmother. The terms of supervision requested by the Agency are more restrictive than those requested by the Mother. The Agency readily admits that the terms of supervision may be trying on the maternal grandmother, however, they are required because of the circumstances of requiring this motion. The Agency requests that the court focus on the building level of distrust between the Michael House and the Mother. It was not just the failed drug test that caused the Mother to be discharged. The Mother continues to face other serious protection concerns which necessitate the supervision terms.

[23] The Mother says that the drug test result was a “false positive” for amphetamines. She denies any illicit drug use and explains that the result is likely because of cold medicine that she took which may have reacted with a new medication she is on. She says in her Reply affidavit dated Feb. 17, 2022 that “The false positive resulting from cough medicine use is something that has happened to me before.” She says her doctor provided a letter that indicates that the cold medicine she took could cause false positives for amphetamines. She says that despite making “great progress” at Michael House she was dismissed from Michael House because they allege, she was “dishonest” which she denies. She accepts responsibility for causing the entire problem by not giving the cough medicine to the staff at Michael House when she brought it into the house.

[24] The Mother says that she plans to stay with her mother pending a new spot in another Mothering House or she obtains alternative housing approved by the Agency and the court. She says that her Mother’s house is a supportive parenting environment. She has completed an interview with a Mothering home in Cambridge, which, if accepted, there is a 1-2-month waitlist. The maternal grandmother is supportive of and consents to supervising the Mother’s parenting and allowing the Mother to move into her home temporarily while the Mother seeks to establish a more permanent home, or she is accepted into another Mothering House. The maternal grandmother is a retired elementary school teacher. The maternal grandmother provided an affidavit to confirm her understanding and consent to supervise the Mother and the child and support them in this time of need and ensure that the Mother “remains on the right path and ensure that she can move forward with obtaining permanent housing for herself and her son.” She further confirmed that it is not her intention to take custody of the child.

[25] The Mother relies on a supportive letter from Michael House dated January 31, 2022. I find this letter was quite positive about the Mother and child’s progress and their intention to increase the Mother’s off-site time to accommodate her work placement program in the community. It further commented on how the Mother followed through with isolating with the child (due to a positive COVID test) and that she “did really well with parenting him while confined to her bedroom. This has shown that [the Mother] has the ability to parent under stressful situations.” They were encouraged by her persistence. In my view, I can and will give weight to this letter as showing the Mother made some progress despite the circumstances of her discharge from Michael House.

[26] The Mother further relies on a letter from Dr. Mitchell dated February 2, 2022. Despite the able submissions of counsel for the Mother, I find the letter does not actually support the story given by the Mother. I find that Dr. Mitchell’s letter simply (and briefly) repeats what the Mother has told him. All the letter says is that the Mother “recently had a positive urine drug screen for amphetamines. She tells me she has recently used decongestants, and this may have been why the test was positive.” In my view, the doctor is just repeating the Mother’s excuse and little weight can be given to it. The letter provides little to no confidence to the court that supports the Mother’s claim. I find this letter unhelpful to the court.

[27] I am not satisfied with the explanations provided by the Mother regarding the allegations of her untruthfulness and behaviour at Michael House. Although she has made progress, I find that she tested positive for amphetamines and she has not proven her allegation that the unclean drug test was due to cough medicine. The Mother said in her own affidavit that she knew cough medicine could cause a “false positive” as it has happened to her before. It begs the question that if the Mother has that kind of knowledge and experience than she should have known better. She should have been hyper-vigilant to the potential for a false positive and she should have spoken to Michael House and/or her doctor about this possibility prior to the drug test. I further do not accept that she “had no idea the problems that this would cause” or that if she “had known how much an issue they were going to make of it” she “would have of course given them the bottle.” Unfortunately, in my view, her story on this incident, does not have the ring of truth and lacks credibility.

