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.

COURT FILE NO.: FC-20-87 DATE : 2022/01/07

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT , 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF: E.-L.H. (DOB: August 2016) BETWEEN:

Family and Children’s Services of Frontenac, Lennox and Addington Applicant – and – V.H. (Mother) – and – P.H.-W. (Father to E.-L.) – and – Z. P. (Father to Z.P.) – and – L.-L.H. (Paternal Grandmother)

Tina Tom for the Applicant Concillia Muonde for the Respondent, V.H. Steven Edgley for the Respondent, P.H-W. Ms. Marsland agent to Kim Pegg, counsel for Z.P. Ms. Danely agent for Cedric Nahum for the Respondent, L.-L.H. Vasu Naik counsel for the Kin Caregivers E.-L. and D.L. (not present) Ms. C., Child Protection Worker

Respondents

Heard: November 30, 2021 Perth

REASONS FOR DECISION

somji j.

Overview and position of the parties

[1] The Family and Children’s Services of Frontenac, Lennox and Addington Society (“Society”) brings an application to place the children E.-L., aged five, and her newborn sister, Z.P. aged four months, with the maternal grandfather R.H. Both children were taken from the mother and Mr. P.’s care on November 1, 2021, and placed in the care and custody of R.H. on a temporary, without prejudice basis, pursuant to an order by Justice Johnston on November 5, 2021. R.H came from Alberta to care for the children.

[2] The Society brings its application for a variation of temporary care and custody for E.-L. pursuant to s. 94(9) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“Act”) and brings its application for a temporary care and custody order for Z.P. pursuant to ss. 94(2) and (6) of the Act.

[3] The mother V.H. opposes the placement of the children with R.H. with whom she has an estranged and difficult relationship. She brings a motion to have the children returned to her care, or alternatively, to be placed in the care of kin caregivers D. and E.L (“L.’s). The L.’s had been caring for E.-L. for over a year before she was returned to the mother for a period of 21 days in October 2021. The mother argues that E.-L. thrived in the care of the L.’s, that they are willing and able to care for both E.-L. and her newborn Z.P., and that her own father R.H. is not a suitable caregiver for her children. She argues that it is in the bests interests of the children to be placed together in the care of the L.’s if the court declines to have them returned to her.

[4] P.H.-W. is the biological father of E.-L. He did not attend the proceedings due to the death of his own father. He has not engaged with the Society and has exercised limited access with E.-L. His counsel, Mr. Edgley, indicated at the hearing that he received a last minute text from his client indicating he could not be present and has no further instructions from his client.

[5] Mr. P. is the father of the newborn Z.P. and was recently made a party to the proceedings Given that his initials are the same as the child Z.P., he is referred to in this decision as Mr. P. Mr. P. has been in a relationship with the mother since June 2019. He became engaged with the Society given his relationship with the mother, his role as a co-parent to the older child E.-L., and because he and the mother had been expecting a child together (Z.P.). Following my motion decision of October 6, 2021, Mr. P. was residing with the mother and the two girls subject to certain conditions including following a safety plan in event of conflict within the home.

[6] The Society removed both girls from the mother’s care on November 1, 2021, because of adult conflict between Mr. P. and the mother. However, Mr. P. attributes the conflict to issues around the mother’s mental health and claims he followed the safety plan. Mr. P. has terminated his relationship with the mother. Mr. P. seeks to have his newborn placed with him. While Mr. P. is not the biological father of E.-L., he has been a co-parent to her for several years and intends to put forward a plan of care for both E.-L. and Z.P. to reside with him. At the time of the motion hearing on November 30, 2021, Mr. P. was in the process of obtaining accommodation to permit him to take custody of the girls. He supports the children being placed with the L.’s on a temporary, without prejudice, basis, until such time as he is able to obtain housing and care for them.

[7] The L.’s bring a motion to be added as parties to the proceedings and to have both children placed in their temporary care and custody. The L.’s are distantly related to E.-L. through the maternal side of her family. They also went to school with the maternal grandparents. They have been involved with this family since August 2020. They were approved as kin caregivers for E.-L. on August 19, 2020, and she was placed in their care on August 28, 2020. E.-L. was with them until the fall of 2021, at which time she was returned to the care of her mother. When the Society apprehended E.-L. on November 1, 2021, they did not return her to the L.’s but placed her instead with the grandfather R.H.

[8] The L.’s have been involved in family group conferences and are acquainted with the family dynamics. The L.’s have supported the mother’s rehabilitative journey and the return of E.-L. to her mother and Mr. P. However, they were taken aback that the Society did not return E.-L. to their care when the placement with the mother did not work out given they had been caring for E.-L. for 14 months and she thrived in their care. The L.’s acknowledge they were initially unclear with the Society if they could put forth a plan of care for a newborn. However, by November 3, 2021, two days after E.-L. was removed from her mother’s care, they emailed the child protection worker to indicate they would be willing to take both E.-L. and her newborn sister Z.P. into their care on a temporary, without prejudice basis. They also intend to put a long-term plan of care for both children.

[9] The paternal grandmother L.-L.H. is also party to the proceeding. She has maintained continuous access with E.-L. She seeks to continue her unsupervised access with E.-L. She also sought additional access time during the Christmas season. This issue is now moot and I have not addressed it. L.-L.H. has not had an issue with arranging access to E.-L. while the children have been with R.H.

[10] The issues to be decided on this motion are as follows:

1. Should E.-L. be placed in the temporary care and custody of R.H.?
2. Should Z.P. be placed in the temporary care and custody of R.H.?
3. What access, if any, should each of the parties have with E.-L. and Z.P.?
4. Should the L.’s be added as parties to these proceedings?

Procedural History

[11] Before addressing the substantive questions raised, it is important to set out the procedural history of this file and the circumstances leading to this motion.

[12] This motion was scheduled on an urgent basis on consent of the parties following my motion decision of October 6, 2021, and my supplementary endorsements of October 8 and 14, 2021. The purpose of this motion was to provide the parties with an opportunity to respond to fresh evidence filed by the Society that surfaced after the motion hearing of August 28, 2021, but before my motion decision of October 6, 2021.

[13] That fresh evidence concerned reports of adult conflict between Mr. P. and the mother. At the motion hearing on August 27, 2021, the Society argued there had been a material change in circumstances warranting a return of E.-L. to her mother and Mr. P. The maternal grandmother opposed the motion claiming there was continued adult conflict between the mother and Mr. P. as recent as July 26, 2021, which had not been adequately considered by the Society. The incident of July 26, 2021 was not specifically addressed by the Society. Nonetheless, I considered it and found that E.-L. could be returned to the care of her mother and Mr. P. provided certain conditions were in place to address any risk of harm. At that time, Mr. P. and the mother were expecting a baby. The plan was that E.-L. would be united with her mother, Mr. P. and her new baby sister.

[14] However, following the motion hearing on August 27, 2021, the Society filed a Reply dated September 10, 2021 (“Reply”) and an affidavit from CPW M.-K. dated September 9, 2021. In the Reply, the Society amended its position on the August 27 th motion claiming it was no longer seeking to return E.-L. to her mother because of additional reports of adult conflict. Rather, the Society wished to keep E.-L. with the kin caregivers the L.’s. The Society stated that the supporting affidavit of CPW M.-K. was sufficient to establish a material change in circumstances and a reversal of their position. The Society’s Reply states at paras 10 to 12:

10. The Society also respectfully submits that with the updated evidence there are now reasonable grounds to believe there is a risk that the child, E.-L. is likely to suffer harm if placed back into the Respondent Mother’s care at this time that cannot be adequately protected by a temporary supervision order.

11. As a result, the Society is agreeable to withdrawing its Notice of Motion dated July 30, 2021, including its request to vary the Respondent Paternal Grandmother’s access, and in the alternative respectfully requests that the Court dismiss the Society’s Notice of Motion.

12. The Society acknowledges the Respondents have not yet had an opportunity to respond to the updated information contained in the September 9, 2021, affidavit of J.M.-K. and that further argument and/or submissions may be required, including an opportunity for all Counsel to address the issue of the Respondent Grandmother’s ongoing access. The Society has purposely not included detailed submissions on this issue but instead only included the updated relief being sought.

