OSHAWA COURT FILE NO.: FC-21-00000023-00
DATE: 20220126
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Durham Children’s Aid Society
Lana Pryce, for the Applicant
Applicant
- and -
P.A.
On her own behalf
Respondent mother
- and -
D. A.
Respondent father
On his own behalf, although not present
Mark Maurer, counsel for the child, B.A.
HEARD: January 18, 2022
RELEASED: January 26, 2022
WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
JUSTICE ALEX FINLAYSON
PART I: NATURE OF THIS DECISION
[1] The Durham Children’s Aid Society (the “Society”) brings a motion to vary a supervision order on interim basis within a Status Review proceeding. Most of the changes requested by the Society are to enable the father and the parties’ 14-year old son B. to relocate to southwestern Ontario, approximately 250 kilometers away from Oshawa, and the mother. The Society also seeks to vary some of the terms of supervision that are in place.
[2] The Society brings its motion after the fact of the move; a move which was the latest of three plans contemplated by the Society for this family between September and December, 2021. This Court directed the Society to bring this motion after it learned that the Society had already negotiated, financed and implemented the move without discussing it involving the Court.
[3] This Court may very well have granted the variation and authorized the move in the child’s best interests, had the Court been made aware of it beforehand. But that is not what happened in this case.
[4] This written decision serves two purposes. The first is to address the merits of this motion now that the Society has brought it. I am prepared to make an order that will allow the father and son to remain in their new location, for now. My order will be a temporary without prejudice one only. As I will explain, the plan was not fully thought out. The mother advised the Court during the motion that she felt she had “no choice” respecting the move. She said she will now retain counsel. The second purpose is to set out its expectations of the Society in the future should it be confronted with a similar circumstance.
PART II: BACKGROUND
A. The Supervision Order of Brown J. dated July 7, 2020
[5] Originally, this family lived in Huron County, where father and son have now returned. The family has a child protection history there. There were prior proceedings before the Ontario Court of Justice in Goderich, Ontario, before the case was transferred to Durham.
[6] In or around the early part of 2020, the family moved to Oshawa. The case was still before the Court in Goderich when the family moved. On July 7, 2020, Justice V. Brown found B. to be in “continued need of protection pursuant to sections 74(2)(b)(i) and 74(2)(b)(ii) of the Child, Youth and Family Services Act ”, and placed the child in the joint care of his parents subject to the supervision of the Huron-Perth Children’s Aid Society for 12 months on various terms and conditions. According to the (Durham) Society’s counsel, there had already been at least one Status Review in Goderich at that point.
B. The Status Review and the Transfer Motion
[7] The current Status Review Application dated May 25, 2021 that is now pending before this Court also began in Goderich. In the spring or summer of 2021, the Huron-Perth Children’s Aid Society brought a motion in Goderich to transfer this Status Review proceeding to this Court. Brown J. ordered the transfer on July 21, 2021.
C. The First Appearance on the Status Review in this Court on September 14, 2021
[8] The first appearance before me on this Status Review occurred on September 14, 2021. Neither of the parents were in attendance that day; only counsel for the Society and counsel for the child attended.
[9] The Society filed a Confirmation Form briefly summarizing in one paragraph its historical and current concerns about the father, the child and “the family”. The mother is not specifically mentioned in the Confirmation Form. The Order of Brown J. dated July 7, 2020 was not put before me for some reason. Listed in the Society’s Confirmation Form were the terms and conditions “from the July 7, 2020 order” and “additional ones from the May 2021 SRA Application”. The list did not differentiate between the terms that had been actually ordered by Brown J. from the “additional ones” now claimed in the Status Review Application.
[10] With no Notice of Motion before the Court, no evidence before the Court, and in the absence of the parents, the Society asked the Court to vary Brown J.’s July 7, 2020 supervision order and add the new terms, being those blended into the list in the Confirmation Form. This is not the proper way to obtain a new court Order for a myriad of obvious reasons. And the Court had to spend some time with counsel just trying to get clarity about what terms were already in force.
[11] Other than amend the Order to reflect that it would now be the Durham Children’s Aid Society responsible for the supervision, I declined to vary Brown J.’s Order. I directed the Society to file a copy of Brown J.’s Order and said it could bring a motion to vary on notice to the parents with some actual evidence. I adjourned the matter to October 13, 2021, either to be spoken to, or for that motion.
D. The Second Appearance on the Status Review on October 13, 2021
[12] The Society did not bring a motion to add additional terms on October 13, 2021. Instead, the Society filed its second Confirmation Form saying that it intended to proceed with a motion to “withdraw matter from court and work with family on a voluntary basis”. The Confirmation Form also said “DCAS will file a Notice of Motion and affidavit.”
[13] While the Society did file the affidavit of Ms. Place sworn October 7, 2021 for this appearance, it did not file a Notice of Motion.[^1] Once again, neither parent was in attendance. Counsel for the child was not present either due to an emergency. This was a short appearance that resulted in an adjournment.
[14] However, Ms. Place’s affidavit of October 7, 2021 did serve as an update for the Court that day. Ms. Place deposed that commencing in February 2021 and continuing up to the date of the affidavit:
(a) The Society received reports from others about underage drinking, family conflict, food insecurity and screaming and yelling in the home;
(b) The Society verified that the mother was permitting underage drinking in the home;
(c) The Society verified family conflict;
(d) There had been police involvement;
(e) The Society received reports of family violence; and
(f) The Society observed an unclean home.
[15] Regarding the family’s housing instability, Ms. Place explained that since moving to Durham, the family had been evicted for the non-payment of rent. The family then lived in a series of different temporary accommodations after that, but in Durham. While there is some mention early on that the family might move out of Durham to Kitchener or back to “Huron-Perth”, there was no concrete plan to do so described in this affidavit. In fact, the statements from the mother to that effect were allegedly said to Ms. Place in the fall of 2020, months before the Huron-Perth Children’s Aid Society even brought the transfer motion. After that, and certainly after the transfer motion that resulted in this Court’s involvement, the overall tenor of the affidavit is that the family’s plan centered around them remaining in Durham, and they had been engaging, with the Society’s support, in a search for housing here. The balance of the affidavit discusses various supports the Society was either providing or going to provide, also all centered around Durham.