[28] It is clear to the court that the trust between the Mother and staff at Michael House was already deteriorating. As stated in the correspondence from Michael House, there were other issues with the Mother’s behaviour and lack of insight as well. In my view, this situation was “the last straw” (so to speak).

[29] The Father says that the relationship between the Mother and maternal grandmother is not supportive or positive. The Agency acknowledges that the supervision terms may be trying on the maternal grandmother and she may need some respite.

[30] In my view, the change in circumstances has increased the risk of harm to the child such that the Agency and the Mother’s proposed change to the placement is insufficient to address the paramount purpose and other purposes of the CYFSA. In my view, their proposed variation to the temporary placement Order is not in the best interests of the child and is not proportionate to the risk of harm and/or the child’s needs.

The Father’s Plan

[31] The Father and paternal grandmother have repeatedly stated they are concerned about the Mother continuing to have care of the child. Their concerns are primarily about the Mother’s alleged substance use, instability and need for supervision. They are further concerned about the Mother’s behaviour which they believe is escalating. They say that the relationship between the Mother and maternal grandmother is negative and unsupportive. They do not support the child residing with the Mother and maternal grandmother. The Father seeks an order for increased parenting time with the child. The father argues that since the child was removed from the care of both parents, he should return to the care of both parents. He seeks a shared care placement and a “week about” schedule.

[32] The Father says that the Mother is just making excuses to cover up her failed drug screen. He says that Michael House was supposed to provide training, education, and support. He says that the Mother’s behaviours and poor choices resulted in her failing and being discharged. Now that the Mother has been discharged from Michael House, he expressed doubts that she will continue to make progress in addressing the protection concerns.

[33] In my view, the Father’s allegation that the Mother has “failed” or made no progress cannot be given a great deal of weight. This is directly contradicted by the letters from Michael House. I have said it before, and I will say it again, the Father IS NOT the evaluator of the Mother’s progress in addressing the protection concerns. He does not get to decide whether or not the Mother requires further or different supervision.

[34] The Father is concerned that the maternal grandmother did not offer help to the Mother before. There is some evidence that the Mother and maternal grandmother had a strained relationship in the past. The Father speculates that the maternal grandmother will be overburdened by the supervision terms and he has no faith her help will last.

[35] The Father provided the court with an affidavit from one of the Mother’s ex-boyfriends who commented on what he believed was neglectful behaviour of the Mother. He provided hearsay evidence about what others have told him about the Mother’s behaviours and choices.

[36] I am not satisfied with all of the continued hearsay evidence, speculation and allegations of the Father about the Mother’s drug use and behaviour and regarding her “friends” and “ex-boyfriend’s” allegations. Many of the Father’s allegations are self-serving and/or are from the past and I am not going to give a great deal of weight to them.

[37] I further do not find the Father to be more credible than the Mother. He admitted in his own sworn affidavit that when the Mother and Father were together, he assisted the Mother in her dishonest behaviour by helping her “beat” drug tests in the past. One of the protection concerns about the Father is that he is unable to put the child’s needs ahead of his relationship with the Mother. As they say, “people in glass houses should not throw stones.”

[38] I am further not satisfied with the Father’s allegations that the maternal grandmother does not support her daughter. The maternal grandmother provided a very helpful and detailed affidavit confirming her commitment to keep the child safe and to assist the Mother “in this time of need” to “ensure she remains on the right path and ensure that she can move forward with obtaining permanent housing for herself and her son.” I found the maternal grandmother’s affidavit to be very compelling and realistic.

[39] The Mother says that if the child is placed with the Father, it is really the paternal grandmother who will be doing all the parenting. The Father denies this. Although the paternal grandmother assists, he says that he also has primary care of his other older child (half-sibling of L.T.C.). The Father says he works and has an income. He says there have never been any concerns raised about his care of his older child. There have not been any concerns expressed about his care of L.T.C. since the July 2021 Order.