[15] It is important to note that this Reply, which I find was effectively an amended application, and the fresh evidence in support of it, was not brought to my attention prior to my decision of October 6, 2021. I received the materials only after the release of my decision.

[16] Upon review of the Reply and fresh evidence, I reconvened a hearing of all the parties: Endorsement of Justice Somji, October 8, 2021. The Society advised at a further hearing on October 14, 2021, that notwithstanding they had reversed their position on the care of E.-L. in their Reply, they were not looking to alter my October 6 th decision returning E.-L. to her mother’s care. They reversed their decision again and requested that E.-L. remain in the temporary care and custody of the mother and Mr. P.

[17] Nonetheless, I found that due process required that all the parties have an opportunity to respond to the Society’s Reply and fresh evidence before I determined whether my decision of October 6, 2021, should stand or be revised. Consequently, a second motion was scheduled on an urgent basis for November 30, 2021, to provide each of the parties to respond to the Reply and fresh evidence.

[18] However, before the second motion was heard, new events arose. Following my decision of October 6, 2021, E.-L. was transitioned back to her mother’s care on October 11, 2021. However, both E.-L. and her newborn sister Z.P. were removed from the mother’s care on November 1, 2021. On November 5, 2021, Justice Johnston placed both children on a temporary, without prejudice, supervision order in the care and custody of R.H., subject to Society supervision. R.H. is not party to this proceeding. His interests are represented by the Society.

[19] My decision of October 6, 2021 concerned only whether E.-L. should be returned to the mother under a temporary supervision order and this follow-up motion was intended to address only that issue based on the fresh evidence that was not before me at the time of writing my decision. However, each of the parties have now brought different applications concerning not only E.-L. but the newborn Z.P. The parties are agreeable that I rule in this second motion on all the issues raised concerning the temporary care and custody of both children.

Evidence relied on for this motion

[20] In addition to the evidence considered in support of my decision of October 6, 2021, I have relied on the following factums and additional evidence filed in support of the second motion:

Society

1. Reply of the Society dated September 10, 2021
2. Notice of Motion of the Society dated November 4, 2021
3. Amended Protection Application November 4, 2021
4. Factum of the Society dated November 29, 2021
5. Confirmation of Motion dated November 25, 2021
6. Affidavit of child protection worker (“CPW”) J.M-K. dated September 9, 2021
7. Affidavit of CPW M. dated November 3, 2021
8. Affidavit of CPW C. dated November 4, 2021
9. Affidavit of CPW C. dated November 25, 2021

Mother

10. Notice of Motion dated November 22, 2021
11. Factum of the Respondent Mother dated November 29, 2021
12. Confirmation of Motion dated November 24, 2021
13. Affidavit of mother dated November 22, 2021.
14. Affidavit of kin caregiver D.L. dated November 21, 2021, Exhibit “A” to mother’s November 22, 2021 Affidavit.
15. Affidavit of mother’s sister J.H. dated November 18, 2021, Exhibit “B” to mother’s November 22, 2021 Affidavit.

Mr. P. (father to Z.P.)

16. Answer and Plan of Care of Mr. P. dated November 25, 2021
17. Confirmation of Motion dated November 25, 2021
18. Affidavit of Mr. P. dated November 24, 2021

The L.’s (previous kin caregivers to E.-L.)

19. Factum of the L.’s seeking party status dated November 30, 2021
20. Confirmation of Motion dated November 22, 2021

L.-L.H. (paternal grandmother to E.-L.)

21. Confirmation of motion of L.-L.H. dated November 24, 2021

Background Facts

[21] The factual background of these parties is set out in my decision of October 6, 2021, and I will not repeat it here. This decision should be read in conjunction with my earlier decision. Any new facts related to the parties since this motion was first heard on August 27, 2021, are set out in the analysis of the issues below.

Issue 1: Should E.-L. and Z.P. be placed in the temporary care and custody of the maternal grandfather R.H.?

[22] E.-L. was placed in the temporary care of her mother following the Society’s earlier application heard August 27, 2021, and my subsequent decision of October 6, 2021. The Society now applies to vary that order and place E.-L. in the temporary care and custody of her grandfather R.H. pursuant to s. 94(9) of the Act .

[23] The onus is on the moving party: s. 94 of the Act ; Catholic Children’s Aid Society of Toronto v R.M., 2017 ONCJ 784 at para 84 ; see also CAS of Simcoe v B. (B.J.) , [2005] O.J. No. 3907 at paras 31 to 33 .

[24] In determining whether to vary care and custody, the court must apply a two-part test. The court must first consider whether there has been a material change in circumstance since the temporary order was made which, in this case, is October 6, 2021. If I am satisfied that there has been a material change in circumstance, I must consider whether E.-L. is likely to suffer harm if she were to remain in the care of the mother and if she could be adequately protected by a supervision order. In doing so, I must keep at the forefront of the analysis the paramount purposes of the Act as set out in s. 1 : Catholic CAS of Toronto v R. M. 2017 ONCA 784 at para 84 .

[25] In Catholic CAS of Toronto v R.M. , Justice Sherr set out at para 69 the following non-exhaustive list of factors to be considered. While the decision was written in reference to s. 51(6) of the precedent legislation, the factors continue to apply under s. 94 of the Act :

1. 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. 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.

2. The degree to which the change in circumstances reduces or increases the risk of harm to the child.

3. 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 Child, Youth and Family Services Act , 2017 ( CYFSA ), which is in Schedule 1 to Bill 89.

4. The tiered considerations for temporary custody orders set out in section 51 of the Act that parallel other provisions of the Act that endeavor to keep the level of intervention proportionate to the child’s need;

5. 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 .

6. 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.

a. Has there been a material change in circumstances to warrant a change in E.-L.’s care and custody order?

[26] The Society takes the position that E.-L. is at risk of harm if she remains in the continued care of her mother and Mr. P. because of continued adult conflict within the home. In particular, the Society relies on incidents that resulted in police involvement on July 26, August 28, August 29, October 15, October 18, October 26, and November 1, and November 3, 2021. In addition, E.-L. made two disclosures on September 28 th and October 3, 2021, that her mother and Mr. P. were always fighting. These incidents and disclosures are discussed below.

[27] The incident of July 26, 2021 was addressed in my decision of October 6, 2021. It had been identified by the grandmother L.-L.H. The mother and Mr. P. got into a verbal argument, but both deny it was in the presence of E.-L. Mr. P. left the home to prevent the dispute from escalating and recruited the assistance of the police in retrieving his belongings. He remained away for a cooling off period. As I indicated in my decision of October 6, 2021, the incident demonstrated that the mother and Z.P. were able to follow the safety plan with Mr. P. exiting the home.

[28] The affidavits of the child protection workers do not provide any further information about what occurred during the incident. CPW M.-K. spoke to the police about the incident and requested the police report from that date, but nothing further has been filed and no further information has been provided. For this reason, I find that little, if any, weight can be placed on this incidents as grounds to warrant a variation of the care and custody.

[29] The second incident arose on August 28, 2021. Mr. P. himself brought this incident to the attention of the CPW M.-K. He reported that he and the mother had an encounter with the police over the weekend. He and the mother were outside discussing money by the front gate and the police happened to be in the neighbourhood and listened to their conversation. Mr. P. said no yelling took place and he left shortly after. He confirmed that E.-L. was at a sleepover at the time. CPW Malone-Knowles verified the incident with the police. The police informed her that they had “stumbled” upon a verbal argument between Mr. P. and the mother while riding through the neighbourhood. The mother had wanted money from Mr. P. from a phone he sold. The officer reported he witnessed yelling and swearing. Mr. P. eventually left with a friend, but was observed to return to the home. For how long and what purpose is unclear. The officer did not view any children present. No police report was filed.

[30] The third incident arose on the afternoon of August 29, 2021, around 5 pm. An officer reported that Mr. P. had been “running his mouth at one of the neighbours”. The neighbour was drunk and had come to the mother and Mr. P.’s house with a hammer and was banging on their door with it. Mr. P. came out and gave the neighbour a few blows to the face. Mr. P. told the officer he was trying to be protective because E.-L. was inside and they did not want her to see what was happening. The neighbour received a black eye, but no charges were laid.