[16] In regards to its proposal that the protection proceedings now be terminated, at paragraph 79 to 83 of the affidavit, Ms. Place deposed that she found the family to be cooperative and responsive. She wrote that the parents “appeared to have insight” into their past drug use and how that negatively impacted the child. She deposed that they had struggled to follow through with suggestions for supports. And she deposed that the Society would be helping the family to obtain stable housing, to address mental health and sobriety issues, and to ensure that the child would not be exposed to adult conflict. But Ms. Place deposed that she believed work could happen in a “less intrusive manner” and so on that basis, the Society wanted to ask the Court to “withdraw” in favour of the family entering into a Service Agreement.
[17] The Society even prepared a draft Service Agreement to show to the Court. The term of this proposed agreement was six months. The services to be accessed by the family referred to therein involved the family remaining in Durham. Notably, in its service agreement, the Society wanted to be advised of changes to the parents’ address or phone number fourteen days prior to any change; advance information that the Society would later not find important to share with the Court.
[18] Because there was no actual motion before the Court, the parents were not present and the OCL needed an adjournment, I adjourned what I thought was going to be a motion about a withdrawal or termination to December 17, 2021. I even endorsed that it could be sent to me in chambers for my review in advance, if for example the matter would be proceeding on consent.
E. The Third Appearance on the Status Review Application on December 17, 2021
[19] The next Court date was December 17, 2021. Both parents attended Court on December 17, 2021, as did counsel for the child. The child was present for part of the appearance but the Court asked him to step away for some of the conversation.
[20] Leading up to this date, the Court did not receive a motion to withdraw or terminate, either in chambers by way of a 14B Motion, or in the ordinary course to be argued orally on the return date. Instead, the Society filed a Confirmation Form asking to adjourn the December 17, 2021 appearance to a future date because the parents had separated, and the father and son had moved back to Huron County.
[21] The Confirmation Form advised the Court that the parents separated a month earlier, in November 2021. The Confirmation Form claimed that the mother was living with a friend in Oshawa, but said that she would not provide the address. The Confirmation Form said that the Society would now circulate a Statement of Agreed Facts for a six-month supervision Order. It advised that the father and the child had returned to the Huron-Perth area, fifteen days earlier. It instructed the Court, “[i]f they will be residing there then the file will need to be transferred back to that area.”
[22] The Confirmation Form contains a heading entitled “November 26, 2021 and December 1, 2021 Plan with family and DCAS”. What follows appears to be a summary of the plan that the Society had already worked out and implemented, said to have been devised over a short 5 day period, without first discussing with the Court. This part of the Confirmation explained that the child and father would be living with the paternal grandmother “some 2 hours and 45 minutes west of Oshawa”. It explained that the Society either had already or would be paying for their transportation, for luggage for father and son, for the storage of various items, and for transportation to get those items to storage, here in Durham. There is also a plan referred to therein for the child to participate in his existing school until February, 2022.
[23] This plan, as described in the Confirmation Form failed to mention the mother almost entirely. [^2] It contained no details about her parenting time with the child, post-move. As I later learned, that has still not been sorted out. The Society wrote in its Confirmation Form that the child was “aware of plan and seems to be in support of it.” Counsel for the child, who only spoke to the child after the move, said the child seemed to be content. Orally the mother told the Court that she wished to reconcile and move back in with the father and son. The father shook his head in disagreement.
[24] The Society did not file affidavit evidence for December 17, 2021 setting any of this out in sworn form. Instead, its Confirmation Form for December 17, 2021 was the third Confirmation Form, submitted by the Society over the course of a three-month period, that contained a completely different proposed plan from one to the next. To recap:
(a) On September 14, 2021, the Society took the position that new terms and conditions had to be added to Brown J.’s supervision Order;
(b) On October 13, 2021, the Society took the position that a withdrawal or termination was now appropriate despite ongoing protection concerns. No reference was made to the applicable legal principles, like those set out in Windsor-Essex Children’s Aid Society v. J.W., 2015 ONCJ 297 and Catholic Children’s Aid Society of Toronto v. B.(D.), 2002 CarswellOnt 1868 (Ont. C.J.), however I appreciate that the October 13, 2021 date ended up getting adjourned; and
(c) On December 17, 2021, the Society advised the Court, after the fact, that the parents had separated, that one parent moved with the financial and logistic support of the Society, that a further six month supervision Order was now needed, and that yet another file transfer would probably also be required, too.
[25] Having reviewed the Society’s latest Confirmation, having heard the comments of counsel and the statements of the parties, and having been now made aware of the extent to which this plan was not fully thought out and the amount of chaos happening, let alone the fact that there was a different Order in place premised on previous representations to the Court that the family would be living in Durham, accessing services in Durham and being supervised by this Society, the Court directed the Society to bring a motion.
[26] I wrote the following in the Endorsement of December 17, 2021:
The parents have now separated and the father has relocated back to Huron. The governing Order that continues to apply in the Status Review may no longer be operable in reality. The Society implemented this plan with the father over the past few weeks, which included funding his transportation. This in turn has resulted in the child’s relocation out of the jurisdiction, without bringing the matter back to the Court. When I expressed my concerns about this, counsel’s response was that my comments were “duly noted” and would be considered in the future.
The Court is not making suggestions. In the future, when there are significant changes to governing orders being proposed, the proper course of conduct is to bring the matter back to the Court and to seek judicial authorization.