[40] The Father says (and the court has found) that the child was removed from the care of both parents. He says that he has a solid, loving, and stable home with the paternal grandmother and his extended family. He says that both parents are entitled to have the child placed in their care. The Father says that he doesn’t see any real support from the Mother in understanding that the child needs both parents in his life. He proposes that the safest way for the Mother to continue making progress and to ensure that the maternal grandmother is not overburdened with the terms of supervision, is with a temporary equal (50/50 “week about”) time sharing and placement order.

[41] The Agency took no position on the father’s request or on whether or not his parenting time should or should not be increased. They did not consent to the Father’s proposal, nor did they oppose it. This position was unfortunately not very helpful to the court. The Agency did submit that a 50/50 arrangement (week about) is a different scenario than has been in place since July 2021. They agreed that the maternal grandmother could require some respite.

[42] The maternal grandmother’s house is in Port Hope and the proposed next mothering house is possibly in Cambridge (both are further away from the Father). In my view it is not in the child’s best interests to be moved so far from the Father that it becomes even more difficult for the court and the Society to assess the progress and the parenting skills of both parents.

[43] The Mother says that the Michael House was preparing to transition her into Supportive Housing. She says that if the Father obtains 50/50 parenting, she will lose the ability to enter another mothering house and/or she will be excluded from the Supportive Housing. No evidence was provided to the court on this submission.

[44] In my view, the Mother’s plan is unclear at this time. The plan to stay with the maternal grandmother is temporary. It remains to be seen whether she will succeed at being admitted to another mothering house or whether she will find other appropriate housing.

[45] This matter is unlikely to proceed to trial soon. The court needs more evidence about both parents’ skills and capacity to parent the child. Both parents still have work to do to address the protection concerns. The circumstances in this matter have been fluid for almost an entire year since the Agency became involved in this family.

[46] Both of the parents continue to face serious communication and maturity challenges in parenting the child. They continue to find fault in each other and focus on blaming each other for everything, even when the child gets sick or falls down. Babies get sick and fall down for many reasons. Both of these parents and their families do not strike the court as people who want the child to become ill or injured or would intentionally cause him harm. It is clear to the court that both parents and their families care about the child and want the best for him. However, instead of focusing on the problem, they are hard on each other and simply blame and point fingers. Isn’t it time for them to move forward?

[47] In my view, under these new circumstances, the plan put forward by the Father for a shared (week about) is more fulsome and accountable for both parents. Both parents are reliant on their relationships with their mothers (the maternal and paternal grandmothers). A more equal parenting plan creates opportunities for both parents to follow through on their plans and address the protection concerns which is in the best interests of the child.

[48] Although the Father’s plan is a significant placement change, it addresses the needs of the child in the child’s best interests. It is proportional to the risk of harm and will hopefully set both parents up for success. It will further safely provide the Agency and the court with some ability to assess the parenting capacity of both parents and their ability to address the protection concerns.

Conclusion

[49] I strongly suggest that both parents accept the facts that both of them have made progress, but neither of them is perfect. Both of them are reliant on their extended families and other service providers and supports. Both of them have faced some challenges in their past. Both of these parents need to take some time to examine themselves before condemning each other.

[50] In my view, the events that have taken place since my Order was made on July 16, 2021 (amended December 13, 2021) are compelling circumstances that require a change to the placement and parenting schedule in the best interests of the child. The child was removed from the care of both parents. There is no longer any reason why the child should not commence residing with both the Mother in the residence of the maternal grandmother and with the Father in the residence of the paternal grandmother.

[51] I am satisfied with the evidence that it is in the child’s best interests to make an order to vary the temporary supervision Order of July 16, 2021 (amended December 13, 2021) to place the child in the care and custody of both parents under the supervision of the Agency and the maternal and paternal grandmothers on a week about basis. In my view, the change in circumstances has created enough risk of harm to the child to change the parenting structure and order the child be placed in both parents care equally. In addition, my order will provide the maternal grandmother with some opportunities for respite. Lastly, my order will provide the Agency with more opportunities to assess and monitor both parents parenting.