[31] Following these incidents, CPWs M.-K. and C. advised the mother on September 9, 2021, that Mr. P. could no longer be in the home as it was “continued chaos and drama in around her home that was causing concern.” Both parents took issue with the Society’s position. Mr. P. was not pleased about having to leave the mother’s home while awaiting his baby to be born, but he agreed to do so. Ultimately, a plan was hatched to have a third party caregiver T.Y. stay in the home and monitor the situation. This would allow Mr. P. to remain in the home when his baby arrived. Z.P. was born on […], 2021.

[32] On September 28, 2021, CPW C. spoke to E.-L. who expressed that she wanted to return home to her mother and new baby sister. At the same time, E.-L. disclosed her mother and Mr. P. fight. She described it as “Loud voices, my mom screams at my dad”. She stated it was scary when they would fight and she would sometimes cry.

[33] Based on E.-L.’s report, CPW C. advised the mother and Mr. P. that she would be looking to amend custody to the kin caregivers. The mother began crying. She indicated she had made a referral to the Healthy Babies, Healthy Children program through the public health unit and had also connected with a weekly program at St. Mary’s home. She and Mr. P. were to begin attending St. Mary’s once Z.P. was six weeks old. Mr. P. was also upset at the CPW and said he was going to sue the Society. When he came back inside, he told the mother he had spoken to his counsel and she was not to say another word to either of the CPWs.

[34] On October 3, 2021, E.-L. disclosed to the L.’s following a weekend visit with her mother that Mr. P. swung Z.P. away from the mother. The police were sent to the home to follow up, but did not identify and concerns. T.Y., who was living with the parents at the time, also expressed no concerns for the children. CPW M. followed up with the mother, Mr. P. and T.Y. while they agreed there had been some arguing, there was no indication of any violence. In fact, the mother and T.Y. had left the home to give Mr. P. some space and went to stay in Kingston at T.Y.’s home. CPW M. also met with E.-L. on October 5 th to obtain more information. She said that her mother and Mr. P. were fighting and that she wished they would stop fighting. She explained that Z.P. was in a car seat that Mr. P. was swinging. E.-L. reported that her mother had told her to close her mouth and not tell anyone about fighting in the home. The mother takes issue with E.-L.’s characterization of what she told her it. The mother also confirmed that Mr. P. had been swinging Z.P. in her car seat to soothe her and had done nothing inappropriate.

[35] On October 6, 2021, I released my decision on the motion heard August 27, 2021, and granted the request to return of E.-L. to her mother. As already indicated, the above police reports and two disclosures by E.-L. of adult conflict were not known to me at the time of my decision.

[36] Shortly after my decision of October 6, 2021, R.H. contacted the Society. He proposed that the mother, Mr. P. and the children should come out to reside with him in Alberta. R.H. later stated that the mother contacted him to say she wanted Mr. P. out of the home.

[37] In around October 14 th and 15 th , Mr. P. informed CPW M. that he had concerns about the mother’s mental health. He also told the mother that he would be seeking custody of Z.P. CPW M. was present for this conversation. Following the conversation, however, someone called the police. The police indicated both parents and T.Y., the caregiver, were all calm. It was unclear who called the police and why.

[38] On October 18, 2021, the police were called again to the home. The mother alleged that Mr. P. was using drugs and she had kicked him out of the home. T.Y. followed the safety plan and removed the children from the home. Mr. P. reported he had been physically assaulted by the mother, but no witnesses confirmed the allegation. The mother reported that when she returned home later that day, Mr. P. had let the dog out who made a mess in the unit. She claimed, Mr. P. had been disconnecting her phone. She told CPW C .she wanted to move to Alberta with her father but was not sure she would be allowed by the court or the biological fathers of her children. She reiterated her wish to move to Alberta with the children and reside with her father again on October 26 th to CPW M.

[39] On October 19 th , the mother and Mr. P. agreed to part ways recognizing their relationship was toxic and the girls deserved better. Mr. P. was not happy about leaving the home and noted that he paid the bills. He was frustrated that he had to leave each time the mother wanted him out. Mr. P. denied drug use and stated he provided the mother with a urine test when she accused him.

[40] There was an additional incident between the parents on October 26, 2021. The mother claimed Mr. P. was upset with her for not changing her status on Facebook and spit in her face. The mother was scared to have Mr. P. charged claiming he was trying to blame her for his black eye. The no contact condition between the two parents was reinstituted. However, not long after, the mother was looking to change it again to allow for Mr. P. to access the children. On that same day, a neighbour reported fighting between Mr. P. and the mother. The caller was worried about the wellbeing of the children and said the mother has a bipolar disorder. The caller reported that the mother had given Mr. P a black eye. Another anonymous caller phoned the Society on October 27 reporting concerns about the children being exposed to conflict due to the mother’s mental health. The caller said that the mother is constantly assaulting Mr. P. and that she was also worried about the care of the children. She stated the mother smokes her bong all day.

[41] CPW M. spoke to a neighbour who indicated that the mother and Mr. P. have a toxic relationship and that they could hear Mr. P. yelling. On one occasions, the neighbour brought the children over to her place. Mr. P. had come to the house yelling that he wanted to say goodbye to his kids.

[42] On October 30 th , the police were called to the residence where Mr. P. was stating. The resident indicated the Mr. P. was distraught and talked about ending his own life. He expressed feeling stressed by his on and off relationship with the mother and being able to see and not see his children. He was taken to the hospital, but later released.

[43] A final incident occurred between October 31 st and November 1, 2021, when the police were called. The mother threw a mug of hot chocolate or coffee on Mr. P. This incident was witnessed by E.-L. Mr. P. also reported to CPW M. and the police an assault by the mother on him on October 26 th when the mother became upset because he had asked her to feed Z.P. She kicked him out of the house and punched him in the head in the presence of Z.P. Mr. P. also described an incident in December 2020, where the mother ripped the inside panel off a car and hit Mr. P. with it while driving. The mother then took a container of body mist and caused marks on herself stating she would tell the police Mr. P. caused the marks. Mr. P. told the officer that the mother has told him that he is not to be around their child unless she agrees. The mother was subsequently charged with two counts of assault, assault with a weapon, and failure to comply by not keeping the peace. The mother also has conditions not to communicate with Mr. P.

[44] On November 1, 2021, the Society apprehended both children on the grounds of continued adult conflict in the home and the inability of the parents to follow conditions of their supervision order. The children were placed in the care of the mother’s father, R.H., who took an overnight flight from Alberta to Ontario. Although the mother was the one who had initially contacted her father, the mother is not agreeable to her father having care of her children.

[45] Finally, on November 3, 2021, the police reported that a gunshot had been fired from the mother’s backstep around 3:30 am into the car of a woman who lived behind her. The vehicle belonged to a woman with whom Mr. P. was residing when the mother asked him to exit the residence. The police also reported that known crystal meth drug users had attended the mothers’ home during the past week. No police report has been filed.

[46] Courts are to take a flexible approach in determining what constitutes a sufficiently material change in the circumstances. What is sufficiently material depends on the circumstances of each case: Catholic CAS of Toronto v R. M. at para 84 . I find there is sufficient evidence demonstrating continued adult conflict and violence between the mother and Mr. P. that constitutes a material change in circumstances warranting a variation of the temporary.

[47] I find that the cumulative incidents of adult conflict requiring police involvement and the reports of E.-L. of her observations of fighting constitutes a material change in circumstances requiring a variation of the children’s placement from their mother’s care. The incidents described above are taken largely from the affidavits of the CPWs. I appreciate that the mother and Mr. P. contest some of the facts reported by the CPWs. In the absence of the police reports and without further credibility findings, I am not in a position to determine what exactly transpired during each of these incidents. Nonetheless, I am satisfied these incidents involved heated arguments in and in some instances physical violence that are not conducive to the well-being of the children in the home. Furthermore, E.-L. continues to report ongoing fighting between the mother and Mr. P. which has caused her great discomfort. It is clear that the mother and Mr. P. are not able to reside together without conflict and the children are at substantial risk of harm from witnessing continued adult conflict should they remain with the mother and Mr. P. together. The Society has met its onus in establishing that there has been a material change in circumstances. The issue which arises, however, is whether either the mother or Mr. P. are able to individually parent E.-L. under a supervision order that would minimize any risk of harm to either child.

b. Is E.-L. likely to suffer harm if placed in the care of the mother and if so, can she be adequately protected by a supervision order?