I am not prepared to adjourn this matter without any requirement for the Society to [do now] what ought to have been done. The Society now needs to bring a motion to change the governing Order if in fact this arrangement, that the Society facilitated, is going to be permanent. The Society shall file a Notice of Motion for a proposed Order and an affidavit with the necessary evidence for me to satisfy myself that this Order is in the child’s best interests. These events also impact the mother under the governing Order, which provides that the child is in the joint care of the parents. She may wish to respond. As may counsel for the child.[^3]
F. The Motion to Vary the Supervision Order on a Temporary Basis Heard on January 17, 2021
[27] The Society now seeks a temporary order continuing the term that the child remain in the joint care and custody of his parents. However, it asks for an order that the child’s primary residence now be with the father.
[28] The Society asks that the Court now order that either it or the Huron-Perth Children’s Aid Society, supervise. The Huron-Perth Children’s Aid Society was not served with this motion and is not a party to this proceeding.
[29] The Society asks for an order for thirteen terms and conditions of supervision. Many of the terms are the same as those previously ordered by Brown J. However, some are new or re-worded versions of initial terms.
[30] Respecting the mother’s parenting time, the Society’s Notice of Motion provides for “regular access/parenting time with [B.] including telephone, social media contact, virtual contact as arranged by [the father] in consultation with DCAS or the Huron-Perth Children’s Aid Society”. It also says that the child’s views and preferences should be taken into account.
[31] What led to this move is set out in the section of Ms. Place’s latest affidavit of January 7, 2022 entitled “housing instability”. According to that affidavit, there was a meeting on November 26, 2021, three weeks before the December 17, 2021 return date, to discuss the ongoing housing instability. According to Ms. Place, it was the mother who suggested that the father and child should go back to Huron County. The affidavit goes on to state that family was going to “rethink their plan” about remaining in Durham. No more than six days later on December 2, 2021, the father and son were back in Huron County, arranged for and funded by the Society.
G. The Mother’s Statements to the Court on January 17, 2022
[32] The father did not attend the motion. Apparently he told Ms. Place that he had to work, but counsel said that Ms. Place reviewed the terms and conditions with him, and he agreed to them.
[33] The mother came to Court late. She appeared mid-way through argument.
[34] Although the mother did not file an affidavit, the mother told the Court orally that she felt that she did not have a choice in the matter (referring to the move). She told the Court that had she spoken up, it would not have made a difference because the father and son would have left anyway. The mother told the Court that Ms. Place had already talked to the father child about the move a week before, and “pre-arranged” it before the issue had even been raised with her. The mother also worried that now she would be removed from decision-making concerning the child.
[35] There is some updated information in Ms. Place’s affidavit that the mother may have relapsed respecting her substance misuse. For example, on January 7, 2022, Ms. Place received an email that the mother was completing a “detox” program, and that she would then be going to an inpatient program in Goderich. The mother confirmed that she had been to the “detox” program and then said that she was on wait lists for “rehab centers”, although not all of them are in Goderich. I am concerned that the mother may have been in a vulnerable state when these arrangements for the move were devised.
[36] The Court canvassed with the mother whether she was prepared to agree to the new or modified terms and conditions that the Society was asking the Court to order. The mother was cooperative and respectful and told the Court those with which she was prepared to agree. The mother also told the Court that she is now searching for a lawyer.
PART III: ISSUES AND ANALYSIS
A. A Supervision Order Continues In A Status Review Until It Is Varied by the Court
[37] The Court appreciates that this case was in a state of flux and the Society may have found the situation challenging. However, the relocation of a child should never be undertaken with haste. It is hard to conceive of a fact situation in which five days could ever be enough time to fully plan out something like this. Moreover, the statute is clear that a supervision order made in a prior protection proceeding continues in the Status Review until it is modified by the Court. Section 113(8) of the CYFSA states that during a Status Review, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody [my emphasis added]. Among other things, section 114(a) provides that the Court may vary a term or condition in the Status Review proceeding also.
B. The Test to Vary A Supervision Order In A Status Review On An Interim Basis
[38] The Society made almost no submissions about the test to vary a supervision order in a Status Review on an interim basis, apart from telling the Court that the test is one of “material change”.
[39] There are actually two lines of authorities about the test to vary a supervision order in a Status Review on an interim basis; one line of cases being more stringent than the other. They consider the amount of threshold change that is required having regard to the statutory framework and as a matter of policy. In the analysis courts also considers the child’s best interests using the factors in section 74(3), as section 113(8) directs.
[40] At paragraph 14-17 of Catholic Children’s Aid Society of Toronto v. W.P.P., 2020 ONCJ 388, Justice Sager summarized the two lines of authorities as follows:
[14] One line of cases enumerates a test that mandates a material change in the circumstances of the child such that a change in placement is required to meet her best interests. These decisions emphasize the need to demonstrate a material change or a significant change before it will alter a care and custody arrangement found to be in the child’s best interests following a trial or based upon agreed findings of fact set out in a Statement of Agreed Facts.
[15] The courts in these decisions stress the importance of not interfering with a status quo created by a final order lightly especially when the affidavit evidence on the motion to vary the final placement on a temporary basis is untested. Due to the importance of stability and continuity of care for a child in a child protection proceeding, some courts have interpreted subsection 113(8) and more specifically the use of the words “require a change” to mean that the court must find that the change in circumstances is significant such that it creates a need for a change as opposed to the change being “merely desirable”. See: Kawartha-Haliburton Children's Aid Society v. A.R. and D.F., 2020 ONSC 2738; Catholic Children's Aid Society of Toronto v. K.G., 2020 ONCJ 208; CAS Algoma v. S.S., 2010 ONCJ 332; and, Children’s Aid Society of Toronto v. S.G., 2011 ONCJ 746.
[16] The other line of cases state that it is not necessary to import the test of material change in circumstances into subsection 113(8) of the CYFSA and rather what is required is to demonstrate that there has been sufficient change that effects the child’s best interests requiring a change to her placement. What is sufficient depends on the circumstances of the case. See: The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), 2016 ONSC 5925 and Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., M.E., and I.B., 2020 ONSC 1435.
