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 pparent 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-23-13

DATE: 20230821

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Durham Children’s Aid Society

Farrah Manji, for the Applicant

Applicant (the “Society”)

• and -

D.F.

On her own behalf

Respondent Mother

• and -

A.V.

Ann Velez, for the Respondent Father, A.V.

Respondent Father

• and -

C.S.

On his own behalf

Respondent Father

HEARD: May 12, June 9, July 10 and July 23, 2023

JUSTICE ALEX FINLAYSON

PART I: OVERVIEW

[1] On May 10, 2023, the Durham Children’s Aid Society (the “Society”) removed three children, a boy named J. T. L. F-V., who is almost 10 years old (“J.”), a girl named A. F-S., age 4 (“A.”), and another girl named D. F-S., age 1 (“D”), from the charge of the Respondent parents. The Society effected the removal in circumstances of chaos. It did so after first having chosen to work with this family for years on an out of court basis, without any judicial oversight over several significant protection concerns that have gone unaddressed. What prompted the removal on May 10, 2023, was a call from the maternal great grandmother (the “great grandmother”), with whom the mother and the children were then living,[^1] to advise that the mother was trying to leave the home with all three children.

[2] The first appearance of this protection application proceeded on May 12, 2023. The Society sought orders placing all three children with the great grandparents on a temporary without prejudice basis, with terms of supervision. The Society also sought orders for supervised access for the parents.

[3] A mere two days after the removal, the Society additionally asked to add the great grandparents as parties to this proceeding, on the basis that the Court was going to approve the proposed placement with them, even if just on a temporary without prejudice basis. The Society is of the view that this would make them “parents”, and therefore statutory parties as defined in the Child, Youth and Family Services Act, 2017 (the “CYFSA”): see also Children’s Aid Society of London and Middlesex v. T.E., 2023 ONCA 149. The great grandparents were neither in Court on May 12, 2023, nor had the Society made any arrangements for them to receive legal advice before it took this step.

[4] The Society initially relied on the affidavit of child protection worker Robyn Hobbs sworn May 12, 2023. Ms. Hobbs’ affidavit was replete with gaps, in particular about the appropriateness of the proposed placement with the great grandparents. While the Society explained that it had to bring this matter before the Court very quickly after the removal and that it had designated the great grandparents’ home as a Place of Safety, I note again that the Society had chosen to work with this family for years before hand.

[5] The list of protection concerns identified in the protection application are at least fourfold. First, both the mother and C.S. have, and continue to experience significant mental health challenges. As the evidence unfolded over several appearances, the Court has been made aware that both have threatened to harm or kill themselves, and to harm the other. There have been hospitalizations under the Mental Health Act. The great grandmother has also been hospitalized at least twice, once in 2020 following a significant incident of serious violence over J.’s residential arrangements, and years earlier when she couldn’t cope with caring for an earlier generation of children in this family who had been placed in her care.

[6] Second, both the mother and C.S. have engaged in extreme conflict with each other, often in the presence of the children. There has been conflict, and violence, between the mother and C.S., and other family members, including A.V. and the great grandparents, too. There has been conflict between various family members and Society workers. There has been conflict between the parents and other family members who are not part of the Society’s plan, but some of whom may now wish to plan for these children.

[7] Although the Durham Regional Police Service (the “Durham Police”) had been called about this family numerous times, although paramedics had attended, and although the Society had in its possession some 17 occurrence reports of such incidents dating back to 2020 by the time it brought this matter before the Court, the Society would not share with the Court either the reports themselves, or even many of the details contained in the reports. This included not only information relating to the protection concerns justifying the removal, but also information relevant to the proposed placement sought. The Society’s position was based on a “practice” that it and the Durham Police have developed, based on their interpretation of their written Memorandum of Understanding entitled the “Child Abuse Protocol Between the Durham Children’s Aid Society, Dnaagdawenmag Binnoojiiyag Child & Family Services (“DBCFS”) and the Durham regional Police Services, Revised 2019” (the “MOU”). As it turns out, its other signatory, DBCFS, does not share the same interpretation about what can and cannot be shared with the Court, when a matter is brought before it.

[8] As a result of an order for the production of police records that I granted on July 10, 2023,[^2] the record before the Court now includes the 17 reports that the Society already had, two additional ones created after the first appearance, and over one hundred others that the Society did not have. The 17 reports reveal that some of the conflict was precipitated by arguments between the parents over their inability to manage their lives, and to parent. Some of the parental conflict escalated to the point of the aforementioned threats of suicide. Much of this happened in the great grandparents’ home during the last year, although not all of it. The conflict that did occur in the home was under the great grandparents’ watch, at a time that they were supposed to be a protective factor.

[9] Third, the Society alleges inadequate parental supervision of the children by the mother and C.S. Likewise, much of this inadequate parental supervision occurred in the great grandparents’ home, supposedly under their watch. Despite the several adjournments of this motion that this Court granted, there continue to be gaps in the evidence and thus almost no explanation about where the great grandparents were, and what they did to intervene, when this inadequate supervision, and much of conflict, was occurring.

[10] Fourth, both the mother and C.S., and A.V. too, have experienced housing instability either in the past, or currently. Although they made their home available, the great grandparents have contributed to the housing instability, having kicked out all three parents from their home at different times. One time, this happened when J. was just a baby.

[11] A fifth protection concern, not pursued by the Society but by A.V., pertains to drug use, mostly marijuana, although cocaine has also been alleged. The Court now has before it at least one police record, that suggests problematic marijuana use by persons in the great grandparents’ home, to which the children have been exposed. According to both A.V.’s and C.S.’ affidavit material, J. who is not yet 10 years old, already knows how to “pack a bong”. The Society was aware of A.V.’s concerns. The Society’s response to A.V. was that marijuana is legal, but should not be used in a caregiving role or in the home. The Court shares A.V.’s concerns about the children’s exposure to marijuana use and drug paraphernalia.

[12] In regards to the Society’s proposed placement, the Society says in the protection application that the mother identified the great grandparents “as part of the safety plan to care for the children”. While that may be have been so in the past, that was no longer the case by May 12, 2023. Quite to the contrary, on May 12, 2023, all three parents orally reported serious concerns about the great grandparents’ home, and the persons living in it.

[13] Indeed, the parents told the Court of significant allegations of criminal behaviour on the part of other family members who are either living, or lived in the great grandparents’ home. In particular, the mother has two adult brothers, J.L. and C.L. It has since been confirmed that C.L. either has or had criminal charges relating to drug trafficking, aggravated assaults, and other violent conduct towards a girlfriend. The status of these charges (ie. whether resolved, if so how, or whether still outstanding) is unknown to the Society. There are allegations that J.L. engages in drug use and other violent behaviour, too.

[14] Furthermore, as this case has unfolded, a much fuller history of multi-generational child welfare involvement into this family was revealed, although a proper assessment of it still remains to be done. To be precise, there have been removals of children by child welfare agencies across four generations of this family. There has been related police involvement along the way. When this motion was ultimately argued on July 31, 2023, the mother told the Court about the trauma she experienced as a young person. She attributes many of her mental health difficulties to having been raised in the home, and she does not want the cycle to repeat for her own children.

[15] When the Society asked the Court to place the children in the great grandparents’ temporary without prejudice care on May 12, 2023, the Society did not have a full understanding of much of the above. For example, the Society was adamant that C.L. was not in the home, yet as recently as January 26, 2023, the great grandmother was C.L.’s surety pursuant to a release Order from a criminal court relating to the assault on his girlfriend. The release order required him to live with the surety. The great grandparents, and J.L. have either not been fully transparent about this, or if they were, then the release Order was not complied with.

[16] The Society claimed to have done a walk through of the house and did not find drugs in the home. It has since been revealed that there are both marijuana and paraphernalia in the home, and the children have been exposed to that.

[17] Some of what the Court learned about the child welfare histories first came from A.V. after the first adjournment, as opposed to the Society in the initial material it filed.

[18] In light of the alarming allegations the parents made on May 12, 2023 and the Society’s inability to respond to them, this Court neither granted the placement that the Society sought on a temporary without prejudice basis, nor did it add the great grandparents as parties to this proceeding. I ordered all three children into care on a temporary without prejudice basis, with the access claimed in the Society’s Notice of Motion. I was not on May 12, 2023 in a position to determine that a placement with the great grandparents was appropriate under sections 94(2)(c) and 94(5) of the CYFSA. The additional evidence since provided over the course of three adjournments does not persuade this Court that a temporary placement with the great grandparents is any more appropriate now.

[19] For the reasons that follow, the children A and D. shall be placed in the temporary care and custody of the Society. The Society’s motion to add the great grandparents as parties to this proceeding is dismissed.

[20] J.’s circumstances are different. His father A.V., lives with his mother J.W. (the “paternal grandmother”). They have provided care for J. during significant periods of time in the recent past. While not without problems, the Society did not intervene during those past periods.

[21] That said, the Society’s failure to intervene in the past is not a basis on its own to place J. with A.V. now. The Court still has some concerns about A.V.’s plan, and frankly about his conflictual attitudes and interactions with others and the Society. J. also has educational needs that have gone unmet and which need to be addressed.

[22] So while I do not at this time rule out A.V.’s plan, I cannot today order it. The Court finds his plan to be premature. The Court intends to monitor A.V. and the Society, and to direct them to try to improve it, with a view to a placement with A.V. if all goes well.

PART II: ADDITIONAL BACKGROUND

A. The Family and Residential Histories of the Parents and the Children Now Before the Court

[23] A.V. was the first person to provide much of the family history to the Court in his affidavit of May 30, 2023, not Ms. Hobbs. A.V. explained that he was in a relationship with the mother from September 2013 to May of 2015. A.V. was a young father, just 18 years old when J. was born. He said he was in a caregiving role for J. in those early days, and for some of the time, he was a stay-at-home father.

[24] The mother and A.V. lived with various different people during this time frame. For two months between September 2013 and November 2013, they lived with the great grandparents. While there may very well be more to this narrative, A.V. said that they suddenly changed the locks and kicked the parents out of the home without explanation. J. was a baby at the time. A.V. explained that he had no contact with the great grandparents after that, until the significant incident of violence that occurred in September of 2020.

[25] At some point after A.V. and the mother left the great grandparents’ home, there was a time that they lived with the maternal grandmother, P.L. in Chatham. This happened in or around 2014. Even back then, there was significant conflict between the members of the mother’s family. For example, A.V. observed an incident between the mother, and her brother J.L. (who was also living there at the time and who now lives in the great grandparents’ home). There was a significant physical fight between the two. A.V. had to intervene to protect the mother, who he thought might be pregnant at the time.

[26] A.V. and the mother moved out of the maternal grandmother’s home after that; they remained in the Chatham-Kent area. A.V. said that his relationship with the mother broke down because the mother was “partying, drinking and getting high” with friends. He said there were brief intake-level involvements with child welfare authorities, but that never led to ongoing services. That said, the police reports subsequently obtained do reveal concerns about family violence between the parents.

[27] Apparently after this relationship ended, A.V. went to live with the paternal grandmother. The paternal grandmother was then living in the London area. A.V. explained that he lost contact with the child for about a year, due to some harassing phone calls. While he says that he was the victim of this harassment, he ended up getting charged due to the manner in which he said he would respond to those doing the harassing, which I gather the police found to be criminally threatening.

[28] According to A.V., there were child welfare proceedings concerning J. in Chatham-Kent in around 2015 and into 2016. A.V. said these proceedings resulted in J. being removed from the mother’s care. A.V. said that he did not even learn of these proceedings until 2016, and when he did, the documents he received were heavily redacted. Apparently, these proceedings resolved with J. being returned to his mother’s care, and A.V. had some access.

[29] A.V. said that he was able to develop a relationship with J. after this, but only when the family still lived in the Chatham-Kent area. At some point during the years that followed, the mother got into a relationship with C.S., with whom she would later have A. and D. (The mother is currently pregnant with a fourth child).

[30] In about 2019, the mother and C.S., with J. and A. (who had been born by then), moved to Durham. Contrary to the impression I formed from Ms. Hobbs’ initial affidavit of May 12, 2023, the Society’s out of court involvement with this family does not just date back to August 2020. Rather, there was an open child protection file with the Chatham-Kent agency at the time of the move, and that file was transferred to Durham. After the transfer, the Society would close its file, only to reopen and close it again, before the latest, long-standing involvement.

[31] According to the affidavit of A.V.’s former partner, N.J., she and A.V. were in a relationship in or around 2016 They have one child together named J-J. He is J.’s half-brother.

[32] N.J. has six children in total. Because N.J. had also been in a relationship with A.V.’s brother at some point and had children with him too, three of her other children are J.’s cousins.

[33] A.V. ended up moving to Durham too after the mother and C.S. came here. He ended up living next to N.J. They were neighbours as recently as April of 2023, when A.V. left his former home.

[34] I include these facts about the children in N.J.’s household, and their proximity to A.V.’s former home, as they are relevant to the allegations that A.V. did not comply with court orders in the past. These facts also relate to the access terms that I have been asked to consider by counsel for the Office of the Children’s Lawyer (the “OCL”).

[35] In 2021 and 2022, while the A.V. and N.J. were still next door neighbours, the mother and A.V. came before this Court on their own in proceedings under the Children’s Law Reform Act (the “CLRA”), as opposed to their issues being dealt with in a protection proceeding. It seems that one of the issues before the Court was the fact that A.V. had kept J. in his care due to protection worries that he had. It also seems that the mother had raised some issues with N.J.’s home, and she was concerned about the fact that the father was allowing J. to attend at the home unsupervised.

[36] In the final result of that CLRA proceeding, (ordered on consent on September 29, 2022), J. resided primarily with his mother again and the mother and A.V. shared joint-decision making. But restrictions had been earlier imposed on J.’s attendance at N.J.’s home on an interim basis on June 8, 2021, and one such restriction continued on consent in the Final Order.

[37] The arrangement in the Final Consent Order of J. living with his mother was not stable. A little over one month later, the mother “placed” J. in A.V.’s care.

[38] Also during 2022, and unbeknownst to the Court when this protection proceeding first came before it, the Society agreed that A.V. was a suitable enough caregiver for N.J.’s six children, at least for a weekend during summer of 2022, when N.J.’s house was in a complete state of disarray. The Court only learned about the fact that the Society approved him as a caregiver for multiple children, when it reviewed the police records produced as a result of the Court’s production order of July 10, 2023. I find this omission to be relevant in light of the Society’s position that J. should not be placed with A.V. now.

B. The Violent Fight Between Several Members of this Family on September 26, 2020

[39] It is my impression that it was in or around September of 2020, that J. first began living with his father primarily. A.V. said that J. made some concerning statements to him about the mother. A.V. said that he also made reports to the Society at different times of marijuana use in the mother’s household, including that the mother and C.S. had marijuana bongs and other supplies out in the open and easily accessible by the children, and that they smoked marijuana while in a caregiving role. But according to A.V., the Society workers at the time were unconcerned about the marijuana.