[48] The second prong of the test for variation of a temporary care and custody order is whether there are reasonable grounds to believe there is a risk that the child is likely to suffer harm and whether the child cannot be protected by a supervision order: Catholic CAS of Toronto v R.M. at para 84 ; see also Children’s Aid Society of Simcoe v B. (B.J.) , [2005] O.J. No. 3907 at para 33 .

[49] The court is to take a flexible and contextual approach, keeping in mind the purposes of the legislation: Catholic CAS of Toronto v R.M. at para 57. The paramount purpose of the Act is to promote the best interests of the child, but consideration must also be given to the other purposes set out in s. 2 of the Act. There is a presumption in favor of returning the child to a parent’s care unless there is a risk that the child is likely to suffer harm and cannot be protected by way of a supervision order, but this must be considered in the context of the child’s best interests: Children’s Aid Society of Toronto v L.L., [2003] O.J. No. 3281 at para 33 .

[50] Section 74(3) of the Act lists the factors to be considered in determining the best interests of the children as follows:

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 Metis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Metis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition the considerations under clauses (a) and (c); and consider any other circumstance of the case that he person considers relevant, including,

c) consider any other circumstances 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.

CYFSA , supra, s. 74(3) .

[51] The mother has brought an application to have E.-L. and Z.P. returned to her care without the presence of Mr. P. She argues that she followed through on programing and counselling recommended by the Society when E.-L. was first taken away from her in 2020. She has worked cooperatively with the Society and her support network. She diligently followed the safety plan when adult conflict arose. She argues that the birth of Z.P. brought new challenges for her and Mr. P. as parents and that she was also dealing with post-partum depression. She indicates that because she was breastfeeding, she had refrained from taking medication for her mental health and intended to resume medication once Z.P. was weaned to formula. She believes that she is able to care for both E.-L. and Z.P. on her own and under a supervision order with terms and conditions restricting Mr. P.’s contact with her.

[52] During the motion hearing, I queried the Society as to whether the children could continue to remain in the mother’s care if Mr. P. was absent given the only child protection concern identified with either parent was adult conflict. Counsel for the Society advised that they have been working for the mother on and off since 2016 and despite repeated interventions, the mother is not able to parent E.-L. without entangling herself in an adult relationship exposed E.-L. to adult conflict. In short, the Society does not presently support the return of the children to the mother.

[53] As noted in my decision of October 6, 2021, the mother had made considerable progress in her rehabilitation throughout 2020 and up to the summer of 2021. The mother had taken programming to address issues of addiction, mental health and domestic violence. She has better insight into managing conflict. She has learned to prioritize E.-L.’s needs and is better able to engage with her, something that was witnessed by members of her support network including the L’s. She had stable employment. The mother cooperated with the Society and engaged with her support network to develop a safety plan to support herself upon the return of E.-L. to her care and when her new child would be born. Even after Z.P.’s birth, the mother engaged services through the public health unit and St. Mary’s home. She expressed her desire for support to the CPWs and her own father indicating she is self-aware of her need for support in raising the children.

[54] Unfortunately, the mother has also suffered considerable setbacks since the birth of Z.P. There has been continued adult conflict with Mr. P. including instances of alleged violence by her upon Mr. P. There was a report of a shooting from her home. Concerns have been raised about her mental health by Mr. P. The mother herself has acknowledged that she has stopped taking medication and could be suffering from post-partum depression. In addition, on November 5, 2021, the mother asked CPW C. about a possible referral to the Royal Ottawa Mental Health Hospital. When asked what is was for, she replied it was for her mental health. She was advised to speak with her family physician at a follow-up appointment scheduled on November 10, 2021. For these reasons, despite the mother’s strong rehabilitative efforts, I find there are reasonable grounds to believe there is a risk that E.-L. is likely to suffer harm if placed with her mother at this time and that risk cannot be protected by a supervision order.

[55] This is not to say that residency with the mother is forever foreclosed. Other than exposure to adult conflict, the Society has not identified any other child protection concerns. No issues have been identified with the mother’s ability to care for E.-L. or to meet her emotional, mental, educational, health, or physical needs. On the contrary, the affidavit evidence filed indicates the mother is highly attentive to both her children’s health and welfare. The mother was very concerned R.H. was not bathing the children or properly sterilizing Z.P.’s bottles. I also note the comments of Mr. P. who states she has the capability to be a good mother to both the girls, but only once she has been able to make improvements to her mental health.

[56] In coming to the decision that E.-L. remains at risk of harm if placed with the mother, I have considered E.-L. wishes, a significant factor in assessing a child’s bests interests. The affidavit evidence in this case indicates that E.-L. has a very strong bond with her mother. Despite all the adult conflict she has witnessed, E.-L.’s consistent wish is to reside with her mother. E.-L. expressed this wish most recently in a private interview with CPW C. on November 18, 2021. The following excerpt from para 36 of the affidavit of CPW C. dated November 4, 2021, is telling:

…E.-L. stated she liked living with Grandpa but wants to live with her mommy. E.-L. asked if I had told mommy not to live with [Mr. P] so she could live with her. I told her that her mommy knew what the worries were. E.-L. said “why isn’t she listening?”

[57] E.-L.’s biological father, P.H.-W. is not an option. As per my decision of October 6, 2021, P.H.-W.’s involvement and contact with E.-L. has been very limited. I ordered that P.W.-W. could have access to E.-L. at the discretion of the Society and on certain terms and conditions. On November 8, 2021, P.H.-W. contacted the CPW C. requesting to see E.-L. It was the first time speaking to the CPW in over a year. PH.-W. informed her that he would not do any programming recommended by the Society and was effectively unwilling to cooperate with the Society. He has also not provided any instructions to his own counsel on the future care of E.-L.

[58] Mr. P. has proposed having care and custody of both E.-L. and his own newborn Z.P. He has been a co-parent to E.-L. since the start of his relationship with the mother. Other than the exposure to adult conflict, there have been no issues identified with his ability to parent E.-L. As per my October 6 th decision, Mr. P. has cooperated with the Society, undertaken programing and counselling throughout 2020 and 2021, participated in the family group conferences, and developed a safety plan which it appears he followed having exited the home on numerous occasions this fall when conflict with the mother arose. He has also developed a support network.

[59] I find that Mr. P. could potentially be a caregiver to E.-L. except that E.-L. has mixed feelings for Mr. P. Earlier in the fall of 2021, E.-L. drew a picture placing her mother and Mr. P. in the same house and stating they both made her happy. On November 18, 2021, she told CPW C. that her mother and Mr. P. were fighting a lot, that she didn’t want her sister to get hurt or killed by Mr. P. and that Mr. P. was a bad man. While I am cautious that there may be a lot of influences provoking E.-L.’s comments, including a strong desire to be with her mother, I find that under the present circumstances, it would not be in E.-L.’s bests interests to be placed with Mr. P.

[60] The Society takes the position that it is in E.-L. best interests to reside with her grandfather R.H. The mother wishes for E.-L. to be returned to the L.’s who were caring for her earlier. She explains that while she did seek out her father’s support in raising the children, and it appears that she was even prepared to move to Alberta to be with him, the plan to have her father involved was only as a support to her if she was to be raising the children on her own. She had never intended that her father would raise her children alone and is not confident in his ability to do so.

[61] Despite R.H.’s good intentions in flying to Ontario to help support his daughter’s family, I do not find that it is in the best interests to place E.-L. in his care. R.H. was not assessed by the Society prior to his arrival in Ottawa, but is being assessed now. During the motion hearing I queried how R.H. came to be suddenly involved in this matter. The Society stated that R.H. has been involved with these child protection proceedings for some time including participation in previous meetings. However, there is nothing in the materials provided by the Society about R.H.’s background generally, his historical involvement, or his suitability to parent these young children including a newborn. Furthermore, R.H. did not file an affidavit nor provide any information about his plan of care – short or long term – for these children. While his arrival in Ontario was on short-notice, R.H. had the children in his care for over 25 days by the time of the motion hearing. Most of the information about his parenting ability comes from the other parties, and unfortunately, is largely negative.