[17] At paragraph 26 of The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), Justice P.W. Nicholson rejects the need to find a material change in circumstances and says, “Although the order at the conclusion of a child protection application is considered a final order, child protection proceedings in general should be considered fluid until the matter is finalized either by termination of all protection orders or a crown wardship order. Therefore, the court is not bound to find a material change in circumstances before a final order made under a child protection application can be varied. The court is called upon at this stage to determine what is in the best interests of the child.”
[41] At paragraph 19-34, Sager J. determined that the more flexible approach should apply. She considered the purposes of the legislation, principles of statutory interpretation and she distinguished the requirement to find a “material change” found in other kinds of family law cases as not being appropriate in child protection litigation. In the end at paragraph 34 she wrote:
In order to determine whether there should be a temporary change to a final care and custody order on a Status Review Application, the court must consider all of the relevant and reliable evidence on the motion within the context of the case as a whole, and decide if the evidence demonstrates that a change in the child’s life has taken place that impacts their best interests requiring a temporary change to their placement pending final adjudication of the Status Review Application.
[42] In Children’s Aid Society of Brant v. A.H., 2020 ONCJ 49, Hilliard J. agreed with Sager J.’s approach on the threshold issue of change. However, she added a further nuance that a different amount of change may be appropriate when the request is to change a placement, versus a request to change parenting time. Hilliard J. referred to the test to change parenting time as being even “significantly lower”.
[43] In Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, albeit in the context of the initial protection application and not a Status Review, Sherr J. also distinguished between the test to vary a placement as different from the test to vary an order for parenting time. In both tests, Sherr J. called for a contextual and flexible approach, both as to the quantitative amount of change that is required before a Court will vary a temporary order, and as to the factors that should then be considered when crafting a new order.
[44] But regardless of which test or tests apply, it is the Court, not the Society, that makes the ultimate decision.
C. Relocation in Child Protection Proceedings
[45] The analysis about a request to change, on an interim basis in a Status Review, an order like the one in this case gets more complicated when the proposed change involves a relocation. The Society did not address that either in submissions.
[46] In Children’s Aid Society of Toronto v. G.M., 2015 ONCJ 463, the Society brought a motion within a Status Review to change a child’s placement to place the child with a grandfather who lived in the Cayman Islands. The plan was supported by one parent and opposed by the other.
[47] Sherr J.’s decision was made under the predecessor Child and Family Services Act, and at a time when the predecessor versions of the Children’s Law Reform Act and the Divorce Act were in place.[^4] Nevertheless, Sherr J. referred to the principles that then applied respecting temporary relocations in non-child protection matters under the Children’s Law Reform Act as helpful: see paragraph 36. However, he also noted that the Court had to consider other important factors in child protection cases.
[48] At paragraph 37-41, he noted the differences in the best interests test under the Child and Family Services Act as opposed to under the Children’s Law Reform Act. He noted the purposes of the Child and Family Services Act. He noted that the need to weigh the new placement against making reasonable efforts to return a child to the person who had charge prior to the society involvement. He wrote, “[t]he reality is that if a child is placed with an extended family member that lives far away on a temporary basis, the parents’ opportunity to prove that they can safely parent the child will be severely compromised and this fundamental objective of the Act will be frustrated.” He also wrote that a parent should be given a reasonable period of time to come up with a realistic plan before a move is considered. He listed 15 other considerations, which I need not repeat here.
[49] While some of the statutory references and principles in Sherr J.’s decision may now be somewhat different since both the governing child welfare legislation and the other family law legislation have changed, the main thrust of this decision remains applicable, and very important.[^5]
[50] At paragraph 41, Sherr J. wrote:
Many of the temporary mobility principles set out in Boudreault [a case about interim relocations] are applicable to the assessment of a temporary mobility motion in a child protection case. The court should be cautious in making such orders when there are material facts in dispute that require testing at trial or when the proposed move involves a long distance. The temporary decision will often have a strong influence on the final outcome of the case. Courts do not like to create disruptions in the lives of children by making an order that may result in further disruption later if the order has to be reversed. Further, a move involving a long distance will severely compromise a parent’s opportunity to prove that they can safely parent the child.[^6]
D. The Child’s Views and Wishes
[51] Counsel for the child did not have a proper opportunity to canvass and put before the Court the child’s views and wishes before the move. He did not have a proper opportunity to do so either by January 18, 2022.
[52] The importance of taking into account a child’s views and wishes in child protection cases (and other cases concerning them too for that matter) is well known. The first sentence in the preamble of the Child, Youth and Family Services Act, 2017 acknowledges that children “are individuals with rights to be respected and voices to be heard”. The child’s “views and wishes” are also now front and center in the statutory best interests test in section 74(3) .
[53] In its motion material, the Society tells the Court about the child’s apparent views and wishes in relation to the move and in relation to his ongoing contact with the mother. While evidence of views and wishes may come from various sources, including from a Society worker or case notes, in this case the child has counsel and counsel for the child ought to have been given an opportunity to present the child’s views and preferences.
[54] The Society, through Ms. Place’s affidavit, says that it kept counsel for the child involved via email “on an ongoing basis”. However, Ms. Place’s affidavit reveals that counsel was merely told of the separation, then the plan for the move and then that the move had happened. He was not even given new contact information for his own client, until December 17, 2021, the very day this matter returned before this Court and the Court was told about the move.
[55] On January 18, 2022, counsel for the child advised the Court that the Society kept him informed about the developments as they unfolded, but he was not part of the negotiations and the move happened in a way that was not satisfactory to him. He agreed that the matter ought to have been brought back before the Court.
[56] To date, counsel has not yet had an opportunity to get the child’s updated views and wishes, whether about the move or about the child’s contact with the mother post-move. He needs an opportunity to arrange a face-to-face meeting with the child alone, to be able to assess the situation and to obtain those views and wishes.