[40] In any event, A.V. was not comfortable with J. returning to the home, so he kept him. While A.V. said he had the Society’s approval to act in this fashion, Ms. Hobbs has since denied this. J. continued living with his father until perhaps as late as the spring of 2021, when an interim Order was made, apparently on a motion in the CLRA proceeding, referred to above.

[41] In the mean time, there was a significant incident of violence over J.s’ residential arrangements that occurred on September 26, 2020, involving multiple family members. Although on September 27, 2020, the Society received a police report describing what happened, it did not initially share that with the Court in this proceeding either. In fact, the details of the incident were almost completely absent from Ms. Hobbs’ initial affidavit of May 12, 2023, and what she included was not in sworn form. Rather, the Court found a description of the incident buried in a letter that was attached as an exhibit to Ms. Hobbs’ affidavit. [^3]

[42] What Ms. Hobbs did say in sworn form in the body of her affidavit of May 12, 2023, was that that there had been conflict between the family. She said that the Society had received some sixteen police reports[^4] since the “opening” of its file in August of 2020 (without mentioning that the Society had previously closed its files twice). She did not attach or even really describe the contents of any of these other police reports either. While she did describe what the Society did as a result of certain police reports, her affidavit otherwise only describes the contents of the reports in the most general of terms. To explain these omissions, Ms. Hobbs said that the Society was “in the process of getting permission from the Durham Regional Police to release these in accordance with the protocol that the Society has with the Durham Police”, thereby depriving the parents of the ability to respond at the outset of this case, and painting an incomplete picture for this Court.

[43] The letter attached to Ms. Hobbs’ affidavit that described the fight was that of another worker Todd Rimmington, dated November 13, 2020. He had authored this letter almost two months after the incident in question. While there is a description of what happened in the letter, the purpose of Mr. Rimmington’s letter was actually to confirm “recent discussions about the Durham Children’s Aid Society remaining involved with you.” The letter goes on to outline concerns that were reported to the Society, and the Society’s concerns “should nothing change”. The letter then contained an outline of “the plan as we move forward”.

[44] The concerns in the letter were not just restricted to the fight. Rather, Mr. Rimmington listed that:

(a) The mother recently threatened to kill herself while visiting a friend and A. was present;

(b) The mother previously attempted to kill herself when she and C.S. were in conflict with one another;

(c) A.V. reported that J. said the mother hit him with a toy, as well as some past hitting from C.S.;

(d) A.V. reacted by refusing to return the child; and

(e) There was the significant fight.

[45] In regards to the fight itself, Mr. Rimmington wrote that that various family members responded to A.V.’s overholding of the child with self-help and violence. The letter says that the police had received multiple calls, including some from “concerned community members” when the mother, C.S. and the great grandmother attended to pick up J. Apparently, the great grandmother tried to force her way into the home. Apparently, there was a physical fight involving all of these parents and A.V.’s brother.

[46] The letter states that the great grandmother suffered a significant injury during the fight. The letter says that when the police arrived, the great grandmother was bleeding, and was initially “non-responsive”. The letter states that J. observed this, and ran to the next door neighbour’s house (N.J.) for safety.

[47] After glossing over this September 26, 2020 fight in the body of her affidavit, Ms. Hobbs went on to explain that between October of 2022 and the date of her May 12, 2023 affidavit, there were nine police reports that related to the mother’s mental health, to conflict between the mother and C.S., or to conflict between the mother and the great grandparents in the presence of the children.

[48] As a result of this Court’s Order of July 10, 2023, the Court now has before it the police report relating to this incident. According to it:

(a) One caller reported that 15 people were fighting;

(b) One caller reported that people were being thrown off “verandas”;

(c) There were children in the house;

(d) Someone was bleeding; and

(e) One caller said it was the great grandmother who “attacked” everyone.

[49] The Court also now has before it various competing accounts of what happened on September 26, 2020, and who was allegedly at fault. According to A.V., the great grandmother pulled J.’s hair during this incident. Ms. Hobbs has since said that the police could not determine who the aggressor was, but according to at least one caller to the police, it was the great grandmother. No one was charged following this significant fight.

[50] A.V. has now deposed, that the mother recently told him, that she had not wanted to come to the house back in 2020. She was content to let the Society investigate A.V.’s concerns in due course, but the great grandmother made her go there.

[51] This Court has been left to piece together evidence from different sources to try to figure out what happened in September of 2020. What is fairly clear, is that the Society was already involved with the family on an out of court basis and it even chose to close its files twice before this incident happened. There was no governing parenting order or agreement in place when this incident happened. A.V. kept J. in his care in these unstable conditions, setting the stage for this significant incident amongst a number of family members. There is some evidence to suggest that it was the great grandmother’s idea to go to the home in the first place, and that she was the aggressor. She ended up seriously injured in the process.

D. The Society’s Plan After the September 26, 2020 Fight

[52] Even after this, the Society did not see fit to bring a protection application. Instead, the Society’s plan, set out in the letter of November 13, 2020, was that it would meet with the parents regularly, that the parents were to sign releases of information, that the parents were not to argue in the presence of the children, that the parents were to make sure that J. knows he is “safe and loved”, that there should be some counselling for J., “if needed”, that the mother was to continue working on her mental health, and that the mother was to send the children to the great grandparents’ house if the mother was overwhelmed and if C.S. was not available. How this plan was implemented, if at all, is not detailed in Ms. Hobbs’ affidavit of May 12, 2023.

E. The Children’s Law Reform Act Proceeding in 2021 and 2022

[53] The next event was the CLRA proceeding between the mother and A.V. While the father said in his factum that the Court ordered J. back into his mother’s care on a motion in April of 2021, no one provided me with any Endorsement to this effect or any explanation of the evidence that what was put before the Court. Rather, attached as exhibits to Ms. Hobbs’ affidavit of May 12, 2023 are the Endorsement of Fryer J. dated June 8, 2021 made at a case conference, and the Final Order of Fryer J. dated September 29, 2022 subsequently made on consent by 14B Motion.

[54] A.V. represented himself in that proceeding. A local Durham lawyer named Stephen Cooper represented the mother. I will have more to say about this below, as Mr. Cooper tried to act in this protection proceeding, even though he was in a conflict of interest.

[55] Fryer J.’s Endorsement of June 8, 2021 reveals that that particular case conference mostly pertained to child support, and not parenting. The Endorsement did document that J. was back living with his mother at that point, perhaps because of what happened in court in April. The mother apparently raised issues about J.’s hygiene while in his father’s care, and she alleged that J. had returned from visits with “bruises and scratches”. It appears that the mother also raised concerns about J. visiting N.J.’s house, when in the care of his father, perhaps contributing to these concerns.

[56] Fryer J. was critical of A.V. for not having filed a case conference brief. The Court otherwise commented that A.V. was dismissive and unhelpful in his attitude towards that particular proceeding.

[57] The only parenting Order that Fryer J. made on June 8, 2021, was to prohibit the father from taking the child to N.J.’s home, or from leaving the child in her care. The father now complains that this term was imposed at a conference, without his consent.

[58] Fryer J.’s Final Consent Order of September 29, 2022 continued the arrangement that J. would reside primarily with his mother. It set out that the mother and A.V. would have joint decision-making. It contained a parenting schedule consisting of alternating weekends, mid-week telephone or virtual contact on Wednesays, and various holidays. The prohibition on leaving the child in the care of the neighbour remained, although not the prohibition against taking the child there. There are also child support terms in the Order.

[59] Just a little over one month after Fryer J.’s Final Order of September 29, 2022, the mother could no longer care for J. and “placed him [back] in the care of his father”. And a little more than five months after that, the Society brought this proceeding alleging such concerns, that its position is that none of the parents, in particular the mother and C.S., but also A.V., should be caring for any of the children.

[60] The Society should not have left this part of this family to their own devices, to prosecute, what were essentially protection issues, in a case framed under the CLRA. The problems with leaving these parents to proceed under the CLRA should have been obvious. Already by the time that Fryer J. made the June 8, 2021 Endorsement and certainly by the time of the September 29, 2022 Final Order, there had been years of child welfare involvement, the significant incident of violence on September 26, 2020 involving multiple family members, more police calls over conflict between the mother and C.S., threats of self-harm, and as I will explain below, the mother and C.S. no longer even had housing of their own.

[61] Given that A.V. was acting on his own, the fact that he didn’t even file a brief for June 8, 2021, the fact that the Society was in possession of relevant evidence to which the parents did not have access, the nature of the court appearances or the processes that resulted in these CLRA orders, and given the fact that this Court was not even told the full story when this protection application began, it is unlikely that the Court was properly informed of all of the concerns, when it made those Orders.

G. The Mother, C.S. and the Children Moved Into the Great Grandparents’ Home in June of 2022

[62] In June of 2022, about two months before the Final Consent Order, the mother and C.S. moved into the great grandparents’ house with J. and A., and their new baby D. Ms. Hobbs’ affidavit of May 12, 2023 said this occurred, because the mother and C.S. were evited from their housing, and had no other place to go.

[63] Although I recognize that she said this orally, and in unsworn form on May 12, 2023, the mother nevertheless told the Court that when she and C.S. lost their housing in June of 2022, she did not feel comfortable having the children live in the home of the great grandparents. She said she had serious concerns about the home environment and others in the home. The mother told the Court that Society “went against her wishes” and refused to allow her and the children to go to a shelter. No protection proceeding was brought at this point either.

H. The Child J. Is “Placed” With the Father for Three Months Between November 2022 and February of 2023, While the Mother Moves Out of the Great Grandparents’ Home

[64] By November of 2022, the mother asked A.V. to care for J., because she had to leave the great grandparents’ home. In her initial affidavit of May 12, 2023, Ms. Hobbs agreed that this happened “due to ongoing conflict between [the mother and C.S.].” Apparently the great grandparents asked one of the parents to leave the residence to lessen the conflict, and it was decided that the mother would leave.

[65] According to Ms. Hobbs, it was the mother who “placed” J. with A.V., not the Society. The other two children were left behind, in C.S.’ care, still in the great grandparents’ home. Although the Society is not now supporting J.’s placement with his father, the Society did not see fit to intervene at the point of this “placement” either. Nor did the Society take further interventionist steps when there continued to be issues with J.’s education in the months that followed.

[66] While the Society may not have been involved in effecting this “placement” it was involved in bringing it to an end. A.V. said that in February of 2023, the Society told him that J. would be going back to live with his mother. According to Ms. Hobbs’s affidavit of May 12, 2023, by February of 2023, the great grandparents “allowed” the mother to return to the residence. Ms. Hobbs then said, without explaining how, that “J. also returned to the residence” at this time. A.V. says that he questioned the Society’s decision that J. had to go back to his mother in February of 2023, but he did not get an explanation.

[67] During the argument of the main motion on July 31, 2023, the Court asked the Society to explain this. Ms. Manji said that the Society was not going to counsel the parents not to follow the governing Order of Fryer J. dated September 29, 2022. Yet Fryer J.’s Order had already been altered, under the Society’s watch. And during those three months, Ms. Hobbs directed what access would look like for the mother, including supervision for a time. This was not what was contained in Fryer J.’s Order. There is no evidence before me that any of the parents were told to get legal advice.

I. C.S. Moved out of the Great Grandparents Home in April of 2023

[68] According to Ms. Hobbs’ affidavit of May 12, 2023, by April of 2023, one of the parents had left the great grandparents’ home yet again. This time, the mother reported that C.S. was no longer living there.

[69] According to Ms. Hobbs, “they” [it is not explained who “they” are] decided that this was the best option for the family, as there were too many people in the home, matters were escalating, and there had been some kind of altercation the weekend before.

J. The Removal on May 10, 2023

[70] On May 10, 2023, Ms. Hobbs determined that the children needed to remain with the great grandparents, after the great grandmother called to report that the mother was trying to leave with the children. Apparently during the incident that was unfolding, the great grandmother had to lock herself into the bathroom with A. and D. This is what finally triggered the Society to bring this proceeding.

PART III: PRIOR LEGAL PROCEEDINGS IN THIS ROUND OF THE LITIGATION

A. The First Appearance on May 12, 2023

[71] Despite my comments about the gaps in the Society’s evidence throughout these reasons, the Society did provide sufficient evidence at the first appearance to justify the first part of the legal test at a temporary care and custody hearing. The risk of harm to these children was obvious. But the Court must also be satisfied that the proposed placement is appropriate and that the children would be safe, in accordance with all applicable legal principles that apply at a temporary care and custody hearing. Although Ms. Hobbs’ affidavit of May 12, 2023 states that the Society sees the great grandparents as a “strength of the family”, there was little to no elaboration about this.

[72] At the first appearance, the mother and/or A.V. [^5] advised the Court of a number of concerns about the Society’s proposed placement. Albeit in unsworn form (given that the motion had just been brought that day), one or the other of them told the Court about the incident of violence on September 26, 2020, they expressed concerns that there are drugs in the great grandparents’ home, they told the Court that until recently, C.L. had been living in the home although he had been incarcerated, they told the Court that C.L. had been charged with “attempted murder” and drug charges, and they told the Court that there had been conflict between J.L. and C.L. over a “drug feud”. The Court was also told that the great grandfather had been assaulted and installed cameras for his own protection. The mother advised that J.L. threatened to kill her and the children.

[73] The Society was caught by surprise. In response, the Society said that it had designated the great grandparents’ home as a place of safety. The Society advised this entailed a “walk through” of the entire home, during which drugs were not found.[^6] This also entailed having a discussion with the great grandparents about certain matters, and asking them and J.L. to get a criminal record check done. Although there had been years of involvement at this point, these matters had not been thoroughly canvassed.

[74] The Society lacked knowledge of the details of C.L.’s charges, his recent incarceration or any release terms. In fact, the Society said that it had only been informed about C.L. earlier that day, even though there is now evidence that he was in fact required to live in the home very recently. The Society said it had not been made aware of any concerns about J.L. either, although it would now look into it.

[75] In response to questions from the Court about the police reports that the Society already had, the Society said:

We do have the police reports. There is a protocol that we have with Durham Regional Police, and it does require us to obtain their approval in terms of using these police reports as evidence. I am aware of Your Honour’s decision in relation to that. We’ve included the information in terms of what the conflict is....

[76] I ordered the children to be taken into care. I adjourned the request to add the great grandparents as parties on that date. I impressed upon parents (and the duty counsel assisting them) of the need to attend court next time with lawyers. I also told the parties that I was prepared to re-arrange my schedule, to have this motion brought back on very quickly, given the Society’s request that the children not be in care. But the Society was unable to proceed that quickly, given the amount of missing information. Therefore, the Court put the matter over to June 9, 2023.