[62] The Society submits at paragraph 60 of its factum that “taking into consideration all the evidence and the best interest factors, that both children should remain in the temporary care and custody of [R.H.] pending the completion of the full kin assessment, and that another change in placement at this time is not in either child’s best interests.” However, the Society provides no analysis of how the best interest factors warrant E.-L.’s placement with R.H. nor do the supporting affidavits address many of the concerns raised by the parties about R.H.’s parenting abilities. The Society did not assess R.H. before placing the children in his care. The Society and appear to have taken a leap of faith in his ability to care for these children with limited consultation, if any, with other members of the family support network.

[63] Multiple concerns have been raised by the parties about the short and long-term placement of the children with R.H. First, R.H. did not have any housing upon his arrival in Ontario. Fortunately, he was taken in by his other daughter J.H. This arrangement did not work out. E.-L. was then moved from her aunt’s home to her cousin’s home while R.H. continues to seek housing. E.-L. deserves a stable home.

[64] Second, J.H. reports in her affidavit that while at her home, R.H. was not adequately caring for the children. J.H. and her spouse were preparing the meals, bathing the children, and providing much of the children’s basic needs.

[65] Third, J.H. reports that she observed R.H. swear and yell in front of the children, particularly if conversations around contact with other people in the children’s support network were raised.

[66] Fourth, it has been suggested that R.H. has a criminal history. The Society has not completed his assessment to verify this information. The L.’s report that R.H. had started an assessment by an agency in Alberta but withdrew before the assessment could be completed. Both of R.H.’s daughters – the mother and her sister J.H. – report that their own upbringing with R.H. was fraught with exposure to conflict, heavy drinking, and physical violence they witnessed by R.H. on their own mother. J.H. states she reported all her concerns to CPW C. on November 10, 2021. It is unclear what steps, if any, the CPWs took to verify these concerns.

[67] Fifth, there are reports that upon placement with R.H., E.-L. began acting up at school. On November 24, 2021, she was reported to be pulling hair and masks of other classmates as well as stealing from them. It is reported that E.L got up from her desk and put another child in a headlock. E.-L.’s own views about her grandfather are mixed. On November 18, 2021, she reported to CPW C. that she felt “unsafe” with her grandfather. In the same interview, she told CPW C. that she “liked living with Grandpa but wants to live with her mommy.”

[68] Finally, by placing E.-L. with R.H., there is a risk that E.-L. will be exposed to further adult conflict around issues of access. Concerns have been raised by the mother, Mr. P. and the L.’s that R.H. is not cooperating with access to E.-L. The mother fears that if she raises issues with R.H. about the manner in which he is caring for her children, he will retaliate by limiting her access. Mr. P is concerned he will be shut out altogether. The L’s report that R.H. has refused to facilitate any contact between them and E.-L. since she was placed with him. The L.’s indicate that they sent a text to the maternal grandmother who had at one point facilitated FaceTime between the L.’s and E.-L. R.H. responded by telling the grandmother he would stop her visits or only allow supervised visits if she continued to permit contact with the L.’s.

[69] For all these reasons, I find that the Society has not established that it is in the best interests of E.-L. to be placed with R.H.

[70] The mother has brought a motion to have E.-L. and Z.P. placed with the L’s if they cannot be placed with her. The Society states it did not consider the L.’s as potential caregivers at the time of apprehension on November 1, 2021, because the L.’s had previously been unsure of their ability to care for a newborn and they wanted to keep the girls together.

[71] The L.’s were always prepared to present a permanent plan for E.-L. even before her removal on November 1 st from the mother’s care. They were cognizant of the fact that the Society would want to tie E.-L.’s permanent plan with Z.P.’s plan, but were initially unsure if they could meet the needs of an infant. However, when both girls were apprehended on November 1, they quickly reconsidered their position. The L.’s emailed CPW C. on November 3, 2021, two days after the apprehension, indicating that they were prepared to take both girls until such times as R.H. could sort things out and find a place to live in Ontario. They were supportive of R.H. but noted that E.-L. had been through a lot and wished for her to have some stability while the grandfather put things in place. They also acknowledged E.-L.’s relationship with her sister was an important one and that her plan may be tied to her sister’s. Concerned that the Society had misunderstood their intention was only to offer a temporary place for the girls, the L.’s followed up with CPW C. again on November 10 th indicating they would be willing to put forward a long-term plan for both E.-L. and Z.P. At that point, they did not agree with the plan to place the children with R.H. as a permanent caregiver.

[72] I find it is in the best interests of E.-L. to be placed in the temporary care and custody of the L.’s. The L.’s are distantly related to the mother. E.-L. was in their care for over 14 months. They have been previously approved as caregivers for E.-L. Placement with the L.’s provides continuity of care for E.-L.: s. 74(3) (c)(vii).

[73] The L.’s have a short and long-term plan for E.-L. and are able to meet her physical, mental and emotional needs: s. 74(3)(c)(i). They are able to provide E.-L. a stable home on their farm where she has lived in the past and thrived. They are able to arrange for her to continue going to the same school where she was previously attending. The L.’s have a support network both within and outside their home to assist in E.-L.’s care. Their adult daughter lives with them and has assisted in E.-L.’s care in the past and can continue to do so in the future. They also have a babysitter D.K. within the community who has care for E.-L. in the past when they were working and is agreeable to assisting going forward. D.K. is a babysitter is someone who cares for E.-L. and whom E.-L. knows. D.K. became part of E.-L.’s plan and participated in the family group conferences. The L’s are also willing to explore options to permit them to take leave from work and make adjustments to their work schedule on the farm to accommodate for E.-L.’s needs.

[74] E.-L. has been prone to emotional tantrums in the past. During her stay with the L.’s, they learned to manage her behavioral issues and it is reported that her behaviour improved. E.-L. has a doctor in Carleton Place. The L.’s are able to make a referral for counselling with Children’s Mental Health which I would agree would be of significant benefit to E.-L. given her exposure to adult conflict and her recent behaviours in school. E.-L. is also comfortable enough with the L’s to disclose to them her own fears. E.-L. made disclosures to the L.’s about conflict within the home this past fall and the L.’s responded appropriately by contacting the Society’s After Hours department. I find the L.’s are cognizant of the E.-L. mental and emotional development and have developed a plan to support her development: s. 74(3) (c)(ii).

[75] The L.’s can also be trusted to follow conditions of a court order. While E.-L. was with them, there were no issues with the quality of their cooperation with the Society. This is evident in the fact that when the Society filed its Reply on September 10, 2021, reversing its position on allowing E.-L. to return to the mother, their request was for E.-L. to remain with the L.’s. The L.’s are both knowledgeable and sensitive to the family dynamics and have been fully engaged in the meetings involving the family network. The L.’s have been supportive of the mother and Mr. P.’s rehabilitation and relationship with E.-L. The worked with the Society to facilitate visits with the mother including gradually transitioning E.-L. to overnight visits with her mother in the summer of 2021. I have confidence that they will continue to respect access orders and in a manner that minimizes further adult conflict. A party’s ability to protect the child from adult conflict is an important best interests’ consideration: Catholic Children’s Aid Society of Toronto v. C.P.I., 2021 ONCJ 575 at para 35 . Both the mother and Mr. P. support E.-L. being placed with the L.’s if she cannot be with either of them which indicates their trust in them as caregivers.

[76] In coming to the decision that it is in E.-L.’s best interest to be placed in the care and custody of the L.’s, I am mindful that this will necessitate yet another move for E.-L. Since October 2021, E.-L. has moved from the L.’s to her mother’s place, then to her aunt’s J.H.’s place under the care of R.H., then to the residence of cousins under the care of R.H., and will now be returning back to the L.’s farm. However, I find that the stability and continuity of care that the L.’s can provide outweighs any adverse effect of another move. In addition, the move to L.’s is to a place with which E.-L. is already familiar.