Order

[52] Pursuant to my reasons set out above, temporary Order to go varying my Order of July 16, 2021 and December 13, 2021 as follows:

(1) The child shall be placed in the primary care of both the Mother and the Father on a week about basis under the supervision of the Agency, pursuant to section 94(2) (b) and (c), 94(6), 94(9) of the Child, Youth and Family Services Act (2017) and subject to the following terms and conditions:

(a) Exchanges shall take place on Saturdays at Yorkdale Mall at 3:00 p.m., or such other time as agreed between the parties in writing.

The Mother will:

(b) The Mother shall ensure that she is not under the influence of alcohol or any illicit substance(s) at any time and while in a caregiving role. (c) The Mother shall reside at the maternal grandmother’s house and shall ensure that all contact information is up to date with the Agency and that any change in contact information be provided to the Agency within 24 hours of such change. (d) The Mother may have unsupervised parenting time with the child up to a maximum of 3 hours between the hours of 9:00 a.m. and 5:00 p.m. only for the purposes of transporting the child to and from childcare outside of the maternal grandmother’s home to participate in her school program and other programming and services (i.e., not for outings with the child unless there was prior notice and approval by the Agency). The Mother shall inform the Agency forthwith of any childcare arrangements put in place by the Mother. (e) The Mother and child shall otherwise be supervised 24/7 by the maternal grandmother with a maximum period of up to 4 hours unsupervised at the maternal grandmother’s residence, for the purpose of allowing the maternal grandmother to leave the residence and take care of her own day to day tasks and activities during hours of 9:00 a.m. and 5:00 p.m., and only while the mother and child are remaining at the maternal grandmother’s home. Any additional time will require advanced notice and approval by the Agency. (f) The Mother shall disclose to the Agency any programs and/or services she is currently involved with or plans to be involved with and shall sign consents to release information to DBCFS regarding her participation in such programs/services and shall consent to the release of any information respecting herself and her child and to the exchange of information between the Agency and community support programming as necessary. (g) The Mother and maternal grandmother shall allow the Agency and Guelph CAS access to the maternal grandmother’s home and to the child on an announced and unannounced basis. (h) The Mother shall maintain regular contact with the Agency worker(s) and Guelph CAS worker(s), as necessary, and shall attend scheduled appointments and circles as requested by the worker(s). (i) The Mother shall demonstrate knowledge and practice of childcare that offers a constructive, nurturing manner of integration, routine, structure, predictability, and safety within the home environment. (j) The Mother shall participate in substance use services including assessment(s) and programming if deemed appropriate and treatment by a service that has been informed of concerns by the Agency. (k) The Mother shall participate in mental health services including assessment(s), and programming if deemed appropriate and treatment by a service that has been informed of concerns by the Agency. (l) The Mother shall not expose the child to any domestic violence or conflict that could have a negative impact on the child’s wellbeing. (m) The Mother shall refrain from threatening or harassing behaviour towards the father, or the paternal grandmother. (n) The maternal grandmother shall report to DBCFS if at any time she becomes aware that the Mother is not following supervision terms and conditions, including any unauthorized time away from the home, any suspected drug use, if she is not following through with court ordered drug testing or if she tries to leave the home with the child for any unauthorized reason, or for longer than the permitted 3 hours, during the day. (o) Should the Mother be accepted into a new Mothering Home situation, this matter shall return to court on a motion on the issue of another change to this temporary order (regarding whether or not the mother will be authorized to move with the child to the new Mothering Home location).

The Father will:

(p) The father shall continue residing in the paternal grandmother's home and his parenting time with the child shall remain supervised by the Agency pursuant to the terms set out in the Agency’s Amended Amended Child Protection Application and adopted by Jain J.’s Order dated July 16, 2021.

(2) All remaining temporary orders to remain in effect.

[53] This matter shall return for a settlement conference as previously scheduled on March 11, 2022.

The Honourable Madam Justice Jain Date: February 22, 2022