B. The Second Appearance on June 9, 2023

[77] By the second appearance, A.V. had counsel. He filed a detailed affidavit, along with an Answer and Plan of Care, setting out much of the history that I described above. Ms. Hobbs filed an updating affidavit after A.V. filed his affidavit.

[78] The mother retained Mr. Cooper, who had represented her in the prior CLRA proceedings. Mr. Cooper acknowledged the mother’s Legal Aid Certificate, only to come to Court and declare a conflict of interest. It was revealed that Mr. Cooper represented “the mother’s brothers” in connection with various criminal matters, including pending ones. This put him in a conflict of interest. In the result, the mother was now without counsel or even an unacknowledged legal aid certificate. C.S. did not have counsel.

[79] The Society was not ready to proceed. In its Confirmation Form, the Society explained that it would now be completing a kinship assessment. The grandparents and J.L. would be taking steps to obtain their Vulnerable Sector Checks, still not completed. As a result of the kinship worker’s first meeting with the great grandparents (after the first appearance in this case), the Society learned that the great grandparents had prior child welfare involvement and that there had been a parenting capacity assessment done in the Chatham-Kent area in relation to them. The Society wanted to get this assessment and review that prior child welfare history. None of which had been shared with the Court on May 12, 2023, when the Court was first asked to place these children with the great grandparents.

[80] The Society also advised the Court that it would now have to bring the motion for disclosure of police records because of the MOU and the process it said had to be followed. Notably, between May 12, 2023 and June 9, 2023, the Society had asked for, but the Durham Police would not provide, its consent to the Society using the 17 reports already in its possession. The Society warned the Court that as a result of the proposed motion, it might also receive additional documents or reports that had not been sent to the Society at all, which would have to be reviewed.

[81] The parents did not oppose another adjournment, although A.V. did ask that the motion be heard before the start of the school year, as his plan would entail a change to J.’s school. The Court adjourned the matter to July 10, 2023 to address the Society’s motion for the production of police records. The Court ordered that the MOU was to be filed, and it required the Durham Police to file a factum and to attend and make submissions. The Court otherwise adjourned the temporary care and custody motion to July 31, 2023 for a half day. The Court made a scheduling Order for the filing of material for that motion. The Court also appointed the Office of the Children’s Lawyer (the “OCL”).

C. The Society’s Motion for Production of Police Records Heard July 10, 2023

[82] On July 10, 2023, the Society brought three motions for production of police records from the Durham Regional Police Service, the Chatham-Kent Police Service and the Toronto Police Service regarding the parents and various other family members. These motions either proceeded on consent, or unopposed by the parties, the OCL, the various police forces, and the other non-party family members to whom the records pertained.[^7] Two lawyers attended on behalf of the Durham Police.

[83] At the outset of the hearing of this motion, counsel for the Durham Police advised the Court that in addition to the 17 reports that the Society already had, there were some additional 116 reports that would now have to be redacted and disclosed. This was in addition to the other records that would come from the other two police forces as a result of the Society’s other motions against them.

[84] The Court granted the orders for production sought on July 10, 2023, on various terms set out in the Notices of Motion. I made a new scheduling Order for the return of the main motion, in part to take into account the new evidence to be obtained. I also reserved the right to release some written reasons respecting this motion for production. I do so now in this decision.

PART IV: PRELIMINARY PROCEDURAL ISSUES ON JULY 31, 2023

A. The Mother’s and C.S.’s Request for Another Adjournment

[85] There were three duty counsel available to assist the parents on May 12, 2023, although the Court was told that C.S. was ineligible that day, for reasons that I do not understand. Nevertheless, undertakings were made by duty counsel to actively help the two parents who qualified to find counsel, quickly.

[86] As I have also already indicated, A.V. quickly retained counsel. A.V. and his counsel did a tremendous job in a short period of time to put together helpful affidavit material and a factum, in support of A.V.’s position that J. be placed in his care.

[87] As set out above, Mr. Cooper improperly acknowledged the mother’s Legal Aid Certificate, only to immediately declare a conflict of interest. Duty counsel for the mother told the Court on July 31, 2023 that Legal Aid Ontario had just approved a change in solicitor. Mr. Cooper’s conduct interfered with the mother’s ability to find representation. C.S. did not have counsel, but he filed two affidavits sworn July 4, 2023 on his own.

[88] In this context, on July 31, 2023, both the mother and C.S., assisted by duty counsel, sought to adjourn this motion for the fourth time. In asking for another adjournment, duty counsel told the Court that they would not assist the parents with the main motion, if the adjournment was denied.

[89] Each of the Society, A.V. and counsel for the OCL opposed the adjournment. The Court had to balance the mother’s and C.S.’s lack of representation against the other interests engaged in child protection cases, including the fact that two of the three children in care are very young, and there are tight timelines that must be adhered to in cases of this nature. Each of the Society and the OCL intended to argue that the children should come out of care. A.V. had previously agreed to the earlier adjournment, on condition that the temporary care and custody hearing be heard before the start of the school year. The Court denied the adjournment.

B. The Society’s Request to File Additional Affidavit Evidence on July 31, 2023

[90] The Society was still seeking an order adding the great grandparents as parties to this proceeding on July 31, 2023. This time, and unlike on May 12, 2023, the great grandparents attended. They had counsel, Ms. Scovino, with them.

[91] Immediately after I denied the mother’s and C.S.’ adjournment request, the Society then sought to introduce a further affidavit of the great grandparents that Ms. Scovino had prepared. The motion was argued on a Monday (July 31). Apparently the new affidavit had just been served on July 28, 2023, being the Friday before.

[92] Already by this point, the Court had made two different scheduling Orders, which included provision for material about the great grandparents’ status to be filed. Had I accepted this late in the day evidence, the parents would have had a right to respond. The Society could have obtained evidence from the great grandparents earlier. The Society conceded that there was nothing in the affidavit that was not known to it, or that it could not have put before the Court itself. The Court did not accept the affidavit.

C. The Mother’s and C.S.’ Participation During the Motion

[93] In the alternative to her request for an adjournment, the mother opposed the placement of the children with the great grandparents. Her preference is for the children to remain in care until she is in a position to resume caring for them. C.S. recognized that he did not have a viable plan before the Court.

[94] The Court gave both parents considerable latitude to make submissions, over the objections of other counsel when the parents strayed from four corners of the evidentiary record before the Court. The Court also participated in discussions with both parents (and the Society) about what they would need from the Society in the future, to help them address the protection concerns and to better plan going forward. Terms about that are set out below.

PART V: ISSUES AND ANALYSIS

A. Applicable Legal Principles Concerning the Children’s Temporary Placement

[95] This motion is governed by section 94(2) of the CYFSA. It reads:

94(2) 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.

[96] Pursuant to section 94(4), the Court must not make an order under section 94(2)(c) or (d) unless the Court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause 2(a) or (b).

[97] Pursuant to section 94(5), before making an order placing a child in care under section 94(2)(d), the Court must consider whether it is in the child’s best interests to make an order under clause 2(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

[98] It is well established that at a temporary care and custody hearing involving a removal, there is a two-part test that the Society must meet. The Society must demonstrate, 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 person having charge of the child prior to the Society’s intervention, it is more probable than not that the child will suffer harm. Further, the onus is on the Society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order: see Children's Aid Society of Ottawa-Carleton v. T., 2000 CanLii 21157 (Ont. S.C.J.)

[99] The Court must choose the order that is the least disruptive placement consistent with adequate protection of the child as required by subsection 1(2) of the CYFSA; see also Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448. The degree of intrusiveness of the Society's intervention and the interim protection ordered by the Court should be proportional to the degree of risk: see Catholic Children’s Aid Society of Toronto v. J.O., 2012 ONCJ 269.

B. Who Had Charge of the Children?

[100] An issue has been raised in this case about who had charge of the children. This determination is important, because the CYFSA gives priority to the person who had charge of a child prior to society intervention under Part V of the CYFSA: see ¶ 30 of Children’s Aid Society of London and Middlesex v. S.D., 2008 CanLII 49155 (ON SC), [2008] O.J. No. 3796.

[101] The Society argued that the mother alone had charge of all three children. The OCL adopted this position too. The Society’s argument was based on the fact that C.S. moved out of the great grandparents’ home in April of 2023, about one month before the removal. The great grandparents were only assisting the mother when they were not working. A.V. was not sufficiently involved in J.’s care to give him charge of him either, according to the Society. While he did have joint-decision making under Fryer J.’s Final Order of September 29, 2022, the Society pointed out that decision-making does not necessarily mean charge. The Society said that at the time of its intervention, A.V. was only exercising alternate weekend access. Alternatively, the Society submitted that the great grandparents had charge of the children too, along with the mother.

[102] A.V. argued that he had charge of J., in part by virtue of the joint decision-making in Fryer J.’s Order. But his argument was broader than that. He argued that he was not aware of the removal on May 10, 2023 until after it happened. Once he found out, he did not delay in retaining counsel or fully participating in the proceeding. He also argued that he participated in other aspects of J.’s life beforehand.

[103] At ¶ 22-32 of Children’s Aid Society of London and Middlesex v. S.D. , Harper J. canvassed the case law respecting who has charge of a child. The thrust of the analysis is that the meaning of “charge” is different from “custody”. To have “charge” there must be some evidence that a person has an active relationship with the child that includes care and responsibility. It is something more than physical possession or limited incidents of care.

[104] The Court is not limited to determining that only one of the parents had charge. As Harper J. also wrote at ¶32 of Children’s Aid Society of London and Middlesex v. S.D., “[i]t is possible that more than one person had the charge of the child immediately before intervention and they subsequently compete for the return of the child to them at a temporary care hearing. In that case the court must consider the risk of harm of returning the child to either person.”

[105] In advocating its principal position that only the mother had charge, the Society relies on C.A.S. v. J.M., 2021 ONSC 1716, in which Piccoli J. found at ¶76 that the maternal grandparents and the mother had charge of the child, but not the father. Piccoli J. referred to the father as an “access parent”. Notably, Piccoli J. also said in obiter, that she might have decided the issue differently, if the father had primary care or if he was a joint custodial parent.

[106] In my view, the Society’s focus on who was living in the home on May 10, 2023 was too narrow. Moreover, by choosing to act outside the ambit of a protection proceeding for so long, the Society has contributed to the complexities around this question who has charge. There is the related concept of self-help, which has relevance to the question now before the Court. I would also not accept the Society’s characterization of A.V.’s involvement in J.’s life either, to deny him the benefit under the legislation of a person having “charge”.

[107] For example, at ¶63-69 of Children’s Aid Society of Peel Region v. A.C., 2015 ONCJ 482, Parent J. found that the father had charge of the children, as did their maternal grandparents. Somewhat similarly to this case before me, Pawagi J. had earlier granted an order under the CLRA for sole decision-making in favour of the mother, but on condition that she give the father notice and solicit his input beforehand. The father otherwise had access under that Order.

[108] At some point after this, and after the Society had opened a file, the mother voluntarily placed the children in the care of the maternal grandparents, without notice to the father. Two months later, the Society commenced a protection application for a supervision Order with the grandparents.

[109] In determining that the father also had charge of the children despite their being in the care of the grandparents at the time of the protection application, Parent J. based her decision on the fact that the father had a caring relationship with the children. She referred to the fact that he had spent time with them. She also relied on the fact that he had the legal authority to provide input into major decisions affecting their well-being.

[110] Notably, Parent J. made this finding about charge, even though the father had the children in his care for less time than the mother, just like in this case before me. She pointed to the fact that the mother had not abided by the conditions in the earlier Order prior to making sole decisions about the children, particularly that she had changed the children’s primary residence from her home to the home of the maternal grandparents without notice to or consultation with the father.

[111] In Catholic Children’s Aid Society of Toronto v. D.A., I determined at a temporary care and custody hearing that the mother had charge of the children, where children had been removed from the mother’s residence in November of 2018, but the Society had not brought the matter before the Court until January 31, 2019, some two months later despite section 88(a) of the CYFSA which required it to do so within five days. By the time of the motion, the children were in the care of the father. Pawagi J. made a similar determination at the subsequent trial under section 101(3) of the CYFSA.

[112] Importantly, in Catholic Children’s Aid Society of Toronto v. D.A, the mother only consented to the children going to stay with the father for the weekend; she did not consent to the children remaining in his care for longer. The Society’s intake worker told the mother that if the children did not go to the father, they would be “placed in foster care”. She did not tell the mother she could consult a lawyer. The mother twice again objected to the children remaining with the father in December and January, before the Society saw fit to bring the matter to Court.

[113] At trial, the father argued that the date of intervention was January 31, 2019, and not the date in November. Pawagi J. disagreed. She also relied on the fact that the mother had an underlying sole custody order, whereas the father had access only.

[114] There was an appeal of Pawagi J.’s decision on this point. Pawagi J. was upheld: see Catholic Children’s Aid Society of Toronto v. D.A., 2022 ONSC 1571 ¶ 52-65.

[115] In Children's Aid Society of Toronto v. A.(S.) and R. (M.), 2008 ONCJ 348, Spence J. found that two parents had joint charge of a child, where the mother improperly removed a child from Montreal to Toronto. He made this determination even though the child had been living with the mother for seven months at the time of the later removal by the Society. At ¶ 59, Spence J. concluded that where one parent has engaged in self-help, unilaterally depriving the other parent of his custody or parental rights, the parent so acting cannot acquire sole charge of the child.

[116] I find that the mother and C.S. had charge of all three children. I also find that A.V. had charge of J. jointly with the mother and C.S. I make these findings because:

(a) First, there is no question that the mother had charge of the three children. It is not disputed that the mother was the person with whom the children were living on May 10, 2023. But that is not the end of the analysis;

(b) The fact that C.S. left the home in April of 2023 is not dispositive as to whether he had charge. He had been in a caregiving role for all three children prior to that, during the time frames set out above, including during a different period of time when the mother left the household. The Society was already very involved when this happened. Many of the protection concerns pertain to C.S. in a caregiving role;

(c) The mother “placed” J. in A.V.’s care for three months between November 2022 and Febraury 2023. This happened under the Society’s out of court watch. While there is not evidence to suggest that the Society directed this placement, it then got involved in directing access during the three months that followed;

(d) Importantly, the only evidence before the Court is that the Society was the directing mind behind this placement coming to an end. As in the case earlier before myself and Pawagi J., there is no evidence here that the Society told any of these parents to get legal advice when any of these decisions were taken. The father questioned the Society’s direction that J. was to be returned, which he says went unanswered; and

(e) Before that, A.V. had also been in a primary care giving role for a considerable period of time in 2020 into 2021. He obtained an order for joint decision-making in the Children’s Law Reform Act proceedings in 2022. He was not just an access parent; he played an active parenting role. He participated in other aspects of J.’s life. For example, he made reports to the Society and the police when he was concerned for J.’s (and other children’s) well-being. He had a meeting with J.’s principal only a few days before the removal on May 10, 2023, regarding J.’s educational needs.