[77] Finally, one of the factors to consider on an application to vary a temporary order is the pending trial date. E.-L. has been in Society care since May 2020 and at the time of the motion hearing on November 30, 2021, a trial date was scheduled within two months in January 2022. If a matter is to proceed to trial imminently, a motion judge must determine if the evidence of a change in circumstances is strong enough to warrant a change of placement so close to trial where there will be a full testing of the evidence and which may result in a different outcome, placement, and potentially further disruption to a child: Catholic CAS of Toronto v RM at paragraph 69. This issue did concern me. However, I have now been advised that the trial dates were vacated and E.-L.’s trial is further postponed.

[78] There will be an order that E.-L. will be placed in the temporary care and custody of the L’s pursuant to s. 94(9) of the Act subject to Society supervision for a period of 6 months. Terms and conditions are addressed further below.

Issue 2: Should Z.P. be placed in the temporary care and custody of R.H.

a. Is Z.P. at risk of harm if she remains in the care of the mother and Mr. P.?

[1] Z.P. was born in […] 2021, and remained in her mother and Mr. P.’s care until the Society’s intervention on November 1, 2021. At the time of the apprehension, the mother and Mr. P., the biological father to Z.P. were living together. The Society’s intervened for the same reasons described above which were related to the children’s exposure to adult conflict. The Society materials do not suggest any other inadequacies in the parenting abilities of the mother and Mr. P. in the care of Z.P.

[79] The Society brings an application to have Z.P. placed in the temporary care and custody of the grandfather R.H. pursuant to ss. 94(2) and 94(6) of the Act . The mother brings an application to have Z.P. placed in her care subject to a supervision order or alternatively in the care of the L.’s. Mr. P seeks to have Z.P. placed in his care under a supervision order.

[80] Section 94(2) of the Act states as follows:

Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

[81] At a temporary care and custody hearing, the onus is on the Society first, to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that she will suffer harm; and second, to establish that Z.P. cannot be adequately protected by terms of conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T. , [2000] O.J. No. 2273 (Ont. Sup. Ct.) at para 10 ; CAST v. L.P. 2010 ONCJ 320 at para 16 .

[82] The first part of this two-part test only has to be met against one of two parents who had charge of the child. Either will do. It is a low threshold. Children’s Aid Society of Algoma v. S.M.M., 2014 ONCJ 12 at para 5 .

[83] In this case, I find that both the mother and Mr. P. had charge of Z.P. from the time of her birth. There was a care and custody order in relation to E.-L. in which Mr. P. was subject to certain terms and conditions, including exiting the home in the event of adult conflict. However, there was no court order in relation to Z.P. as she was not yet born. Both parents had care of Z.P.

[84] I find that there is a substantial risk of harm if Z.P. were to remain in the care of the mother and Mr. P. together because of the potential for exposure to continued adult conflict. Following Z.P.’s birth, there have been six reports of adult conflict requiring police intervention as described above. There is also evidence that the mother and Z.P. have a pattern of domestic violence while having care of another child E.-L. Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to children. Children's Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ) at paras 27 to 29 . Furthermore, concerns have been raised about the mother’s mental health. She has now been charged with assault on Mr. P. On this basis, I find there are reasonable grounds to believe that there is a substantial risk of harm to Z.P. from exposure to adult conflict if she returned to the reside with the respondent parents together.

b. Can Z.P. be adequately protected by the terms of a supervision order?

[85] The second part of the test requires consideration of whether Z.P. could be adequately protected by the terms of a supervision order. In making a determination under s. 94(2) , a court must choose the order that is the least disruptive placement consistent with adequate protection of the child and placement with a person other than a parent who had charge of the child should only be ordered if the child cannot be protected if returned to that person, with or without supervision: ss.1 (2) of the Act ; see also Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448 at paras 29 and 30 .

[86] In this case, the mother and Mr. P. have parted ways. Each seeks a return of Z.P. to their care subject to a supervision order. Each parent also intends to present a permanent plan for the care of Z.P. The court’s role at this stage is to determine whether it is in the best interests of Z.P. to be placed in the care of either parent subject to a supervision order that would adequately protect Z.P. from any risk of harm.

[87] I find that Z.P. cannot be returned to her mother’s care alone under a supervision order. I rely on the same reasons described above for denying E.-L.’s placement with the mother. Despite the mother’s rehabilitative progress throughout 2020 and part of 2021, the mother has suffered serious setbacks since the birth of Z.P. Whether the mother’s present mental health is the result of post-partum depression, having stopped medicating herself because of breastfeeding, or because of an innate inability to refrain from adult conflict as the Society suggests, remains to be determined. I find that Z.P. would remain at risk of harm if presently placed with the mother and I am not satisfied that risk could be mitigated by way of a supervision order.

[88] On the other hand, I find that the Society has not discharged its onus on establishing that Z.P. would be at risk if left with Mr. P. alone. The Society takes the view that the mother has not been able to demonstrate over many years that she can refrain from adult relationships without conflict and has repeatedly exposed E.-L. to her adult conflicts. The Society’s history with the mother dates back to 2016. This is not the case with Mr. P. His history with the Society has been limited to his time with the mother. His adult conflicts relate only to the mother. While it is abundantly clear that he has yelled and screamed during these episodes of conflict, I am not satisfied that he would be unable to refrain from such behaviour or limit Z.P.’s exposure to such conflict if he was not in a relationship with or in the presence of the mother.

[89] The evidence shows that Mr. P. has been highly cooperative with the Society and has complied with the terms and conditions imposed in preparation of his return to the mother’s home in the fall of 2021 and the birth of Z.P. As stated in my decision of October 6, 2021, successfully completed the New Directions program, connected with St. Mary’s home. He is now scheduled to start the Caring Dad’s program on January 22, 2022.

[90] Mr. P. participated in the family group conferences and has developed a network of support. He has identified in his plan of care specific people who can assist him child care, emergencies, and general support. He is on EI having taken parental leave for Z.P. and is presently able to care for Z.P. full time at home. Mr. P is starting an investment business. Mr. P traditionally works as a concrete foreman and if and when he resumes work following his parental leave, he will consider finding childcare.

[91] Perhaps most importantly, Mr. P. has consistently demonstrated throughout the conflicts with the mother in the fall of 2021 that he is able to follow the safety plan and exit the home when conflict escalates. He did this even when frustrated that it was he who had to leave the home while the mother remained with the newborn. On two occasions, Mr. P. engaged the police to help him retrieve his belongings to prevent further escalation of conflict. For these reasons, I am satisfied that Mr. P would be able to abide by the terms and conditions of a supervision order.

[92] I am mindful that Mr. P. has at times verbally lashed out at the CPWs and has called or texted them persistently. However, I find these instances were largely precipitated by Mr. P’s frustration with the Society and the prospect of not being able to father Z.P. Despite all his efforts at rehabilitation in an effort to be a father to E.-L. and his newborn, Mr. P. has found himself one, having to leave the home without the children even though it is not clear he instigated the conflict and in some instances it was he who was assaulted by the mother; two, frustrated that his access with Z.P. has been considerably less than that granted to the mother and not within a home setting; and three, being told by the CPWs that the children are being considered for kin placement without any consideration or discussion about whether he could have an opportunity to father the children independent of the mother, particularly his own biological child Z.P.

[93] I am also satisfied that Mr. P. is able to meet Z.P.’s emotional, mental, and physical needs: 74(3)(c)(i). T.Y. was residing with the family after Z.P.’s birth and did not identify any concerns with Mr. P’s parenting. In fact, outside of the adult conflict, T.Y. spoke positively about how the family was doing during the time she was residing there. She indicated that Mr. P. was getting up at night to support the newborn so as to allow the mother to sleep. On November 18 th when one of the Society workers A.H. visited the mother and Mr. P., she noted that even though Mr. P. was upset and emotional with events in the house, he was sure to meet Z.P.’s needs by feeding her, burping her, and changing her diaper. Mr. P. has attended his access visits with Z.P. and they have been reported to be positive. There were no issues identified with Mr. P’s parenting abilities. There is nothing in CPW C. or M.’s affidavits about any lack of parenting skills on the part of Mr. P. Furthermore, Mr. P also agreed to sign new consent forms indicative of his continued cooperation with the Society.

[94] While there have been allegations of recent drug use, those allegations are from the mother and have not been verified. Mr. P. undertook a urine analysis test when the mother accused him of drug use to demonstrate he was clean. T.Y. who was living with the parents did not indicate any drug use on the part of Mr. P.