E. Analysis Respecting the Change of Placement
[57] This move materially impacts both the previous placement and parenting time. I intend only to make a temporary without prejudice order at this time. The mother is searching for a lawyer to obtain proper legal advice as to what has transpired, and as to any remedies she may have. The child’s views and wishes need to be ascertained. As such, until I have further evidence and hear proper submissions, I prefer not to make a finding about which iteration of test I will apply. I need only find that at this early stage, based on only the Society’s evidence (which is all the Court has), that the Society has met either iterations of the test to change the placement, and parenting time, at this point.
[58] I say this because the circumstances for this family have changed in different ways over the past few months that this case has been before this Court. The Society itself changed “plans” some three times during the fall. One the one hand, the family’s housing instability is not new. However, the parents’ separation appears to be a more significant change. I also rely at this point on the evidence tendered by the Society that there continued to be conflict in the family, the parents did not yet have stable housing when the separation occurred, it appears the mother may have relapsed respecting substance misuse, it appears that the mother went to some kind of short term substance misuse program, and she is waiting for an opening for a longer stay in a rehabilitation program.
[59] But in spite of these changes, and so that it is perfectly clear to the parents and the Society, I am making this order largely because the move has already been effected and no further efforts were invested into a housing plan or housing plans in Durham. As things have unfolded, there is no other current option. The Court is not yet even fully aware of this family’s history in Huron County. I am not at this point, other than on a without prejudice basis, determining that this plan is in this child’s best interests. Things may change once the mother (or the father) retains counsel, and there is a proper opportunity to consider fully the parents’ evidence and the legal principles cited above.
F. Terms and Conditions
[60] I was initially inclined to grant some of the new or different terms and conditions sought by the Society, particularly after hearing from the mother that she would agree to certain terms. But having considered the matter further, the applicable legal principles respecting terms and conditions, and in view of the fact that father was not present and the mother wishes to retain counsel, I decline to make any changes now, except as is necessary to reflect the current reality that the father and son have moved.
[61] The terms and conditions ordered by Brown J. on July 7, 2020 continue by virtue of the statute, unless varied by the Court. And I already continued them on September 14, 2021 anyway when I granted the minor variation that the Durham Children’s Aid Society would now supervise. Before this Court should change or add to the existing terms, it should be satisfied that any alterations or additions are reasonable, proportionate, and necessary to address some new risk. See Children’s Aid Society of Toronto v. T.J.M., 2010 ONCJ 701; Children’s Aid Society of Toronto v. M.R., 2015 ONCJ 196. I did not really hear submissions from the Society about why the existing terms are now inadequate to address the ongoing concerns. Once again, counsel spent most of her submissions on this point trying to explain to the Court which of the proposed terms had been changed from those already in place as it was very difficult to follow this in the Society’s written material.
[62] The failure of a parent to comply with the terms of a supervision Order can have serious consequences. See Catholic Children’s Aid Society of Toronto v. J.R.C., 2015 ONCJ 729 paragraph 75. Regarding the father, while counsel said that Ms. Place reviewed the proposed terms and conditions with the father and he in turn agreed to them. This information was not in sworn form. There was no legal advice. Putting a consent before this Court in this manner can be problematic. Ms. Place could have easily obtained a written consent from the father and provided some evidence that section 21 of the CYFSA was complied with. Regarding the mother, even though she indicated to me directly that she would agree to some of the alterations, as she wants to retain counsel and as there are already terms and conditions in place, I am going to allow her to get that advice.
[63] I will however make a few comments about what the Society has claimed in its Notice of Motion, as the father’s future attendance in Court or the legal advice the mother obtains will not change what I have to say about the following.
[64] First, the Society asks the Court to order that Huron-Perth Children’s Aid Society now supervise this family, in addition or alternatively to itself being the supervisor. The Society did not provide the Court with any evidence that Huron-Perth Children’s Aid Society actually consents to being ordered as a named supervisor. The Huron-Perth Children’s Aid Society is no longer the applicant in this proceeding. The Society previously accepted the transfer of this file to Durham. The Society is the supervising agency as a result of my Order of September 14, 2021. One parent currently remains in this jurisdiction, whereas one parent is in the other jurisdiction.
[65] Ms. Place’s affidavit does say that arrangements have been made for a worker from Huron-Perth to get involved, and that the former worker from Huron-Perth is now “officially” involved and has already taken some steps to work with the family. I do not know what the parameters of being “officially” involved means. Therefore, the Society is going to remain the supervising agency until there is proper evidence before this Court and until this Court says otherwise, but in the meantime, I will give it permission to arrange for a designate from the Huron-Perth Children’s Aid Society to work with the father and the child, for so long as they remain in Huron County. Obviously, Ms. Place can no longer easily supervise the father and child herself, when they are hours away.
[66] Second, the Society proposes that the child continue to be in the joint care and custody of his parents. According to Society counsel, this request is made to keep the parents on an equal footing and keep the status quo in place as much as possible. In light of the separation, the parent conflict and the distance now imposed, this may very well be a fiction, both factually and legally. However, again, the mother wishes to retain counsel and said she did not agree to give up “custody”. Therefore, I am prepared to continue this aspect of the supervision order until she is given an opportunity to get legal advice. The impact of a move on this kind of proposed legal arrangement is the precise type of thing for which legal advice is important, in advance.
[67] Third, paragraph 1(j) of the Society’s Notice of Motion, if ordered, would require the parents to participate in one of several kinds of counselling, including even couples counselling. The Society was unclear about what kind of counselling it would like to see happen because the situation is so “fluid”. But aspects of this request in the Notice of Motion are inappropriate. This claim for this term is too vague. If there is to be counselling, then it should be thought out, discussed with the parents in advance, and ideally consented to.