[117] In regards to the Society’s alternative argument that the great grandparents may have also had charge, there is no evidence of that. There is no evidence that they exercised any degree of authority and responsibility over these children, other than merely providing housing.

[118] Even if I am wrong in my assessment about who had charge of the children, for example because only the mother had charge of the children, or because only the mother and C.S. had charge, but not A.V., the outcome of this motion would not change. Neither the mother, nor C.S. have a viable plan before the Court.

[119] The only plan before the Court for all three children is the Society’s plan with the great grandparents under section 94(2)(c). A.V. has a competing plan for J. only. While I must consider a return of J. to A.V. first based on my finding that A.V. had joint charge of him, even if A.V.’s plan was to be considered under section 94(2)(c) instead, I would not find it to be on an equal footing with that for a placement with the great grandparents. To explain this, I will provide my analysis of the plan with the great grandparents first. There are a myriad of questions and concerns with it.

C. Analysis Respecting the Society’s Plan for a Temporary Placement with the Great Grandparents

[120] The Court has numerous questions and concerns about the viability of this proposed placement, and the children’s safety were the Court to order it. They are sixfold.

(1) What Is the Truth Behind Who Lived, Currently Lives or Will in the Future Live in the Great Grandparents Home?

[121] The Society had a concerning lack of information about the others living in the great grandparents’ home when it designated the great grandparents’ home to be a place of safety. The information that it (and the Court) now has about this, is still a moving target.

[122] On the one hand, I am now told both the great grandmother’s and J.L.’s Vulnerable Sector Checks were negative. The great grandfather has a pending charge for the failure to remain at the scene of an accident. He has two charges from 1979, for possession of marijuana for the purposes of trafficking and failure to appear, which the Society pointed out were from over 40 years ago. He was incarcerated for two months at the time. And according to Ms. Mullholland’s affidavit sworn July 19, 2023, only the great grandparents and J.L. are the “current” residents of the home.

[123] But just because there is some evidence that only the great grandparents and J.L. now live in the home, that has not always been the case. The mother’s brother C.L., who was required to live in the home in recent times when the children were also there, either faced or is currently facing significant criminal charges.

[124] Largely consistent with what the parents told the Court at the first appearance, the Society has now filed a supplementary affidavit sworn July 28, 2023, which reveals:

(a) C.L. had been charged with aggravated assault, possession of a weapon, breach of probation and related charges. These charges apparently related to a stabbing in August of 2019, in which the lung of the victim was punctured;

(b) On December 28, 2022, C.L. was charged with an assault and mischief relating to an incident with his girlfriend; and

(c) On February 16, 2023, C.L. was charged with possession for the purposes of trafficking and a failure to comply with a release order. According to this police report of this charge, the police officer who searched C.L. found a large quantity of money and various devices associated with selling marijuana. The police later found substances suspected to be cocaine and another illegal drug.

[125] Importantly, it was only after the first appearance, when the parents spoke up, that the great grandparents reported to Ms. Hobbs some of C.L.’s history. Even then, they were not fully transparent.

[126] At first, they confined their disclosures to an assault charge, which they claimed happened when C.L. was 15. They denied any awareness of an attempted murder charge. But as one of the parents had told the Court at the first appearance that more information about C.L. was readily available through a simple google search,[^8] Ms. Hobbs then conducted a google search herself. After they made the above statement about the assault only, Ms. Hobbs confronted the great grandparents with an article dated August 16, 2019 that she had found on the internet. The great grandparents then minimized this too, now saying that C.L. was 20 years old when these things occurred, and that he spent some time in jail in the past. That of course did not explain the more recent charges in late 2022 and early 2023.

[127] The great grandparents were neither forthcoming with the Society, and thus the Court, about when C.L. lived in the home. At the first appearance, I was told by the Society that C.L. was not in the home. However, during the subsequent kindship assessment, the great grandmother admitted that she is C.L.’s surety. She then clarified that his conditions apparently do not require him to reside in the same residence. Yet attached to Ms. Mulholland’s affidavit of July 19, 2023 is one page of C.L.’s release order, pertaining to a recent assault charge. It says the exact opposite; that he is required to reside in the home. There is also a police report from February 25, 2023, below, which says the same thing.

[128] It was only on May 12, 2023, after the Court rejected the placement, that the great grandmother told the Society that she was in the process of having herself removed. In support of this statement, to one of the subsequent affidavits it filed, the Society attached a letter that the great grandmother obtained from C.L.’s criminal lawyer, Mr. Cooper, (the same lawyer who attended on behalf of the mother and declared the conflict), saying that there is no such requirement for C.L. to live in the home. I was also told that Mr. Cooper told Ms. Manji, just on July 31, 2023, that the bail had been revoked, and C.L. is incarcerated. But I had earlier been told that C.L. was in jail before.

[129] I do not find Mr. Cooper’s letter, or this unsworn information from Mr. Cooper to Ms. Manji, to come anywhere near the already low, credible and trustworthy threshold required at this motion. There are too many questions about this history, and shifting narratives about it. If in fact there was a variation of C.L.’s bail or if C.L. is incarcerated, then the great grandmother ought to have provided a copy of a document from the criminal court to that effect to the Society, who in turn could have filed it with the Court. Incredibly, Ms. Mulholland’s affidavit says that as of the date of this motion, the Society was still talking to Mr. Cooper and trying to get documentation to this effect. And even if the Society had been able to get to the bottom of this by the time of the motion, the fact that this was not shared with the Society in a complete and transparent fashion much earlier, is troubling.

[130] Notably, J.L., who is still in the home, has contributed to this lack of transparency. Ms. Hobbs spoke to J.L. on May 19, 2023. He said he was not aware of any attempted murder charges. He admitted to using marijuana but said he did not use it in the home, and denied other drug use. He also advised that C.L. was no longer living in the home. There is no elaboration from J.L., about when he was there, however.

[131] During argument, A.V.’s counsel directed me to a police report dated February 25, 2023. According to that police report, C.L. was in the home and got into a physical fight with his brother. The police were called. The great grandmother confirmed to the police that the brothers had been fighting, and she “didn’t know what to do”. The police officer reviewed C.L.’s bail terms, and noted that he was required to live there as of that date, although not on house arrest. This tells the Court that C.L. was in fact in that home recently, and he was required to live in that home recently. The great grandparents knew this, as would have J.L., but the Society was made to believe otherwise.

[132] Under the circumstances, the Society’s solution to all this, that the Court simply make an order that C.L. cannot be in the home, and that J.L. not be left in a caregiving role, is inadequate. Honesty and full transparency integral to the proper functioning of a supervision order. It is also incumbent upon the Society to first have a proper understanding of what is going on with the various persons in the household, before it can properly assess and make an argument about whether such a term is protective enough or not.

(2) How Have the Grandparents Protected These Children?

[133] When this case first came before the Court, there was little to no evidence about how the great grandparents were involved in parenting, either before or during the time that the parents lived with them. Having reviewed the evidence that was initially and subsequently filed, now including the several police reports, I am left with many questions. It appears to the Court that the great grandparents were mostly absent when the incidents of conflict between the parents, the mental health episodes, and the various police involvements occurred.

[134] Were I to describe in detail the contents of just the 17 reports that the Society already had in its possession when it launched this proceeding, it would add several pages to the length of this decision. I appreciate that at the time of certain of these alarming reports, the parents were not living with the great grandparents. However, according to Mr. Rimmington’s plan set out in the November 13, 2020 letter, the mother was supposed to send the children to the great grandmother’s house if she was feeling overwhelmed. Was that ever done? There is no evidence that this was done on either of the dates of the police reports that pre-date the mother, C.S. and the children moving into the great grandparents’ home.

[135] According to my review of the police reports after June of 2022 (when the mother, C.S. and the children moved into the home), the situation between these parents escalated and worsened, both in terms of the number of reports, and the severity of their contents. I have counted 7 reports involving one or the other of the parents wanting to self-harm after June of 2022, reports of apprehensions and hospitalizations, one report expressing a concern by the police about borderline criminal behaviour on the part of C.S., reports of depression and homelessness on the part of the mother, reports of violence between the mother and C.S., a concern about the prevalence of alcohol and marijuana use in the home, and a concern about conditions in the home, specifically the basement where the mother and A. were.

[136] In regards to the latter, which is by no means the most alarming of the reports, the on April 9, 2023 a police officer described the conditions as a “hoarding situation, virtually uninhabitable”. And notably, I had otherwise been told that the basement was blocked off and off limits to the children and that J.L. lived down there. Yet that is exactly where A. was on May 10, 2023. The May 10, 2023 police report states that the mother lived in the basement, and A. was down there trying to wake her up, causing the mother to “scream and yell”.

[137] With the exception of two reports dated April 9, 2023 and May 10, 2023, there is no indication that the great grandparents were present to protect the children during any of these incidents. In addition, among the many other things that C.S. described in his affidavits of July 4, 2023, he too set out in some detail a time that the mother tried to hang herself, and he detailed a number of physical altercations between members of the great grandparents’ home. I do not have any sense from C.S.’s affidavit material, that the great grandparents intervened in a protective way.

[138] There is also evidence in Ms. Hobbs’ affidavit of May 12, 2023, that the mother recognized the need to go get medical treatment on April 12, 2023, but she did not think she could go until April 21, 2023, some 9 days later, because that was when the great grandparents could provide childcare. Two days later, she was apprehended and hospitalized.

(3) Have the Great Grandparents Actually Cared for these Children?

[139] Both great grandparents are employed full time. There are no details about what that means in Ms. Hobbs’ affidavits. In her affidavit of July 19, 2023, Ms. Mulholland elaborated that the great grandmother works in a retail store and the great grandfather in a machine shop. Still, none of the affidavits before the Court actually set out the great grandmother’s work schedule. The great grandfather is apparently home by 4:30 pm, but no further details are provided, such as when he leaves in the morning. The great grandmother told the Society that she “might” take a leave of absence if necessary. There are no further details about what she can realistically do in that regard, and for how long.

[140] There is evidence before the Court about the Society in the past trying to get the children enrolled in day care, without the necessary cooperation or follow through of the parents. Apparently the great grandmother now has A. and D. on a wait list for day care. There is no evidence about the anticipated length of that wait. While J. attends school, there is a question about his educational performance. There is no evidence before the Court about any awareness of this on the part of the great grandparents either.

[141] The evidence now before the Court reveals that both great grandparents took two parenting courses through the John Howard Society and Kinark. There is no evidence about when this was done, what the great grandparents learned, or how they implemented the skills that they learned up until this point.

[142] Perhaps most importantly, in her affidavit of July 19, 2023, Ms. Mulholland says that the great grandparents have been in a care giving role for the children. Yet she does not say how that is so, or for how long that has been so. There is almost no evidence about this at all.

[143] As a further example of these gaps, relating just to instrumental care alone, on February 28, 2023, Ms. Hobbs attended at the house. She observed both A.’s and D.’s diapers to be sagging. She had to intervene to have their diapers changed. The great grandparents were not there it seems, and the parents had allowed that to happen to the point that the Society noted it in one of its affidavits.

[144] The great grandparents did show the Society photographs of the children participating in activities while camping. I was not shown these photographs. The grandparents also said that they would ensure that the children are enrolled and participate in services recommended by the Society, including counselling. Details are not provided.

[145] There is also very little evidence about access between the great grandparents and the children since the Court’s Order of May 12, 2023 too, for that matter. There have been some access visits between the great grandparents and the children on Sundays for church, followed by community visits thereafter. On May 24, 2023, A. refused to go on a visit with the great grandparents. The great grandmother reported a positive visit with D. only. And while after further such visits occurred on May 28, 2023 and June 4, 2023 Ms. Hobbs did not hear “of any concerns”, the Society has not directly observed any of these.

(4) Has the Society Actually Undertaken a Proper Clinical Assessment of the Past Child Welfare Histories?

[146] There was no evidence about this when the matter first came before the Court, either. Beginning with A.V.’s affidavit of May 30, 2023, and Ms. Hobbs’ subsequent affidavit of June 7, 2023, the Court started to learn about a number of past child welfare histories involving multiple family members. More has been revealed in subsequent affidavits, thereafter. These histories have impacted four generations of this family.

[147] In regards to this current family before the Court, their child welfare history concerning J., and then A. and D. as they were born, dates back to 2014. In particular:

(a) In June of 2014, when the mother was in a relationship with A.V., the Society received a referral regarding conditions of the home and A.V.’s and the mother’s marijuana use. The family moved jurisdictions before the Society concluded its investigation. A referral was made to the Simcoe Children’s Aid Society;

(b) In August of 2014, the Simcoe Children’s Aid Society conducted an investigation due to conflict between A.V. and the mother with another family, and concerns about the parents’ daily care for J. The file was closed. There is no further evidence before me about this;

(c) In March of 2015, Chatham-Kent Children’s Services opened an investigation due to concerns about J.’s care, family violence between the mother and A.V., and concerns about the mother’s mental health, which led to ongoing involvement with that agency right up until December of 2019. Apparently the child was placed with the maternal grandmother for a time, but then was returned to the mother with access to A.V. The Society did not file any of the Court documents or any Statements of Agreed Facts about this, as it was having difficulty accessing records “to confirm placement and dates”;

(d) This Society again became involved in November of 2019 (not in August 2020 as originally suggested in Ms. Hobbs’ initial affidavit), after receiving a direct transfer from Chatham-Kent. The concerns at the time were about the condition of the home, J.’s lack of attendance at school under the mother’s watch, the mother not following through with mental health support, and domestic violence between the mother and A.V., as well as domestic violence between the father and C.S. Yet the Society closed its file in April of 2020, after it determined for reasons that are not explained, that its involvement was no longer required;

(e) The Society opened another matter for two months beginning in June of 2020, after the Society received a police referral regarding conflict between the mother and C.S. due to the mother’s mental health. This time, the mother was hospitalized on a Form 1 for 72 hours. According to the Society, the mother began engaging in services including a referral to a psychiatrist, couples counselling, and the mother was prescribed medication. Because the family indicated they would call the great grandparents if they needed help, the Society closed its file in August of 2020; and

(f) The Society opened again after the fight referred to above that happened on September 26, 2020. It has retained an open file ever since.

[148] Going back further into the child welfare histories of the previous generations, the great grandmother herself told Ms. Mulholland that she too had to leave the home at an early age, having suffered abuse and trauma. There was then child welfare involvement into her parenting of her daughter, P.L. (the children’s maternal grandmother).

[149] P.L. told the Society some of her perspective about this. She expressed concerns about the children being placed with the great grandparents due to the “parent alienation” that she experienced when her own children (which include the mother in this case) were placed with the great grandparents.