[95] The only obstacle at the time of the motion hearing of November 30, 2021, was that Mr. P. was in search of adequate housing for him and the children. Provided that Mr. P. has found suitable housing, I find that it is in the best interests of Z.P. to be placed in the care and custody of her father Mr. P. I find the Society has not met its onus on in establishing that the risk of harm to Z.P. identified in this case, namely exposure to adult conflict, cannot be addressed by way of a supervision order with reasonable terms and conditions.

[96] Finally, I am mindful that in placing Z.P. in the care of her father, Z.P. will be separated from her sister E.-L. Maintaining a 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 is one of the factors to be considered in assessing a child’s best interests: s. 74(3) (c)(vi). While I understand that the Society has been focused and well-intended in its plan to keep both the girls together, I am not satisfied that this factor trumps all other considerations. It is equally important, if not more so, for a child to have the opportunity to develop a positive relationship with a parent and a secure place as a member of a family: s. 74(3) (c)(v). This is particularly so during a child’s tender years when the child is developing its first emotional bonds.

[97] In addition, there is a considerable age gap between E.-L. who is five years old and Z.P. who is not even five months old. Each child has very different immediate needs. They also have different biological fathers. While ideally it would be beneficial to have both girls in one home, it is not a paramount consideration. There are many instances in which siblings are required to live separate and apart for short or indefinite periods because of the family circumstances. Each case must be decided on its own facts. This also does not mean that children cannot spend time together and have the opportunity to develop a sibling bond. I am satisfied that both the L.’s and Mr. P. will ensure the two girls have time together. There will also be a condition of the order requiring the children to have access to each other for a minimum number of hours per week.

[98] Pursuant to s. 94(2) (b), there will be an order that Z.P. will be returned to the care and custody of Mr. P. subject to the Society’s supervision for a period of six months. Terms and conditions are addressed further below.

[99] If Mr. P. has not located suitable housing and is not in a position to care for Z.P. within seven days of this decision, the matter should be returned before me for further submissions on the temporary placement of Z.P. For the same reasons indicated earlier with respect to E.-L., I am not satisfied that it is in the best interests of Z.P. to be in the care and custody of R.H. The Society states it opposes the placement of Z.P. in the care of the L.’s because they have not been assessed and approved as caregivers for an infant. While I do not find this reasoning persuasive and note that R.H. was neither assessed nor approved as a caregiver before both children were placed with him, I will provide the Society and parties a further opportunity to make submissions on the temporary placement of Z.P. in the event Mr. P. is not able to secure housing to care for her.

Issue 3: What access, if any, should each of the parties receive for E.-L. and Z.P. and under what conditions?

a. Conditions and Access for the mother

[100] The Society is supportive of continued access by the mother to both children. There will be an order that the mother have access to E.-L. and Z.P. either alone or together at the discretion of the Society and for a minimum of three visits and eight hours per week. Those visits may occur in the home of the mother if approved by the Society.

[101] To minimize conflict, access arrangements will be communicated through the Society. Pickups and drop offs will be arranged by the Society to minimize conflict. The L.’s and Mr. P. shall cooperate with the Society to facilitate the mother’s access.

[102] It is not the court’s intention to make the mother feel shut out from her children. It is only natural the mother will want to communicate with both the L.’s and Mr. P. about matters concerning the children’s health, welfare, education, or to simply celebrate milestones in their lives. However, to minimize conflict between Mr. P. and the mother, their communications will be only in the presence of a third party. This may include a third party who participates on a Zoom or telephone call or is physically present if the parties were to meet.

[103] To be abundantly clear, there will be an order that there shall be no contact between Mr. P. and the mother in the absence of a third party. The mother shall not attend Mr. P.’s home and Mr. P. shall not attend her home unless for pick ups and drop offs of Z.P. and then only in the presence of an adult third party approved by the Society.

[104] The L.’s and Mr. P. may send photos of the children to the mother, but all communications should be copied to the child protection or kin worker so that there is a record of what is said by each party. This is to protect all the parties involved in these child protection proceedings from further conflict.

[105] The mother is ordered to abide by the following additional conditions:

1. to engage with a community services and counselling that will assist her with her mental health;

2. to take any further parenting programs recommended by the society;

3. to ensure that her home is clean, safe and child appropriate for potential visits by her children;

4. to participate in recommended services including Enhanced Support services offered to her by the Society.

5. To refrain from directly communicating with Mr. P. unless in the physical presence of a third party approved by the Society; and

6. To ensure electronic communications to Mr. P. or to the L.’s in relation to the care of the children shall be copied to the child protection or kin workers.

b. Conditions and Access for Mr. P.

[106] Mr. P. will have access to E.-L. for a minimum of three hours a week. This access may be in the home of the L.’s or the home of Mr. P. provided both parties are agreeable to the arrangement. The L.’s and Mr. P. may arrange for additional access between the two children but must notify the Society of those arrangements ahead of time.

[107] In addition, Mr. P. will be subject to the following terms and conditions as part of his supervision order:

1. Mr. P. shall cooperate with the Society by allowing the Society worker to have planned and unplanned visits at his dwelling, by meeting with the Society worker at their office or other location at the worker’s request, by signing consent forms (after an opportunity to consult with counsel) for the exchange of information with collateral services as requested, and by advising the Society within 24 hours of any change to his contact information

2. Mr. P. shall attend the Caring Dad’s Program.

3. Mr. P. shall engage with community and support services as well as counselling services recommended by the Society.

4. Mr. P. shall ensure that he stays connected with the family support network

5. Mr. P. will not have any direct contact with the mother unless in the presence of an adult third party approved by the Society.

6. Mr. P. and will not attend the mother’s residence or place of work except for possible pick ups and drop offs of Z.P. and then only in the presence of an adult third party approved by the Society.

7. Any electronic communications by Mr. P. with the mother in relation to their child, including sharing of photos, will be copied to the child protection worker.

8. Mr. P. will not communicate with the mother by phone or other audio or visual electronic device except in the presence of an adult third party.

c. Conditions and Access for the L.’s

1. The L.’s shall cooperate with the Society by allowing the Society worker to have planned and unplanned visits at their dwelling, by meeting with the Society worker at their office or other location at the worker’s request, by signing consent forms (after an opportunity to consult with counsel) for the exchange of information with collateral services as requested, and by advising the Society within 24 hours of any change their employment or address.

2. The L.’s shall stay connected with the family support network.

3. Any electronic communication by the L..’s with the mother in relation to E.-L. will be copied to the child protection worker.

4. The L’s shall have access to Z.P. for a minimum of three hours a week. This access may be in the home of the L.’s or the home of Mr. P. provided both parties are agreeable to the arrangement. The L.’s and Mr. P. may arrange for additional access between the two children but must notify the Society of those arrangements ahead of time.

d. Conditions and Access for P.H.-W.

[108] E.-L.’s biological father, P.H.-W. will continue to have access to E.-L. on the same terms and conditions set out in my October 6 th decision and draft order. Those conditions include

1. provide the Society with details of his criminal convictions, anticipated release date from custody and criminal conditions and will provide consent for the Applicant Society to share and obtain information from his probation/parole officer. P.H.-W. shall follow his criminal conditions and any recommendations from his probation officer and shall not engage in any criminal activity.

2. shall meet regularly with a counselor of his choice to address his untreated mental health, anger management and addiction issues. He shall participate in additional community services as recommended by the Society.

e. Conditions and Access for L.-L.H.

[109] E.-L.’s paternal grandmother L.-L.H. will continue to have unsupervised access with E.-L. under the same terms and conditions set out in my October 6 th decision.

1. L.-L.H. shall have in-person and unsupervised access to E.-L. for a minimum of three hours per week under the following conditions:

2. L.L.H will work with the Society and L’s to identify a set of approved locations where such visits may be held;

3. L.L.H’s son S.H. or another adult person (“monitor”) shall facilitate the organization of L.-L.H.’s access visits and shall be responsible for pick-ups and drop offs of E.-L.;

4. At least 24 hours before each scheduled visit, L.-L.H. shall confirm with the L’s at which approved location the visit will take place and the precise amount of time E.-L. will be away;

5. If L.-L.H. intends to have the Respondent Father, P.H.-W. present for any access visit with E.-L., she shall inform the Society at least 24 hours in advance, and shall only allow the Respondent father P.H.-W. in the access visit with E.-L. with the Society’s approval;

6. Should S.H. or the monitor have any reason to believe L.-L.H. is not sober at the time of the start or end of the access visit with E.-L., S.H. or other monitor shall immediately terminate the access visit, return E.-L. to her home, and report the issue to both the L.’s and the Society. Access visits shall not resume until the issue is resolved.