[68] As it pertains to the couples counselling claimed in the Notice of Motion (ie. counselling in aid of a reconciliation) that is most definitely a consensual process. In general, much needs to be known about a family dynamics, such as histories of family violence and power imbalances, before the Court could consider making such an order. Even then, couples counselling is not something that the Society should be routinely asking the Court to impose on parents.
[69] In this case, there has been family violence. During submissions, counsel abandoned the request. Incidentally, the mother also told the Court she does not wish to participate in couples counselling.
[70] Nevertheless, Ms. Place told the Court that all family members had previously agreed to engage in some kind of counselling. As such, if there is any additional programming in which the Society wishes the parents to participate, then it may bring that to the Court’s attention. That should include a concrete proposal. And if after discussing the issue with the parents the parents do not wish to cooperate or there is some other issue, then that too may be brought to the Court’s attention in case management in the ordinary course.
[71] Finally, there is already a term respecting counselling and mental health supports for the parents, individually, in place in Brown J.’s order, anyway. And I note that during the proceeding on January 18, 2022, the mother committed to work with Pinewood, go to the rehabilitation program when a spot comes up, and to meet with Ms. Place to access appropriate mental health supports. I did not get the impression that any new terms were needed to compel her to do these things. If that changes, then the situation may be revisited by the parties in Court.
G. The Mother’s Parenting Time
[72] Changes to parenting time are governed by section 104 of the CYFSA and the statutory best interests test in section 74(3).
[73] At the time of the negotiations resulting in the move, there was no concrete plan for the mother’s in person parenting time with this child, post-move. The Society said in Ms. Place’s affidavit or during submissions that her whereabouts are currently unknown, she relapsed respecting drug use, and she did not attend a visit over the holidays, that had been arranged.
[74] Subsequent to the December 17, 2021 court appearance at which this Court directed this motion be brought, there appears to have been some further effort on the part of the Society to arrange an in person visit between the mother and child. The child apparently expressed to the Society that he was concerned about his mother’s drug use, but that he would still like to see her in person. The child apparently told the Society that he did not want to travel back to Durham. Later, he apparently told the Society he would be “ok” to visit Durham.
[75] The Society agreed to cover the cost of a visit in a hotel. In the end, the visit then did not happen. According to Ms. Place’s affidavit, the child subsequently expressed concerns about going on the visit. The father was also the author of some communications alleging that the child was not comfortable.
[76] The Notice of Motion now before the Court only asks for an order for telephone and virtual visits (although it may be worded broadly enough to include other forms of parenting time). The mother told the Court the father is restricting the child’s access to a cell phone and there is spotty access to the internet in the home. During this motion, the family services worker said she would intervene with the parents on this issue. A hodgepodge plan for the mother’s parenting time was cobbled together in Court. It requires further exploration and discussion. But it also illustrates the extent to which there was no plan devised for this at the time of the move.
[77] The Society undertook during the motion to assist financially with the mother’s parenting time. The Society promised to arrange alternatives to ensure that the child has access to the necessary technology or telephone to be able to regularly speak to his mother. The Society also agreed to pay for the mother’s transportation to see the child and to arrange for accommodations for her to do so. Given its statements to the Court, I intend to make orders accordingly until the return of this motion.
H. Some Comments About Proper Practice for the Future
[78] In the future, the Society needs to be mindful at least about the following five points.
(1) The Requirement of Prior Judicial Authorization
[79] Earlier, I cited sections 113(8) and 114(a) of the CYFSA and underscored certain words in the former section for emphasis. These provisions operate to preserve the status quo in a Status Review, subject to the Court saying otherwise. Section 113(2)(c) of the CYFSA requires the Society to bring the matter before the Court within five days after removing the child, if the Society has removed the child from the care of a person with whom the child was placed under an order for society supervision. It remains to be seen whether it will be argued by the mother that what the Society implemented amounts to a removal. And if so, the Court was not informed about the move for the first time until December 17, 2021, at least 15 days after the move.
[80] What these (and many other) legislative provisions do is provide constraints on the Society’s power. These provisions are guarded over by judicial oversight. Much has been said about the importance of judicial oversight in child welfare. For example, as Kukurin J. wrote at paragraph 13 of Chatham-Kent Children’s Services v. C.P., 2014 ONCJ 395, “[t]he justification for society intervention in the lives of families is the protection of children. The society’s authority is subject to a number of procedural checks and balances in the Act, and ultimately to judicial oversight.”
[81] Writing in a different context, at paragraph 58 of Catholic Children’s Aid Society of Toronto v. R.G., 2014 ONCJ 363, Spence J. said, “[i]f a party were permitted to terminate the status review proceeding unilaterally, without any judicial oversight, it would be impossible to carry out the paramount purpose of the Act. And it is that paramount purpose which, in my view, is immediately engaged the moment a status review application is brought to the court – whether the status review application is mandated by the CFSA or is brought voluntarily pursuant to the CFSA.”
[82] And even more directly on point, in 2017, Justice Pawagi authored a decision specifically telling societies that they are not authorized to act unilaterally to change a child’s placement without prior judicial authorization.
[83] In Children’s Aid Society of Toronto v. N.N., 2017 ONCJ 827, the Society did not tell the Court, beforehand, that it had moved the child to the home of a family friend under the guise of an “extended access visit”. When Pawagi J. learned of the move, she also directed the Society to bring a motion after the fact (like I have now done). Although she later authorized the move (like I am also doing), she released reasons “in the interests of providing guidance on the proper interpretation of discretional access orders made under the [CFSA]”. See paragraph 2.
[84] Pawagi J. held that a discretionary access order did not entitle the Society to implement an extended visit. I rely on her case for its clear statement about judicial oversight respecting changes to placements. At paragraph 16, she wrote:
Court oversight is even more critical when the access contemplated is really a change of placement by another name, especially when the change of placement may have been opposed by one of the parties, or, as in this case, by the child. The society should not be able to get around a disputed change in placement by calling it an “extended access visit,” just as, at the other end of the spectrum, it should not be able to terminate access by calling it a “suspension.” Both extremes push the concept of “access” beyond the breaking point and thus require prior judicial authorization. There may be valid reasons to place the child on an “extended access visit,” such as when the society wishes to test a placement with a parent and does not want the child to lose the foster placement in the event the test is not successful. The point is that the decision is for the court to make, not the society. [my emphasis added].