[150] The great grandparents provided care for the mother and her siblings when they were children. In her affidavit of July 19, 2023, Ms. Mulholland says that the great grandmother provided her with a “large binder of reports” relating to this involvement. This included “Parenting Capacity Assessments and court documents” the majority of which were neither provided to the Court, nor were its contents otherwise described. For example, I was not shown any Statements of Agreed Facts or decisions of a court containing any factual findings, that might have been included in this binder.

[151] The Society did file a letter from a psychologist named Dr. William Ross dated April 1, 2005, said to be one of the Parenting Capacity Assessments contained in the great grandmother’s binder. Notably, there is no evidence in Ms. Mulholland’s affidavit about the qualifications of the author of this document. There is no explanation as to how this document was obtained in the first place, for example whether it was court ordered in a prior proceeding, nor were any submissions made about the use to which this assessment may now be put, or the weight that should be placed on it.

[152] The Society relies on this document because of its recommendation, back then, that children at the time, being the mother in this case, J.L. and C.L., should remain in the care of the great grandparents. While there are some positive aspects of this assessment, it is by no means universally positive.

[153] For example, P.L. (the maternal grandmother) had made allegations of abuse against the great grandparents. While denied, there was an admission by the great grandmother of the use physical discipline and other physical altercations between herself and her own daughter.

[154] Reports from the Chatham-Kent agency to the psychologist revealed anger issues on the part of the great grandfather, although not such that “he could not effectively parent”. Yet the letter referred to reports from an access center at the time. Referring to those reports, the psychologist described the great grandfather’s conduct as “at best, inappropriate”.

[155] The psychologist said that there needed to be “modification in [the great grandfather’s] behavioural style”. He also foreshadowed that the great grandfather needed to understand, that the then three children could not “continue to be juggled” between his parents, the biological mother, a step father and foster homes.

[156] While the psychologist formed the opinion, in 2005, that the great grandparents “function[ed] at a cognitive-intellectual level of ability where they demonstrate the capacity to make the requisite behavioural changes that would serve the three children most adaptively”, he noted that the great grandfather was presenting as resistant to making necessary changes.

[157] Within the numerous other police reports produced as a result of this Court’s disclosure order of July 10, 2023, there are other problematic accounts dating back to 2009, some four years after this letter from the psychologist. Just like the more current reports, these more dated ones reveal conflict between family members even back then. In one instance, the great grandmother was cautioned about assault on a minor.

[158] Earlier, I referred to what was the very first report in one of the exhibits. It is dated October 25, 2009. It documents a time when the great grandmother was in a dispute with her own daughter over custody issues. Two of her grandchildren, including J.L., found her in the bedroom in a semi-conscious state, with pill bottles beside her, prompting those grandchildren to call 911. When authorities arrived, the great grandmother said that she did not want to attend the hospital, because she had “enough” and didn’t “want to go on”. She was nevertheless taken to the hospital, at which time she expressed that she did not want to live anymore and was uncooperative with nurses. This report states that the great grandmother potentially took as many as 90 pills of Atenolal, of 100 mgs each.[^9] This time, the great grandmother was held in the hospital on a Form, while the children remained at home with the great grandfather.

[159] The Court directly asked the Society about this report during argument of the motion on July 31, 2023. The Society’s response was that it was dated, even though it sought to rely on the above letter about parenting capacity, dated four years before that. In addition to probably being unaware of this incident until the production order was made, notably absent from the Society’s material before the Court is any evidence setting out what exactly the great grandmother did to address her own mental health or the difficulties with which she was then dealing back then, in the years that followed.

[160] Above, I indicated that during argument of the motion, the mother told the Court of the trauma that she experienced as a younger person. She attributes her mental health to having been raised in the great grandmother’s home. While the great grandparents have denied allegations against them about physical or inappropriate discipline, there is another report from 2010, at which time there were allegations of inappropriate discipline which resulted in a physical altercation and “the child” [unidentified] asking to come into care.

[161] Even though the Society is still seeking to place these children in the care of the great grandparents after having received all of this information, in her affidavit of June 7, 2023, Ms. Hobbs nevertheless identified themes “through the years of involvement with child welfare and members of this extended family”. The historical themes that Ms. Hobbs identified include conflict, police involvement, sometimes in the presence of the children, a lack of follow through with expectations, inter-generational conflict negatively impacting the children, and concerns about the great grandparents minimizing concerning behaviours on the part of their own children and grandchildren. To this I would add that there has been evidence of drug use or dealing across more than one generation.

[162] What is absent from this evidence, is what exactly has changed over time, to reduce any worry that these children will not just be exposed to the same patterns of behaviour that seem to have occurred over and over again. I am not satisfied that the Society has undertaken the necessary clinical assessment of these histories in its decision making and proposal to place with the great grandparents.

(5) To What Extent Is Irresponsible Marijuana or Other Drug Use Occurring in the Great Grandparents’ Home?

[163] Again, A.V.’s evidence is that he has made multiple complaints to the Society about drug use between 2020 and 2022, and again in May of 2023. Most recently, he said that that after J. was removed from the mother’s care on May 10, 2023, the mother told him that C.L. had been arrested and charged with cocaine related offences about a month earlier, now corroborated by the police records attached to the Society’s July 28, 2023 affidavit. A.V. called the police, and someone informed him that they would meet with him at that home that evening.

[164] When the father attended on May 10, 2023, persons from the Society were in attendance, but no one from the police was there. A.V. says he told the Society about C.L.’s cocaine related charges and that both brothers were involved with cocaine, but Ms. Hobbs said that she was “not going to deal with any criminal stuff” and ended the conversation. The father later learned that the police would not be coming, because the Society had handled the situation.

[165] C.S. has also given evidence about the Society’s awareness about the prevalence of drug use in the great grandparents’ home. In his affidavit, C.S. wrote that the Society was aware of where, “…we kept our bongs, and marijuana and had no issue, as the bongs were only on the top of the stairs when we were going to use them.” He went on to say that the parents otherwise kept the marijuana at the bottom of the stairs in a laundry room and had the stairway blocked off with a “baby gate”.

[166] Although the Society was adamant on May 12, 2023 that drugs were not an issue when it designated the great grandparents’ home as a place of safety, Ms. Hobbs has subsequently advised the Court in her affidavit of June 7, 2023, that Ms. Mulholland observed three “bongs” in the basement. Ms. Hobbs goes on to state that J.L. is not to be left in a caregiving role, does not use marijuana in the home and because the basement is “blocked off with a piece of plywood”. I gather from this evidence that the Society wants the Court to draw the inference that it should not be concerned about this marijuana use. But again, at least on May 10, 2023, both the mother and A. were down in that basement. And there are issues with J.L’s credibility too, described above.

[167] Alarmingly, A.V. reported that J., who is not yet 10 years old, has not only been exposed to this marijuana use, but he knows how to use drug paraphernalia. C.S. agreed that J. “may know how to pack a bong, but that’s because any attempt to keep it away from him, he found a way to be nosey and to see what either [the mother], or myself were doing.”

[168] In addition, there were at least two police reports in the possession of the Society when it launched this proceeding, indicating that drug use was a problem in this home. There are now records of various criminal charges involving drugs before the Court.

[169] The Society has taken a relaxed approach to drug use in this case. It is problematic that drug use even if it is ‘just marijuana’ has been so normalized, that a child, who is not yet 10, knows how to “pack a bong”. This is another example of the great grandparents’ lack of insight and their inability to act as a protective factor in their own home, even if it was the parents’ or their grandsons engaging in the drug use or related activities themselves.

(6) The Society’s Actual Plan of Care Is Vague and Non-Specific

[170] In all of this context, I turn to the specifics of the Society’s plan for this placement. They are set out at ¶ 67 to 69 of Ms. Hobbs’ May 12, 2023 affidavit. They contain little more than what Mr. Rimmington had set out almost two years earlier.

[171] The Society’s plan is actually just to develop a plan. It wants the family to go to alternative dispute resolution, to “develop a plan to address their conflict and mental health so that they can provide a stable, safe home environment for the children”. The Society wants the parents to develop a plan that would include “what supports each parent is willing to follow through with to address their conflict so that conflict does not escalate”. The Society proposes that should involve counselling, parenting courses and anger management, and extended family/friends. The Society also says that the parents have to “address their mental health” and “follow through with the recommendations made by the mental health professionals”.

[172] While that level of generality might have been appropriate two or three years ago, when Mr. Rimmington tried to come up with a plan, at this stage of the Society’s involvement with the family, the lack of detail is striking. For example, where exactly will the family access services? What are the specific services being suggested? What counselling? By whom and with what qualifications? What parenting courses? What anger management? Which extended family and friends should be involved? What are the wait lists? How will any of this be funded, if necessary? There is also no mention of housing in this plan either, now an issue for both the mother and C.S. in particular.

[173] The Society was given the opportunity over the course of four adjournments to improve its plan. There is little to nothing more concrete or specific in these paragraphs of Ms. Hobbs’ affidavit than what was set out in back in the fall of 2020, in Mr. Rimmington’s letter. Nor is there much of substance before the Court setting out what happened since Mr. Rimmington tried to come up with his plan back then, such that the Court might confidently know what was tried, and what worked or didn’t work.

(7) Conclusions Respecting the Society’s Plan for a Temporary Placement with the Great Grandparents

[174] Based on the foregoing, the Society’s motion to place the children in the temporary care of the great grandparents is dismissed. A. and D. shall remain in the temporary care and custody of the Society.

D. The Society’s Motion to Add the Great Grandparents As Parties to this Proceeding

[175] No one argued that any of the Family Law Rules for party status are engaged here. Given the disposition above, the Society’s motion to add the great grandparents as statutory parties to this case, anticipated to follow a temporary placement order, is dismissed. The great grandparents will have to decide in consultation with Ms. Scovino whether there are other remedies available to them, and if so, a request can be made of this Court.

E. A.V.’s Plan for J.

[176] The Society raised three principal concerns about A.V.’s ability to care for J., being housing, J.’s educational needs, and A.V.’s ability to comply with Court Orders, if terms of supervision are put in place. As the argument unfolded, the Society’s principal objection is focused on the separation of the siblings. This was premised on the assumption that A. and D. would be placed in the temporary care of the great grandparents, which is not being ordered.

[177] I find that a plan to place J. with his father should be considered, but it is premature. I say this for the following reasons.

(1) A.V. Has Cared for J. For Significant Periods of Time in the Recent Past and A.V.’s Access Since May 12, 2023 Has Gone Well

[178] Again, A.V. has cared for the child J. for a considerable period of time between 2020 and 2021, and again between November of 2022 and February of 2023. While there were undoubtedly issues, the Society did not intervene to effect a removal during any of those periods. Of course, the Court cannot base its decision to place J. in A.V.’s care now on the Society’s past failure to intervene. This evidence is nevertheless relevant.

[179] At the request of the Society on May 12, 2023, the Court ordered that A.V. would at a minimum have one weekly supervised visit with J. The Society has since approved the paternal grandmother to be a supervisor and those visits moved to the community for longer periods of time. The paternal grandmother has reported that she and the father have not missed a visit since being allowed to have access after the removal. The evidence before the Court is that A.V.’s visits have generally gone well, and he has engaged in positive messaging.

(2) The Nature of the Care that A.V. and the Paternal Grandmother Have Provided for J.

[180] Both A.V. and the paternal grandmother described the care that they have provided for J. in the past. This included talking with him and playing games, going out to restaurants, engaging in sports and outdoor activities, grocery shopping, meal preparation, and doing laundry. A.V. talked about various of J.’s likes and interests.

[181] A case note of a conversation between J. and Ms. Hobbs dated June 21, 2023 reveals that J. told her he has a grandmotherly nickname that he uses to identify his paternal grandmother. He told Ms. Hobbs he liked playing games with the paternal grandmother, and he talked about a TV show they used to watch together.

[182] Although in response to a question from Ms. Hobbs about whether J. felt safe with his paternal grandmother, J. said “not really because lots of stuff could happen”, J. was umnable to explain this further, nor could he explain what might happen. J. then said he did not have worries when with his paternal grandmother. He said that he would be comfortable going to a park, but there wasn’t much to do at the paternal grandmother’s house. J. otherwise reported that he liked spending time with his paternal grandmother.

[183] J. also told Ms. Hobbs that his father and paternal grandmother did not fight.

[184] J. reported that his father does not use physical discipline. He said that his father’s disciplines him by taking away TV privileges for a specified period of time. The paternal grandmother said that she does not use violence to parent.

[185] There is no other evidence before the Court of A.V. or his mother engaging in any physical discipline towards J. In fact, at least one of the police records that the Society had in its possession when it brought this matter before the Court corroborates this absence of evidence. On January 6, 2021, the police attended at the father’s home to do a wellness check on J. after they received a complaint from someone said to be an aunt, that children were being driven on the roof of a car, and that J. had marks and bruises on his face. The police observed J. to be in “great health and very happy”. The police report notes that there was no evidence to suggest physical abuse.

(3) A.V.’s and the Paternal Grandmother’s Schedules

[186] According to his Answer and Plan of Care, the father has worked as a general labourer. He intends to apply for O.W. The paternal grandmother works night shifts as a cleaner, but she is home by 7 am. She is available to pick J. up from school, get his dinner ready and do a bed time routine, as well as help in the morning. Both say their schedules are such that they are able to care for J.

(4) Neither A.V. Nor His Mother Use Drugs

[187] Unlike at the great grandparents’ home, there is no evidence of any drug use at A.V.’s home. The paternal grandmother says that she has never used drugs. While A.V. says that he used to smoke marijuana, he no longer does so. He has not used marijuana since February of 2015. He says he rarely drinks, and he does not use other drugs.

[188] A.V. has acted protectively when it comes to the exposure of children to drugs. I have already described examples where A.V. called the police and the Society to report concerns about children being exposed to drugs.

[189] These are important positives in this case. Given the extents to which J. (and the other children) have been exposed to drug use by the other parents and in the great grandparents’ home, and given the extent to which drug use has been normalized, I find A.V.’s and his mother’s attitudes are significant.

(5) The Prior Child Welfare Histories of A.V. and His Mother

[190] Both A.V. and the paternal grandmother have been involved with child welfare authorities before. There was some conflict between them, including concerns about a physical assault by the paternal grandmother on A.V. when he was younger. Earlier, I dealt with A.V.’s past child welfare history when he was in a relationship with the mother.

[191] However, both A.V. and the paternal grandmother went into this history in some detail in their affidavits. The paternal grandmother explained that she had been in an abusive relationship with A.V.’s father years ago, and she talked about her subsequent relationships. She had some mental health difficulties due to her traumatic experiences in relationships. And she talked about prior child welfare and police involvement impacting A.V. when he was a child and a teenager. Notably, the paternal grandmother then talked about the steps that she took to overcome her past difficulties. This included accessing counselling and employment services, and distancing herself from past abusive partners.