7. L.-L.H. shall sign any consents requested by the Society for the disclosure of information related to ongoing counselling and services to manage her mental health and addiction issues.

8. In the event that L.-L.H. misses three consecutive access visits, her access shall be suspended until she meets with the Society to address and resolve the issue of missed visits.

f. Conditions and Access by R.H.

[110] R.H. has indicated an intention to present a long-term plan of care for both children. He is also being assessed as a caregiver by the Society. For this reason, R.H. will have access to E.-L. and Z.P. at the discretion of the Society and subject to any terms and conditions the Society deems fit. To minimize conflict, communication and facilitation of those visits will be entirely through the Society. R.H. will refrain from communicating directly or indirectly with the L’s and Mr. P.

[111] R.H. will sign any consent forms requested by the Society.

Issue 4: Should the L.’s be added as parties to these proceedings?

[112] The L.’s seek to be added as a party to the proceedings pursuant to the r. 7(5) of the Family Law Rules O. Reg. 114/99 as am.

[113] The mother and Mr. P. support the application. P.H.W. has not provided a position on the application.

[114] The Society opposes the application. They argue that the application is premature as the L.’s have not completed an assessment to determine if they are suitable caregivers to Z.P. I note, however, that the L.’s were assessed and approved as caregivers for E.-L. and that E.-L. was placed in their care for over a year with no issues identified.

[115] Rule 7(5) of the FLRs indicates:

PARTY ADDED BY COURT ORDER

(5) The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person. O. Reg. 114/99, r. 7 (5) .

[116] The FLR do not set out the criteria to be made for an order under r. 7(5) . In determining whether to add a person as a party to a child protection proceedings, there are five principles which govern the court’s discretion. These principles were set out in in paras 22 and 23 of CAS of London and Middlesex v. H.(S.) and recently reiterated in J.S.-R. v. The Children’s Aid Society of Ottawa , 2021 ONSC 7463 at paras 49 and 50 . These principles are as follows:

a. whether the addition of the party is in the best interests of the child;

b. whether the addition of the party will delay or prolong proceedings unduly;

c. whether the addition of the party is necessary to determine the issues;

d. whether the additional party is capable of putting forward a plan that is in the best interests of the child; and

e. whether the proposed party has a legal interest in the proceeding - in the sense that an order can be made in favour of or against such a person.

[117] The proposed party need not demonstrate all five factors. A.M. v. Valoris , 2017 ONCA 601 at para 24 .The paramount consideration is the children’s best interests: Valoris at para 35 .

[118] An interest recognized by law occurs when the court has an opportunity to make an order for or against a person in relation to a child: CAS of London and Middlesex v. H. (S.) at para 23 ; Children’s Aid Society of Algoma v. V.C., 2011 ONCJ 83 at paras. 11 and 12 ; see also Valoris at para 23 . If a court can only obtain all the pertinent and necessary information to properly adjudicate child protection issues by making an individual party to the case, then that should be done: CAS of the Region of Peel v. K.J.F. 2009 ONCJ 198 at para 42 .

[119] Although not required, I find the L.’s meet all five factors to be added as parties in child protection proceedings. First, adding the L.’s as parties is in the best interests of the children. E.-L. has resided with them for 14 months, about a quarter of her life, and will be doing so again temporarily. The L’s provided E.-L. a safe and stable home and intend to so again pending the outcome of these proceedings. The L.’s are intimately familiar with E.-L.’s health, education, and emotional needs. They maintained contact with E.-L. even after she was returned to the mother. They participated in the family group conferences and are part of the family support network.

[120] The L’s already intended to put forth a plan for E.-L. and intend to file a plan of care for Z.P. The children’s best interests requires the court to fully consider the all views of the children as well as all viable plans that might be in their best interests. The court benefits from hearing their views about E.-L. The court also needs to hear directly from the L.’s if they are to be considered as potential caregivers for E.-L. Similarly, the L.’s need to access and understand other sources of information related to the children, be it from the parents, Society, or other third parties, to adequately address the children’s best interests when these matters are further adjudicated. Being a party to the proceedings provides them access to that information.

[121] Given the dynamics of this family and the potential for conflicts, the L’s should not be left to rely on the mother or Mr. P to advocate their position: Simcoe Muskoka Child, Youth and Family Services v. M.(B.), 2017 ONSC 535 at paras 24 , 25, and 28. For the purposes of this motion, the mother appended an affidavit from one of the L’s because the mother supported the placement of her children with them. Going forward, the parties may have competing interests. I am also not satisfied that the Society will adequately represent L.’s position. There was clearly a communication breakdown on/around November 1 st when the children were apprehended from the mother. The Society assumed the L.’s would not be willing to care for both children short-term whereas the L.’s were more than willing to reconsider their position and have both E.-L. and her newborn sister placed with them. The court is best positioned to assess all placement options for the children if the L.’s have their own counsel and can put forth their views independently.

[122] Second, there is no risk that adding them to a party will delay matters. The trial of E.-L. has now been postponed. The L.’s have also committed to filing their responding materials promptly after being made parties in order to minimize any delay.

[123] Third, adding the L.’s is necessary to determine the issues in this case, particularly the best interests of E.-L. As already indicated, the L’s are very familiar with E.-L. needs and have valuable information to provide the court about her needs. The L.’s provided the Society information about E.-L.’s progress while in their care. They contacted the Society again when E.-L. made disclosures following a weekend visit with her mother. While I recognize E.-L.’s disclosures are contested and need to be fact-checked, they are still relevant in assessing and understanding E.-L.’s experience. E.-L. will be residing again with the L.’s temporarily going forward and they will have additional information to provide the court going forward. In order to assess and adjudicate what is in the best interests of the children, both short and long-term, the court needs to obtain all pertinent and necessary information about the circumstances of each child. The L.’s have that information to offer for E.-L. and are in the best position to inform the court of her needs and best interests.

[124] Fourth, the L.’s are clearly capable of putting forward a plan in the best interests of the children. They have already been approved as caregivers for E.-L. and were successful in caring for her in the past without issue. They also have positive relationships with the parents of both children. While they have yet to be assessed as caregivers for an infant, a positive assessment is very likely given their track record with E.-L.

[125] Finally, I am satisfied that the L.’s have a legal interest in these proceedings. They were previously subject to a court order while caring for E.-L. and will be under another court order with E.-L. in their temporary care. They intend to present a long-term plan of care for both children. They have established that they are persons for whom an order may be made in favour of or against in relation to these children.

[126] Having considered the legislation and relevant factors outlined in the jurisprudence, I find it necessary and, in the children’s best interests to add the L’s as a party to the both child protection applications related to E.-L. and Z.P. While the L.’s are not familiar with Z.P., it is clear that to date, the Society seeks a long term plan involving the placement of both children together. In this regard, each of the parties and the L.’s have put forth plans of care involving both children. While the protection applications for each child did not begin together, it appears they may be moving forward together and the L.’s should be able to be participate in both protection proceedings.

[127] There will be an order adding D.L. and E.L as parties to the child protection proceedings involving the children E.-L. and Z.P., presently under file number FC-20-00000087. The L.’s shall serve and file their Answer and Plan of Care by January 18, 2022.

[128] The Society shall prepare a draft Order consistent with this decision.

Somji J

Released: January 7, 2022

COURT FILE NO.: FC-20-87 DATE: 2022/01/07

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT , 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF E.-L.H. (DOB: August 21, 2016) and Z.P. (DOB: […], 2021)

BETWEEN:

Family and Children’s Services of Frontenac, Lennox and Addington Applicant – and – V.H. (Mother) – and – P.H.-W. (Father) – and – Z.P. (father)

• and – L.-L.H. (Paternal Grandmother) Respondents

REASONS FOR DECISION

Somji J.

Released: January 7, 2022