[85] In this case before me, the Society did not just move the child from one home to another like in the case before Pawagi J.; it moved the child between regions of Ontario and from his parents’ joint care to the father alone. The Society was not even acting under the ostensible authority of an order like a discretionary access order that might have, at one point in the past, been open to different interpretations (until Pawagi J. clarified any confused interpretations of the law). In this case, the Society implemented a move in contravention of the statutory review provisions, which clearly require court approval. It also paid insufficient regard to the relocation principles.
(2) The Court’s Role in the Case Management of Child Protection Proceedings
[86] The Society does not have unfettered authority to implement any plan that it develops with the parents. There are other justice system participants, like the Court and the OCL, with roles to play.
[87] I do not accept that the Society could not have brought this matter back before the Court earlier, and therefore that it was justified in proceeding with the move and waiting until December 17, 2021 to tell the Court about it. The Society could have easily filed a 14B Motion on an urgent basis to my attention with some evidence about what was being contemplated and requested an earlier date. It could have even contacted the trial coordinator if it thought the matter was sufficiently urgent. It would have been accommodated.
[88] Soon after the CYFSA came into force, Sherr J. released the decision Catholic Children’s Aid Society of Toronto v. K.R., 2018 ONCJ 288. At paragraph 7, he gave societies some early guidance about some of their basic responsibilities under the new legislation, some of which the Society did not follow in this case before me. After referencing the paramount and other purposes of the then new CYFSA, Sherr J. told societies that as soon as practical they should be doing the following:
(a) providing timely and ongoing file disclosure to counsel for the parties and counsel for the children so that they can meaningfully participate, if they choose to do so, in a discussion about what services for the children and their family will best meet the purposes of subsection 1 (2) of the Act;
(b) assessing the strengths of the children and their family in order to determine what services can be provided to them that will build on those strengths;
(c) giving the children, where appropriate, and their family the opportunity to have input into what services should be provided to them, in a manner that best meet the purposes set out in subsection 1 (2) of the Act; and
(d) providing a clear list of expectations for the children’s family about what they need to do to have the children returned to them. This can be set out in a letter.
[89] And then, at paragraph 8 Sherr J. discussed the Court’s job. He wrote that it is the Court’s obligation to ensure that the purposes of the CYFSA are achieved. In a footnote to his decision, he said, “[t]his will be easier to do when a case is actively case-managed by one judge who can set out expectations for the parties, monitor compliance with those expectations and ensure that services are being provided for the children and their families consistent with the purposes set out in subsection 1 (2) of the Act.” To that comment, I would add that the Court’s obligation is impossible to meet unless the Court is told, in advance, about what the Society is planning with the parents.
(3) The Importance Judicial Oversight in Relation to the Parents’ Rights In a Proceeding
[90] I am concerned about the lack of legal representation around the time that this move occurred. Ms. Place’s affidavit of January 7, 2022 says that she gave the parents Legal Aid Ontario’s website and the 1-800 number to call, and she “strongly encouraged” the parents to “follow through” with legal aid. She did this by email on November 22, 2022, four days before the meeting after which there was the move. That did not work. The parents did not have advice at the November 26, 2021 meeting. Returning the matter to Court would have ensured the parents had access to some advice and representation.
[91] Coming to Court can trigger a series of protections for a parent that they may not otherwise have when dealing with the Society out of Court. For example, when an issue is brought before the Court, the Court is able to lay eyes on the parents and ensure that they understand what they are said to have been agreeing to. The Court is able to probe into the plan (like it later did when the motion was argued on January 18, 2022) to see if it truly makes sense. The Court is able to make inquires into the parent’s ability to access legal representation and it regularly takes proactive steps to ensure there will be representation. Accessing duty counsel is one of the ways the Court achieves this in a child protection proceeding.
[92] Prior to the Covid-19 pandemic, when parents came to Court in person, duty counsel was available on site to assist them. During this pandemic, duty counsel do not always make themselves available proactively to assist parents, but the Court can call them in. While Ms. Place gave the parents a website and a 1-800 number before the meeting, I note she did not take steps to have duty counsel available for the meeting. Duty counsel may very well not provide such a service to parents, out of court. Even if they do, the benefits of Court oversight and regular court appearances are clear; the Court is able to ensure that parents’ rights are being protected.
[93] On the one hand this case has been before the Court for a few months and the parents still do not have lawyers. Perhaps they should have taken better steps before to get counsel. However, until the relocation issue arose, there was a placement being maintained and the parties were working with Ms. Place, cooperatively according to her, in Durham. The proposed move changed things. That should have reinvigorated the need for a lawyer.
[94] The parents who come before this Court in child protection proceedings are amongst the most vulnerable of litigants in Ontario. Many parents in child protection proceedings need additional assistance. The parents in this case are no different. This family has struggled with conflictual relationships, poverty, housing instability, mental health issues and addiction, all of which have impacted the child. The Society should not expect just parents to grasp the consequences of what is going to be discussed and the consequences of not being represented.
[95] At the attendance before me on January 18, 2022, mother clearly said she wanted to retain counsel, yet she still has not done so. In the context of this new, significant plan for a move, more ought to have been done to help the mother before the move occurred. The Society cannot seriously expect that telling a parent to call Legal Aid four days before a meeting would actually result in that parent retaining counsel, and having that lawyer be sufficiently up to speed, to offer meaningful help.
[96] In short, when the Society fails to bring important issues like this before the Court, parents get deprived of the benefits of Court oversight. The Court gets deprived of the ability to assess the parents’ understanding of purported agreements and to assess whether a plan is in a child’s best interests. The Court is unable to ensure a parent has access to representation, and other services.