[192] A.V. explained that he had a hard time as a child to self-regulate. A.V. said that he has grown up a lot. For example, he said that he became a father, he has lived and worked at various jobs, and he took anger management courses in the past. Because of the violence that he experienced at the hands of his own father as a child, he is resolved not to parent in the same fashion.

(6) A.V.’s Housing

[193] A suggestion was made that A.V. is homeless. He is not. Since April or perhaps May of 2023, he has lived with the paternal grandmother.

[194] However the paternal grandmother used to live in a larger apartment with her son, including during the three-month period that the father had J. in his care between November of 2022 and February of 2023. She deposed that she would have remained living with her son in the larger apartment and continued to assist him with the rent, but once the Society directed that J. had to return to his mother’s care in February of 2023, she found a one-bedroom apartment that she could afford on her own.

[195] Nevertheless, both A.V. and his mother say they are committed to finding a bigger apartment if J. is placed in A.V.’s care, and they will again share the rent. Still, A.V. and his mother will require some time to implement this in the longer term.

(7) J.’s Educational Needs

[196] On the other hand, there are concerns about J.’s educational needs that have been identified, which need to be explored.

[197] The Society points to the fact that during the three months in which J. resided with his father between November of 2022 and February of 2023, the father had some difficulty getting J. to school. This was even so after the Society had volunteer drivers in place to assist with this. School attendance was an issue in 2020 and 2021 too, and under the mother’s watch.

[198] Ms. Hobbs also advised in her May 12, 2023 affidavit of a report that the Society received, that J. did not want to leave school one day in early 2023. Apparently J.’s resource teacher advised the Society, that J. said to her, that his father played video games all day, and did not “do anything with him” J. also advised that he did not want to go to his father’s house, because he had not seen his mother, step-father or siblings under this arrangement.

[199] A.V. admitted that J. did miss about 2 weeks of school due to head lice, and occasionally when school buses or volunteer drivers were not available due to inclement weather. He also kept the child home at times because the child did not have appropriate winter clothing. He says he enrolled the child in school online as well. He talked about the child being in online schooling and having done some homeschooling in the past.

[200] In regards to the statement that the father was playing video games, A.V. says that he played video games when the child was living with him, because he was trying to earn income from home as a “livestream gamer”. He no longer does this, as he learned that he could not invest the hours required to earn a decent income and to have quality time with J. and other interests.

[201] In regards to the statement that he did not want to come to the father’s home, A.V. says that in actuality, J. was upset because A.V. took away his TV privileges, because J. had been swinging a shovel in a reckless manner while playing with his cousins. He says that the child’s statements about not seeing other family members while living with him was a consequence of the mother not attending visits, not his own actions.

[202] Notably, J.’s educational or behavioural issues did not improve when he went back to the mother’s care (in the great grandparents’ home) in February of 2023. For example, according to Ms. Hobbs, as recently as May 5, 2023, just 5 days before the removal, the Society received a call from J.’s school principal. The principal reported that school staff had seen an “increase in [J.’s] behaviour” and that J. was having panic attacks. The principal also reported that J. was behaving violently towards peers. The principal said he tried to address this with the mother, but the mother blamed the school.

[203] Ms. Hobbs spoke to J.’s school principal on June 11, 2023, who advised that J. is currently struggling with reading and writing, and is below grade level. A concern has been identified that J., who is in French Immersion, is struggling to read and write in both English and French. The principal recommended that J. learn English primarily as this could produce a greater understanding and close the learning gaps in his reading and writing. I was told that a placement with A.V. would entail a school change.

[204] Before the Court is prepared to place J. in A.V.’s care, the Court needs additional details about J.’s educational needs. The Court also needs to hear from A.V. and the paternal grandmother how exactly they will ensure that J. gets to school, and that his educational needs will be met, once they are identified.

(8) A.V.’s Ability to Comply With Court Orders and A.V.’s Conflict With Others

[205] As set out in Ms. Hobbs’ affidavit of May 12, 2023, the father said three times after Fryer J.’s June 8, 2021 Endorsement that restricted J. from attending at N.J.’s house, that he would not comply with that term. Ms. Hobbs said the Society received reports that the father did in fact not follow the Order. There is also some evidence before the Court, albeit contested, about whether A.V. was able to facilitate contact between J. and other members of his family, when J. lived with him.

[206] In regards to the former, in his affidavit of July 25, 2023 (and in N.J.’s affidavit too), both talked about their past relationship and J.’s relationships with the children in N.J.’s home. It appears to this Court that both were trying to justify the breaches, with reference to the importance of maintaining J.’s relationships with his half-brother and cousins. To some degree, the father has also blamed the Court.

[207] A.V. explained that during the CLRA proceeding, the mother’s allegations about N.J.’s home led to the condition in Fryer J.’s June 8, 2021 Endorsement. In his factum, the father suggested that Fryer J. improperly imposed this term upon him without his consent at a case conference. He says that he argued with the Society worker at the time and said he would not follow the term because he did not know the proper way to have addressed his disagreement with the term. If the father was unhappy with the term, he had remedies he could have pursued. He also could have earlier informed himself as to those remedies.

[208] The father’s counsel argued that the father now has legal assistance and so he has learned from his past mistakes. In some respects, the force of that argument is undermined by the father’s own recent email of July 14, 2023, authored by the father at a time that his current counsel was representing him.

[209] On July 14, 2023, A.V. wrote an email to Ms. Hobbs to say that this “[N.J.] bullshit will not continue to hold up.” He further told the Society that it had “zero protection reasoning to keep [J.] from attending his brothers home.” Although he did say that he would be “following it” [meaning the prohibition] for now, included in his email was a threat that “many people” in his circle “will be filing law suits”, and that he would be “taking you people to court at a later date” to file “child endangerment charges”.

[210] Notably, although he said there was “zero protection reasoning” for the restriction, the father himself has also complained about the cleanliness and other conditions in N.J.’s home at different times, something that he repeated in his own affidavit material. For example, A.V. made a call to the police on July 30, 2022, expressing concern about N.J.’s new partner. He said a child had made a comment that is sexual in nature, and he believed the partner was dangerous and inappropriate. When the police attended at N.J.’s home with the Society, they observed her house to be filthy, with garbage, empty beer cans, liquor bottles, cigarette butts, bongs, marijuana canisters, a marijuana grinder and a tray of ground up marijuana on the tray. All of these items were easily accessible to the children, according to the report. Two of the bedrooms, including one in which the children slept, were dirty, and had garbage, rotten food, and cigarette butts in them. It was on this occasion that the Society removed N.J.’s children from the home for the weekend (and sent them to A.V.’s house) to allow her to get the house into a better state.

[211] The Court has to have some confidence that a parent will follow Court orders and work cooperatively with the Society during a period of supervision. There is enough evidence of the father’s hostility about this term, alongside an abundance of other evidence of him engaging in conflict with a myriad of people, not just the Society, that causes the Court some pause. There continue to be unresolved allegations about whether A.V. has contributed to J. not seeing other family members at different points in time, versus whether different actions taken were justified based on circumstances at the time. There is also evidence that both A.V. and the paternal grandmother have interacted with the Society with some hostility in recent times, such as surrounding requests for police records.

[212] I am prepared to accept that A.V. is frustrated about some of what has happened, and I will place his recent email into that context. I will reluctantly give him some benefit of the doubt, but only to an extent. By proceeding cautiously and increasing A.V.’s access for now, he (and the paternal grandmother) will be given a chance to demonstrate that they can comply with Court orders and to behave more maturely and civilly, in his dealing with the Society, now that he has the benefit of legal counsel.

[213] I also intend to continue to place conditions on J. attending at N.J.’s home until the Society can assess the situation, as the Society requested me to order. This term can be reviewed in due course. Although N.J. says in her own affidavit that she has worked voluntarily with a society worker named Kristen Miller since July of 2022, there is other evidence before the Court that N.J. has had a hostile attitude towards the police and the Society. This is reflected in the police report of July 30, 2022. A.V. or his counsel would be well advised to have a conversation with her, and to secure her cooperation, if A.V.’s expectation is to have this term reviewed in short order.

F. The Children’s Views and Preferences and Access

[214] Pursuant to section 94(11), before making an order under section 94(2), the Court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained. In any best interests’ analysis that is required by the CYFSA, the child’s views and wishes are a mandatory consideration and those views and wishes are to be placed front and center: see section 74(3)(a).

[215] Both J. and A. are both keenly aware of the parental conflict, and that their mother is struggling. For example, on May 16, 2023, both J. and A. reported to Ms. Hobbs that they are afraid when their mother yells. They both said that this happens a lot. On June 22, 2023, A.’s foster parent reported to Ms. Hobbs that the parents told her that they did not want her seeing her great grandparents, and that A. was inconsolable for 30 minutes. I have already dealt with the evidence about J.’s statements made at school, about his father’s home, above.

[216] On May 31, 2023, Ms. Hobbs asked J. who he wanted to live with. While he spoke positively about his foster placement, he said that he wanted to live with his great grandparents, his sisters, and his parents, and that he would continue to visit with A.V. on weekends, but not on Sundays, so he could go to church with his great grandparents. He also apparently told Ms. Hobbs that he wanted to live with the great grandparents if his parents were not there, as long as he could see his parents.

[217] Counsel for the OCL Ms. Grant reported that J. principally wants to live with everyone together. If not possible, he said he wanted to have a lot of contact with those with whom he is not living, including his cousins and half-brother in N.J.’s home. He was not adamant about living with the great grandparents, but did want to see his sisters if they lived there. Ms. Grant reported that A. wants to live with her family and her siblings. D. is only one years old.

[218] While I have considered these wishes, I do take into account the young ages of the children, particularly A. Both children’s comments about living with family, in an intact situation, are not realistic in light of the protection concerns. The Court and the parties can try to craft an access order that takes some of this into account.

PART VI: THE CONDUCT OF THIS PROCEEDING

[219] At ¶63 of B.J.T. v. J.D., 2022 SCC 24, the Supreme Court held that a judge conducting a best interests’ analysis is not only not prevented from considering the actions of a child protection agency, but they may be required to do so in some circumstances on account of the court’s essential oversight role in child protection matters and the Court’s parens patriae jurisdiction. At ¶67 the Court held, “[p]rovided the focus remains on the applicable legal principles, it is in everyone’s best interests that the checks and balances established in child welfare legislation are front of mind for all decision makers, including judges undertaking a best interests analysis”.

[220] I intend to comment about how this motion was conducted, and how this family and the children have been impacted.

A. The Positions Taken by the Society and the Durham Police Respecting the Evidence Needed At this Temporary Care and Custody Hearing

[221] The records motion was argued on July 10, 2023. Insofar as the use of the 17 police records that the Society already had in its possession when it brought this proceeding is concerned, the July 10, 2023 motion was an unnecessary step.

[222] Aspects of the Society’s factum for that motion focused on the legal principles that apply under section 130 of the CYFSA, including even to records already in its possession. While a motion under section 130 was necessary for the Society to obtain other reports that it did not yet have, that was not the issue before me. The real issue that has permeated throughout this case at this early stage, was whether the Society could have used the 17 records that the Durham Police had already given it pursuant to the duty to report, or whether a motion under section 130 had to first be brought.

[223] The Society takes the position that it cannot file such reports in a child protection proceeding, nor may it even describe their contents in any detail in a worker’s affidavit, without first bringing a production motion.

[224] The Durham Police informed the Court of “the current practice”, to send unredacted occurrence reports to the Society pursuant to its duty to report. But for the Society to then rely on these records in a proceeding, it too argued that the Society must bring a motion for a production order under section 130 of the CYFSA. The Durham Police will not consent to the use of the records once a child protection proceeding is underway, even if asked to do so by the Society. It will not consent once a motion is brought either, although normally it will not oppose such a motion, provided the Order sought contains standard conditions and limitations. The Durham Police say they require the “weight and authority” of a disclosure Order.

[225] Unlike the Society though, the Durham Police did not generally object to the information contained in occurrence reports being put into a worker’s affidavit. The Durham Police made this concession, even though it still raised concerns about the potential need to redact some of the information contained in said records.

[226] The Durham Police will not redact any information that it thinks needs to be protected at the time of discharging its duty to report either, nor will it do so subsequently if the Society asks to use the records for court. Counsel said this was due to the “time and resources” it would take to redact. Once the Order is made though, the police will then do the redactions, (consuming the same amount of time and resources) because police records “may, and often do, contain third-party personal information”.

[227] For the reasons that follow, I find that the subsequent use by the Society of information it receives from the Durham Police pursuant to the duty to report, is not only permissible, but it is required. A court order is not a precondition to that.[^10]

B. The Legislation and Regulations Authorize Both the Disclosure of Occurrence Reports, Or the Information Contained Therein, and Their Subsequent Use In A Child Protection Proceeding

(1) The Durham Police’s Authority, and Obligation, to Disclose

[228] Section 41(1.1) of the Police Services Act, R.S.O. 1990, c. P. 15, provides for the disclosure of personal information by the police in accordance with the regulations. Section 41(1.2) sets out the purposes of providing that disclosure, which include protection of the public, the administration of justice and the enforcement of and compliance with any federal or provincial Act, regulation or government program.

[229] O.Reg 265/98: Disclosure of Personal Information is the regulation referred to in section 41(1.1) of the Police Services Act. Section 5(1)(c) allows for the disclosure of personal information about an individual if the individual is under investigation of, is charged with or is convicted or found guilty of an offence under the Criminal Code, the CDSA, or any other federal or provincial legislation to “any person or agency engaged in the protection of the public, the administration of justice or the enforcement of or compliance with any federal or provincial Act, regulation or government program”.

[230] It was not argued whether or not the Society is an agency described in section 5(1)(c) to whom information may be disclosed. In any event, section 5(3) of O. Reg 265/98 provides that the procedures to be followed in disclosing personal information to other agencies not engaged in the protection of the public or the administration of justice shall be in accordance with a memorandum of understanding. The Durham Police says MOU between it, the Society and DBCFS was entered into pursuant to this section of the regulation. The Court queries how a children’s aid society would not be considered an agency engaged in the protection of the public and therefore why a MOU is even needed.

[231] Section 32 of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56 (the “MFIPPA”), provides that personal information collected by an institution (which includes the police)[^11] prohibits the Durham Police from disclosing personal information in its custody or under its control, except in a number of circumstances. One such exception is in section 32(c), where disclosure is made for “the purpose for which it was obtained or compiled or for a consistent purpose”.

[232] According to section 33, the purpose of a use or disclosure of information that has been collected directly from the individual to whom the information relates is a “consistent purpose” only if the individual “might reasonably have expected such a use or disclosure”. Arguably the use of personal information in a child protection proceeding is a consistent purpose. A person who comes into contact with the police because of conduct, or alleged conduct, that either poses or may pose a risk to a child, should have no expectation that the information then gathered by the police will not be shared with a child welfare agency tasked with the responsibility of protecting the child. But this section too was not argued.