(4) The Importance of Judicial Oversight in Relation to the Child’s Rights in a Proceeding
[97] The Court appoints lawyers for children in child protection proceedings when it is desirable to protect a child’s interests. See section 78 of the CYFSA. The Court should have heard from counsel for the child in this case, before the move.
(5) The Court Is the Ultimate Decision-Maker About Best Interests
[98] While all those involved in proceedings have a role to play, the Court is the ultimate decision maker when it comes to what is in a child’s best interests.
[99] There is now the very real problem, exacerbated by the move itself, of how the mother and the child will actually be able to have a meaningful relationship with each other, now in light of the distance, the ongoing protection issues in this case, and this family’s limited resources.
[100] The Court expects the Society and the parties to participate properly going forward in the Court’s process, and to participate in solving this problem, but not unilaterally.
PART IV: ORDERS
[101] I make the following temporary without prejudice Orders:
(a) The parents are to be present for all future court appearances unless there is an unforeseen emergency;
(b) There is a factual dispute as to what transpired respecting this move, which may be relevant to the legal advice that either parent wishes to obtain. Therefore, all of the Society’s case notes of its interactions with the parents and others pertaining to any discussions about this move, the move itself and subsequent events are to be provided to the parents, to the OCL and to the Court for the next date when this matter returns to Court;
(c) There is a gap in the historical information about this family. The Society is to obtain and file with this court, a proper summary of the prior proceedings, copies of all final protection orders made in the prior proceedings before the Court in Goderich, and copies of all Statements of Agreed Facts associated with those Orders;
(d) The Order of Justice Brown dated July 7, 2020 and my Order of September 14, 2021 shall be varied to permit the child to reside primarily with his father in Huron County;
(e) Pending further argument after the mother retains counsel, the child shall remain in the joint custody of both his parents;
(f) The Durham Children’s Aid Society or its designate shall be responsible for the supervision;
(g) The other terms and conditions in the Order of Justice Brown dated July 7, 2020 shall remain in place;
(h) If the Society wishes the parents to participate in any other programming not captured by these terms and the parents do not agree, then a proposal with details is to be put before the Court for a discussion in case management;
(i) Based on the submissions given to the Court during the motion, the Society worker is ordered to have discussions with the parents with a view to satisfying herself that the child is given access to a cell phone or other technology, so that the child may have regular telephone and other virtual contact with his mother. The father is not to restrict the child’s access to a telephone. If reasonable arrangements cannot be worked out, then the Society is to consider other options to make the necessary technology available for the child. And if necessary, I will hear submissions about whether a further order is necessary;
(j) Based on the submissions given to the Court during the motion, the Society is also to immediately enter into discussions with the parents with a view to making arrangements for the mother to have some in person visits with the child between now and the return to Court. The discussions are to involve any safety terms that might be needed, based on the current evidence of the mother’s relapse. The Court requires an update as to what was put in place between now and the return date, including the safety terms put in place, along with an update about how the visits went. This is to be done by way of affidavit. If necessary, I will hear submissions about whether a further order is necessary;
(k) The mother may continue to source legal counsel on her own if she wishes, but as of January 18, 2022 she did not have counsel. Katharina Janczaruk is the current president of the Ontario Association of Child Protection Lawyers. A copy of this decision is to be sent to Ms. Janczaruk;
(l) If the mother still does not have counsel, the Society is to contact the mother and ask for her consent to release her name and contact information to Ms. Janczaruk. If the mother consents, the Society shall immediately provide that information to Ms. Janczaruk;
(m) I ask Ms. Janczaruk if she will, as a friend of the Court, contact the mother and to discuss the issue of legal representation by a child protection lawyer who represents parents;
(n) For Ms. Janczaruk’s information, the mother told the Court that she has started the process of applying for legal aid and she anticipated getting a certificate soon. If she does not and/or she is unable to obtain one, I ask Ms. Janczaruk to discuss with the mother the option of pursuing state funded counsel, how to go about that and who might assist her;
(o) I also ask that someone from the Ontario Association of Child Protection Lawyers provide similar assistance to the father, if he requests it. For example, Ms. Janczaruk might ask a lawyer involved in the Association to assist here too. If such a lawyer contacts Ms. Place, Ms. Place is to then take steps to get the father’s consent to the release of his contact information. Counsel for the Society advised the Court that she thought the father was eligible for legal aid, too;
(p) The return date in this matter is set for March 15, 2022 @ 10 AM. That date is set for this matter to be spoken to, but if the parents file responding material on this motion, or if they are otherwise prepared to address the additional terms and conditions sought by the Society, the motion may be argued if there is sufficient time; and
(q) Costs of this motion are reserved, if costs are being sought by either parent against each other or against the Society.
Justice Alex Finlayson
Released: January 26, 2022
OSHAWA COURT FILE NO.: FC-21-00000023-00
DATE: 20220126
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Durham Children’s Aid Society
Applicant
- and –
P.A.
Respondent mother
- and -
D.A.
Respondent father
REASONS FOR DECISION
Justice Alex Finlayson
Released: January 26, 2022
[^1]: That may have been due to the fact that counsel for the child needed an adjournment (according to Society counsel). [^2]: The mother would later tell the Court on January 18, 2022 that the discussions occurred over a longer period of time, and she was excluded until the plan was already worked out. [^3]: I also made a scheduling Order for the exchange of motion material, which I need not repeat here. [^4]: Amendments to the Children’s Law Reform Act and the Divorce Act have since been made. They have changed certain aspects of the law respecting relocation. [^5]: In Children’s Aid Society of the Region of Waterloo v. M.M. and J.B., 2021 ONSC 5686, the Court adopted Sherr J.’s analysis but with references to these newer statutory frameworks. [^6]: On the particular facts of the particular case before him, Sherr J. did authorize the move despite of these comments.