[233] Another exception is in section 32(e), “where permitted or required by law or by a treaty, agreement or arrangement made under an Act or an Act of Canada” ie. the duty to report in section 125 of the CYFSA.

[234] Therefore, in the case of the Durham Police’s duty to report, information must be provided to the Society.

(2) The Society’s Authority to Receive Disclosure

[235] In regards to the Society’s collection of this information from the Durham Police, I observe that one of the “other purposes” of the CYFSA in section 1(2) is that “appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families”.

[236] Then, section 288(2)(e) of the CYFSA provides that a service provider, which includes a Society,[^12] may collect personal information indirectly for the purpose of providing a service without consent of the individual to whom the information relates if (e) “subject to the requirements and restrictions, if any, that are prescribed, the indirect collection of information is permitted or required by law or by a treaty, agreement or agreement made under an Act or an Act of Canada.”

[237] Therefore, the Society must receive the information provided to it by the Durham Police acting under its duty to report.

(3) The Society’s Authority, and Obligation, to Use the Disclosure or Information Received, When It Brings a Child Protection Proceeding

[238] Section 291(1) sets out the permitted uses of the information collected by a service provider for the purpose of providing a service. Section 291(1)(i) specifically provides that the information may be used “for the purpose of a proceeding or contemplated proceeding in which the service provider or an officer, employee, agent or former officer, employee or agent of the service provider is, or is expected to be, a party or witness, if the information relates to or is a matter in issue in the proceeding or contemplating proceeding.”

[239] Therefore, the Society may use the information for a child protection proceeding, without first needing a court order.

[240] Additionally, section 292(1)(h) says the information may be used without consent, where “permitted or required by law or by a treaty, agreement or arrangement made under an Act or an Act of Canada, subject to the requirements and restrictions, if any, that are prescribed”. As I explain below, both the statute and the case law set out the evidentiary requirements on a Society when it brings a matter before the Court. The evidentiary requirements trigger section 292(1)(h) as well.

[241] Therefore, this section too is additional statutory authority for the Society to use the information, without first needing a court order.

C. The Terms of the MOU Authorize Both the Disclosure of Occurrence Reports, Or the Information Contained Therein, and Their Subsequent Use for In A Child Protection Proceeding

[242] Quite apart from these statutory and regulatory provisions, the MOU does not prohibit the use of any information provided to the Society if there is a subsequent court proceeding; quite to the contrary, it also authorizes it.

[243] The introduction section of the MOU states that it is entered into pursuant to the Police Services Act and the CYFSA, “and all regulations, directives and protocols thereunder”, the Youth Criminal Justice Act, section 32(3) of the Municipal Freedom of Information and Protection of Privacy Act, and Part X, Personal Information of the Child, Youth and Family Services Act, and O. Reg. 191/18: Personal Information.

[244] Part IX of the MOU specifically relates to information sharing between the Durham Police and the two child welfare agencies. There are general provisions set out in Section I of Part IX, including a statement that the MOU was developed and executed to specify the conditions and procedures for the sharing of information between the Durham Police and the two child welfare agencies. But this part of the document also specifically states that nothing in the MOU prevents either agency from applying to a court for a warrant or a production order, and nothing precludes either agency from “exercising any statutory powers set out in any Acts or regulations as aforementioned”. Even if the latter provision were not there, the MOU could not override the governing legislation anyway.

[245] Paragraph 1 of section II of Part IX provides that the police will provide information to the Society or DBCFS in accordance with the protocol where “it determines that such information is required for the protection of the public or for the enforcement of or compliance with Provincial Acts, specified above”. The decision to share information is said to be in its discretion. Paragraph 2 provides that the disclosure of information “may” become necessary where there is a duty to report under section 125 of the CYFSA or where the police are conducting an investigation into alleged child abuse in which the Society or DBCFS has a direct interest, but not if it would jeopardize the status of an ongoing investigation.

[246] To the extent the Durham Police intends to exercise this discretion in the MOU not to share information otherwise captured by the duty to report, this would be directly in violation of their legal duty in section 125 of CYFSA. Disclosure of information is mandatory, not discretionary, where there is a duty to report: see again section 125 of the CYFSA.

[247] Section IV deals with confidentiality and other limits. Importantly, at paragraph 1 the Durham Police reserved the right to redact records to protect “the privacy interests of third parties and confidential informants”, the integrity of investigations and other matters governed by the MFIPPA. When questioned why the Durham Police could not just provide redacted records to the Society, the Durham Police said it will not engage in this task without a court order and made the time and resources argument. It said this despite paragraph 1 of Section IV of its own MOU.

[248] At paragraph 2, there is no agreement that either of the two child welfare agencies would not use the information received if there was a Court proceeding unless and until a disclosure order was obtained. Once again, and quite to the contrary, they merely agreed that any information provided to it would only be used for “the purpose specifically authorized herein; namely for the protection of the public or the enforcement of or compliance with the Provincial Acts specified above, and only in the context of the specific investigation or background review for which the information has been requested”.

[249] Likewise, at paragraph 4, while the Society and DBCFS did undertake “to maintain, respect and protect the confidentiality of the information disclosed to it pursuant to this Protocol” and “not to release or disclose any such information”, their agreement in paragraph 4 does not extend to a court proceeding. While paragraph 4 expressly permits if “is expressly permitted in writing by the Service”, the consent of the Durham Police is not an exclusive precondition. The Society may also use the records for any of the “uses contemplated above”, or where such use “is otherwise authorized or required by law”. [ my emphasis added]

D. The Society Is Required to File the Evidence It Receives from the Durham Police If Relevant At the Temporary Care and Custody Hearing

[250] It is important to reiterate the Society’s onus, and the evidentiary requirements at a temporary care and custody hearing.

[251] The Society bears the onus of providing evidence necessary to support a placement and any terms and conditions of supervision. It is not the job of the parents to fill in the gaps in the Society’s evidence to help it meet its onus: see Children’s Aid Society of Toronto v. B.H. and M.P., [2007] O.J. No. 2446 (C.J.) ¶ 55. Nor should the Society be ringing just enough alarm bells, but then putting the Court in the position of having to adjourn to let it cure any gaps with evidence already known to it.

[252] According to section 94(10), the Court may admit and act on evidence that the Court considers credible and trustworthy in the circumstances. It is well established that under this section, the Society must provide balanced affidavits when it brings a matter before the Court. An affidavit is not balanced when a Society withholds information relevant to the decision a Court must make.

[253] At ¶55 and 56 of Children’s Aid Society of Toronto v. B.H. and M.P., Sherr J. reminded the Toronto Society that its job was to present all relevant and probative evidence, including that not favourable to their position, “to ensure that the best possible decision for children can me made”. The consequence of not doing so, as Sherr J. noted, was that the evidence of the society workers became less reliable. Sherr J. asked: “How could I fully trust that they were providing me with the full context when they were giving me their evidence, when they chose to present their negative observations in such a disproportionate manner?” While Sherr J. did not necessarily reject all of their evidence, he had to treat it with more caution.

[254] I appreciate that in most cases, a Society will have to act quickly, because the legislation requires that a matter must be brought on before the Court fairly immediately after a removal. In this case, the Society relied on its designation of the great grandparents’ home as a place of safety in support of the placement it proposed. In many cases, such a designation will suffice at an early stage of a proceeding. But here, the place of safety designation was inadequate. The force of the argument, that the Society had to act quickly, was severely weakened, given its persistence in working with the family out of court beforehand for years in problematic circumstances.

[255] As Kukurin J. wrote at ¶ 15 and 17 of Children’s Aid Society of Algoma v. H.P., 2011 ONCJ 679, the credible and trustworthy evidentiary standard was intended to compensate for the requirement on a Society to have protection applications before the Court within five days of an apprehension. As a case ages, the time pressures are relieved, and the applicability of a looser evidentiary standard becomes more difficult to justify. Evidence that might have been credible and trustworthy earlier may become less so. Although this case before me just began, these sentiments are nevertheless applicable, in light of the Society’s choice to engage with the family for so long without court oversight.

[256] All of these principles have already been set out in this Court’s decision in DCAS v. G.S., 2022 ONSC 547. They have been set out in other cases too since DCAS v. G.S.

[257] For example, at ¶190 and 191 of Windsor-Essex Children’s Aid Society v. J.S., 2023 ONCJ 333, Bondy J. cited DCAS v. G.S. and faulted the Windor-Essex Society for its unbalanced preparation of an affidavit. There, the Society had left it to the father to parse out numerous pieces of evidence to present a more “balanced and nuanced account” of an incident. Bondy J. reiterated that no affidavit in child protection proceedings should merely focus on the evidence that supports a finding of protection.

[258] In Children’s Aid Society of the Regional Municipality of Waterloo v. S.M. et al, 2023 ONSC 3373, during a Status Review, Tweedie J. was critical of that Society for not having disclosed relevant information in its possession to the mother and to the Court during an earlier protection application. At ¶ 42, she wrote:

I am gravely concerned that the Society did not disclose this information to the mother and the court during the Protection Application. The Society is an institutional litigant, seeking intrusion into the autonomy of families. It is a creation of the CYFSA, and its only authority to act comes from the CYFSA, of which the paramount purpose is to promote the best interests, protection, and well-being of children. It is incumbent upon the Society to bring to the court's attention all information relevant to the needs of the children in a timely manner. To do otherwise would belie the paramount purpose. It is my understanding that the Society has recognized and acknowledged this.

E. The Durham Police’s Surprising Submission in Response to the Records Motion

[259] DBCFS is not a party to this case and so it did not make submissions on July 10, 2023. Nevertheless, at ¶12 of the Durham Police’s factum, the Durham Police said it understands that “DBCFS has recently taken the position that they are not required to obtain an Order to rely on the police records in child protection proceedings” and has “begun the practice of disclosing police records in its possession directly to the Court, rather than first obtaining an Order for production”. This, in tandem with the fact that this Court required the attendance of the Durham Police, required it to file a factum, and required it make submissions, has led the Durham Police to make inquiries of other police forces, and to pronounce that intends a change in course respecting disclosure going forward.

[260] Both lawyers for the Durham Police told the Court that the police might just change the practice such that the police would no longer provide occurrence reports to satisfy its duty to report under section 125 of the CYFSA, in favour of a verbal report. One of the two lawyers then elaborated saying that because of this Court’s Endorsement of July 9, 2023 requiring the police “to file a factum and appear”, he made inquiries of other jurisdictions and “almost every single service” said that they do not provide general occurrence reports to discharge their duty to report under section 125, unless there is a court order. Apparently, the child welfare agencies in those other centers therefore get “pretty limited” information.

[261] Just because other police forces may choose to provide a verbal report in the discharge of their legal duty to report where there are reasonable grounds to suspect actual harm or the risk of harm to a child, does not mean that the information provided is “pretty limited”. In any event, although the Durham Police were critical of DBCFS for allegedly acting unilaterally by providing to the Court reports it already had and without a court order, counsel then said:

So, what is going to occur in DRPS – I’ve had a consultation with my clients about this, is we are going to amend our practice to follow the… provincial practice. And so, unfortunately, for my friends at the Society and at the DBCFS, they’re going to start to receive a more limited initial disclosure pursuant to our duty to report and they will then have to access the… general occurrence by way of motion, which is … occurring in any event.

[262] The comments of counsel for the Durham Police are very concerning given that we are speaking about the welfare of children. The Court’s expectation of the Durham Police is to comply with its legal obligation to a report to the Society or DBCFS. Whether they do so in writing or orally is not the Court’s concern, provided it complies with section 125 of the CYFSA. Providing “pretty limited” information does not comply. It is concerning to hear a state agency, like a police force, make a pronouncement of this nature.

F. The Durham Police’s “Time and Resources” Argument

[263] Finally, as it pertains to the “time and resources” argument of the Durham Police, I accept that its duty to report in section 125 will often require it to act with the utmost timeliness. However, the Durham Police should not, in a blanket fashion, be taking one approach over another in discharging that duty.

[264] The Durham Police are entitled to redact certain third party and other information to balance the various interests that are at stake: see section 8 of the MFIPPA and the MOU itself. The Society could also undertake appropriate redactions, either on its own or in concert with the Durham Police. There is no requirement that a court order be obtained for this to occur, to balance any concerns that the Durham Police have about over-disclosing. This could also be done after providing the report, but before a case comes before the Court for that matter, too.

[265] In this case before me, redactions were not done before hand. The Society chose to then follow the aforementioned “practice”. In those circumstances, and having regard to the years of out of court involvement before the Society even launched this proceeding, I see little justification for the Durham Police’s:

(a) refusal to engage in redactions earlier;

(b) refusal to provide its consent to the use of the records already in the Society’s possession, after the Society sought that consent from it, between the first appearance in this case and the argument of the records motion;[^13]

(c) refusal to engage in any redactions once the Society sought that consent, if it was concerned about the dissemination of third party, confidential information, or other problematic information; and

(d) insistence on a records motion and a court order.

[266] The “time and resources” argument is further weakened by the fact that the Durham Police then had to undertake the very redactions it would not consent to do, once the disclosure Order was made. And this argument fails to recognize that in this case, the Society’s and the Durham Police’s own interpretation of their MOU just shifted a large part of the “time and resources” burden onto the Court.

G. The Impact of this Approach

[267] Temporary care and custody hearings are supposed to be dealt with promptly after a case begins. It should not be common practice for these motions to be adjourned, to allow the Society to bring a different unnecessary motion for directions, to get a ruling that it can use admissible evidence already in its possession. In the process, the Society early on asked this Court to place these children into a placement, that the Court has now found not to be appropriate, now that the evidence, some of which the Society had but did not share, has been fleshed out. This Court should never have been put in that position.

[268] It took some four appearances before the main motion was finally heard. This approach detracted from the Court’s duty, and ability, to deal with cases justly and to manage the cases that come before it. Notably, this impacted the Court’s responsibility to give appropriate court resources to the case while taking account of the need to give resources to other cases, and to deal with as many aspects of the case as possible on the same occasion: see rules 2(3)(d) and 2(5)(f) of the Family Law Rules.

H. Conclusions Respecting the Records Motion

[269] In this case before me, I am not finding that the Society withheld information with the intent to mislead the Court. However, this Society has now demonstrated repeat behaviour of coming before this Court with just enough evidence to cause the Court to be concerned for the safety of a child, but insufficient evidence for this Court to fully conduct all of the required analysis at a temporary care and custody motion. As a result, exactly like what occurred in DCAS v. G.S., the incomplete evidence proffered by the Society led to a multitude of questions by the Court and answers from the Society that only led to more questions. This inevitably caused the Court to be forced to adjourn the motion for the Society to compile more thorough affidavit evidence, which frankly should have been before the Court on the first appearance of the temporary care and custody motion.

[270] In concert with the Durham Police, the Society has acted yet again according to a “practice” that is not required by the governing legislation and its own MOU, and that it knew or ought to have known was problematic given its own prior litigation in DCAS v. G.S. over the very same issue.

[271] In conclusion:

(a) The Durham Police have a duty to report under section 125 of the CYFSA. It is ultimately up to the Durham Police to decide how it will discharge that duty, perhaps recognizing that it has already entered into a written agreement with the Society and DBCFS that it will provide written reports. Whatever it does in the future, it must ensure that the information it provides is adequate having regard to the applicable statute and legal principles that apply respecting its duty;

(b) The “current practice” that the Society and the Durham Police are following, over which they are not even ad idem with DBCFS, is neither required nor provided for in either the legislation, the regulations or the MOU itself. Counsel for the Durham Police themselves conceded this during argument. It has also adversely impacted the Court’s process in this case and exposed the children to risk and delay;

(c) A motion under section 130 of the CYFSA will normally not be required for the Society to use police occurrence reports already in its possession, or the information contained therein, when it has to bring a matter to Court;

(d) The Society must file balanced, credible and trustworthy evidence to discharge its onus respecting all aspects of the legal test that it must meet, not just about the removal;

(e) In the future, the Society will have to assess whether a social worker’s affidavit containing sufficient, comprehensive, and balanced details, versus a report already in its possession will be adequate. The Society needs to think about what the best evidence is. This assessment will depend on the circumstances of the case, including the extent to which the contents of a report are pivotal to an issue that will be before the Court on a temporary care and custody motion. Withholding relevant evidence should never be an option; and

(f) The Society is reminded that it has other, constitutional disclosure obligations to the parents respecting the information in its file, that do not first depend on the Court making an order under section 130.

[272] No one asked me to declare that the MOU is invalid to the extent that of any inconsistencies with the governing legislation, the regulations or the case law and legal principles that apply at a temporary care and custody hearing, so I will not do. However, and except regarding my comments about the mandatory nature of the duty to report above, the sections of the MOU that I have cited are actually consistent with the governing law. It is the Society’s and the Durham Police’s practice or interpretation, purportedly pursuant to the MOU that runs afoul of it. In any event, if the MOU conflicts with the legal framework set out above, the legal framework prevails. Both the Society and the Durham Police must act in accordance with the law.

I. The Impact of the Society’s Choice to Work With this Family Out of Court For So Long

[273] There is an emphasis in the CYFSA on early intervention and community support services to reduce the need for more disruptive services and interventions: see for example the preamble to the CYFSA and section 1(2). Another of the “other purposes” of the CYFSA in section 1(2)(2.) is that the least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provisions of prevention services, early intervention services and community support services, should be considered [my emphasis added]. This does not mean that bringing a case before the Court is to be avoided at all costs. In some instances, a proceeding is mandatory. Delaying doing so may in the end cause more intrusion into the family, that could have been avoided. It can also raise unnecessary jurisdictional issues.

[274] For example, in CFS for York Region v. JR and JE, 2022 ONSC 5979, A. Himel J. found just that, in a case that had many of the same hallmarks as this case before me. She implied, if not expressly said, that the case ought to have been brought before the Court earlier, and the delay likely contributed to less intrusive dispositions being unavailable. That was contrary to the preamble and the purposes of the CYFSA.

[275] At ¶ 27, Himel J. wrote:

[27] The parties consistently engage in high conflict and abusive interactions, and they do not follow the Society’s directions about having third parties present or the need to avoid conflict. No meaningful steps have been taken to respond to the protection concerns, yet the Society seems open to the parties’ plan to reconcile. The parties’ agreements to protect the children from conflict and to comply with safety plans are not reliable.

[276] At ¶ 29 and 30 she wrote:

[29] The fact that neither child has suffered physical harm is a function of good luck, not appropriate parenting nor appropriate oversight by the Society.

[30] It is abundantly clear that this family is in crisis. I am very concerned about the risk of emotional and physical harm to the children.

[277] After going through the numerous deficiencies in the safety plan, at ¶36 she wrote:

[36] The newly proposed supports may have been sufficient to protect the children at the early stage of the Society’s involvement, and it is unfortunate that they were not previously put into place. However, these supports do not address the serious nature of the protection concerns (stemming from the incidents and issues) or father’s current ability to care for the children in the evenings, overnight and on weekends.

[278] The trajectory of this case before me has been impacted in the following ways:

(a) During the past periods of time that the Society kept this case out of the Court, there was a proceeding under the CLRA. The Order made in that case did not last. I have already indicated a concern that the Court in the prior CLRA proceeding could not have been given all of the evidence it needed for a best interests’ analysis;

(b) The parents did not earlier get access to legal resources, like duty counsel and legal aid. When a child protection case is brought before the Court, the availability of these resources are brought to the attention of parents, and the Court often uses its oversight to ensure that they are accessed;

(c) There was no court oversight in a child protection context, to ensure that the Society was taking appropriate actions, to ensure that the family and the children were being serviced appropriately, and to ensure that the parents were following through and meeting expectations;

(d) Legal issues were made more complicated than they needed to be, such as the question of who had “charge” of the children, when the case was finally brought before the Court; and

(e) Evidentiary issues were made more complicated. I have just addressed those.

[279] There now needs to be a re-set. The work to address the protection concerns must begin again.

PART VII: ORDERS

[280] Based on the foregoing, I make the following Orders:

Temporary Care and Custody

(a) The children A. F-S. and D. F-S. shall be placed in the temporary care and custody of the Society;

(b) The child, J. T. L. F-V. shall remain in the temporary care and custody of the Society subject to the terms set out below, and a further review; and

Terms and Conditions Pertaining to All Three parents

(c) There shall be terms and conditions pertaining the mother and C.S. and A.V. as set out in paragraphs 1(a), (b), (c), and (e), (j) and (k) of the Society’s Amended Notice of Motion dated July 19, 2023;

Specific Terms and Conditions Pertaining to the Mother and C.S.

Terms Relating to the Mother’s and C.S.’ Relationship Status and Housing

[281] I am not clear about the mother’s and C.S.’s relationship status, as this too continued to be unstable in the weeks before this motion was heard. There is some recent evidence that the parents were living in a motel program at Cornerstone. They may have separated and then reconciled. As such, the program required the mother and C.S. to sign a behavioural contract. The parents may have some supports in their search for housing through Cornerstone and elsewhere. I find this needs to be fleshed out.

[282] Therefore, I make the following additional Orders:

(a) Within 21 days, the Society worker shall meet with the mother and C.S. to get an update about their relationship status;

(b) Within 21 days, the Society worker shall meet with the mother and C.S. to obtain specific information about what supports they have in place to aid them in their search for housing;

(c) At this meeting, the mother and C.S. shall provide a copy of the behavioural contract that they signed at Cornerstone to the Society. If they do not have it and cannot provide it, or if they otherwise fail to provide it, the Society is at liberty to obtain a copy directly from Cornerstone and it may rely on this Order in so doing;

(d) The Society shall obtain an update from Cornerstone as to any further issues with the mother and C.S.;

(e) The Society shall make its best efforts to make a referral to an organization that can actively assist the mother and C.S. to find housing, to the extent that they do not have this. The mother and C.S. would benefit from specific social work support to help them make inquiries, attend showings if needed and follow through. If any such referral is made, the Society shall then monitor the situation to ensure that the mother and C.S. access the service and use it;

(f) The Court notes that the Society has already undertaken to provide the mother and C.S. with first and last month’s rent once they find housing. The Court therefore expects this to be provided;

(g) At the meeting, the mother and C.S. shall provide a list of other supports that they say they require from the Society, and the Society shall consider the list;

(h) If the parents are in fact still in a relationship, the Society shall also create up with these parents with a specific plan for relationship counselling for these parents;

(i) This Court reserves the right to make further orders for additional terms and conditions;

Terms Relating to the Mother’s and C.S.’ Mental Health

[283] The mother and C.S. need mental health support. The evidence before the Court about the parents’ mental health is largely, although not exclusively, based on self-reports, and police reports documenting disclosures that were made to the police.

[284] In regards to the mother specifically, Ms. Hobbs reported that the mother self-identified as having a long-standing struggle with mental health difficulties, including a self-reported diagnosis of borderline personality disorder and PTSD. The mother said she is off medication due to her pregnancy. While the mother used to have a psychiatrist, that is no longer the case according to Ms. Hobbs. As of February 7, 2023, a family doctor reported to Ms. Hobbs that the mother is on a wait list for another psychiatrist. Mention has been made of Ontario Shores. There has been some involvement with the Canadian Mental Health Association for C.S.

[285] The first step here is to confirm who is actually involved respecting these parents’ mental health. The Society needs to confirm what diagnoses have already been made, and whether (most likely) a further assessment is needed. The Society needs to explore the issue raised about medication. There needs to be some understanding about what treatment should be pursued.

[286] Therefore, I make the following additional Orders:

(a) At the meeting referred to above, the mother and C.S. are to make their best efforts to provide to the Society a comprehensive list of the various medical professionals and hospitals that have been involved since 2020, subject to a further request for additional information before 2020 if needed. This includes any hospitals pertaining to the hospitalizations, the family doctor, Dr. Wade (who was referred to in the affidavit evidence), the involvement of Ontario Shores (also referred to) and the Canadian Mental Health Association (also referred to). I have already ordered the parents to sign directions for the release of information above;

(b) The Society shall then use the signed directions the mother and C.S. are to provide, to obtain sufficiently comprehensive information and disclosure from the sources as needed, to get an accurate picture of the mental health diagnoses and treatment recommendations;

(c) As indicated above, it is likely that assessments are required. While I am ordering the Society to consider and assess the information obtained, it is the Court’s expectation that it will come before the Court in short order with a specific plan for any mental assessments needed. This means the names, CVs and consents of any persons it proposes might undertake these assessments. Either way, the Court will need to know either way, what the already existing diagnoses are, made by whom, the dates of those diagnoses and whether there is a current treatment plan, to ultimately decide any question about the need for further assessments; and

(d) This Court reserves the right to make additional orders for terms and conditions relating to mental health and counselling once these items are fleshed out, or if necessary, it will set a process for argument pertaining to these items.

Legal Representation for the Mother and C.S.

[287] Counsel should not acknowledge a Legal Aid Certificate and then come to Court and announce an inability to act based on a conflict, as happened in this case. Proper screening ought to have been undertaken beforehand.

[288] These parents need help sourcing counsel. Therefore, the Society shall immediately seek the consent of the mother and C.S. to provide their names and contact information to Stan Jenkins at Legal Aid Ontario and to the president of the Ontario Association of Child Protection Lawyers. If the parents provide this consent, (which they should), then I Order the Society to make a request of both these persons to help these parents find counsel.

[289] If necessary, a copy of this decision may be provided to Mr. Jenkins and to the President of the Ontario Association of Child Protection Lawyers by the Society.

[290] This Court is prepared at this time to authorize zoom appearances for any out of town counsel, except for trial, and except perhaps if there is another significant event in this case that necessitates an in person attendance.[^14]

Other Terms and Conditions Relating to A.V., and J.’s Access

[291] I make the following additional Orders respecting J., including terms and conditions and access pertaining to A.V. and J., to put in place the mechanisms to see if J. may come out of care:

(a) Provided that A.V. continues to live with the paternal grandmother, A.V. shall arrange for suitable sleeping accommodations for J. as soon as possible and shall make his home available to the Society to inspect. This is to occur immediately, and if he requires the assistance of the Society, he is to let the Society know and the Society is to obtain reasonable instructions about any supports it might provide;

(b) Once this occurs, and provided he continues to live with his mother, A.V. shall have access to J. in his home every weekend, from Friday after school or at 5:00 pm until Sunday at 5:00 pm. The Society shall make drivers available to ensure that this occurs, if needed;

(c) A.V. (with his mother) is to commence his search for larger accommodations as both undertook to do at this motion. If he requires assistance with this, he is to reach out to the Society to make inquiries of any support that it might offer. The Society is to obtain reasonable instructions about any supports it might provide;

(d) The Society shall obtain complete school records for J., to include his OSR. To be clear, I am referring also to reports cards, attendance records, any assessments and so forth. In addition, it shall solicit recommendations in writing about J.’s schooling and academic issues, to include any recommendations about French Immersion, whether any assessments are needed, and what additional educational supports should be put in place. The Society is to make its best efforts to do this within 21 days;

(e) A.V. has the right to make the same inquiries and to be given the same information directly;

(f) This information obtained by the Society is to be shared with A.V., and with the mother and C.S. immediately once it is obtained;

(g) As soon as possible thereafter, the Society and A.V. are to meet to create a plan for J.’s education, to include where he will go to school, including if J. comes out of care and into the care of A.V., in what stream (English or French), whether any educational assessments required and if so how will these get done, whether any additional supports, like tutoring required, and they shall create a plan to ensure that J. will get to school if in A.V.’s care, including with the use of drivers if that is needed. I recommend that the paternal grandmother be invited to this meeting, since she is a part of A.V.’s plan. A.V.’s counsel is of course also free to participate if A.V. wishes;

(h) The results of this plan are to be shared with the mother and C.S., and with the Court, once it is prepared;

(i) During his parenting time, A.V. may take J. to visit his half brother and cousins at N.J.’s home, but he shall not leave J. alone in N.J.’s home on a without prejudice basis. Either A.V. or the paternal grandmother shall be present. The Court will review this term once the Society meets with N.J. and assesses the conditions of her home. This will require the cooperation of N.J. which I cannot compel, but I urge the father or his counsel to have a conversation with N.J. to secure her cooperation;

(j) There has been some mention of counselling for J. in the material before the Court. Specific services and proposals are to be brought to the Court’s attention; and

(k) I reserve the right to make further Orders respecting any of these terms, or J. coming out of care once this information is presented to the Court.

Other Terms and Conditions Pertaining to All Three Parents

[292] If the Society is of the view that any other specific services are required for either of the parents, these may be brought to my attention and I reserve the right to make additional Orders.

Other Access Orders

[293] In regards to other access, I make the following Orders:

(a) The access Orders sought pertaining to the mother and C.S. as set out in paragraphs 2 and 3 of the Society’s Notice of Motion dated July 19, 2023 are granted;

(b) In addition, the Society is given the discretion to make arrangements for the children to see each other regularly;

(c) The Society has the discretion to arrange for the children to see their great grandparents at church on Sundays, on condition that neither C.L. nor J.L. are in attendance. If there is any evidence that either C.L. or J.L. are in attendance then the visits are to be suspended;

(d) The Society is not to exercise its discretion to permit visits in the great grandparents’ home;

(e) Finally, if the Society allows church visits, this should not be done in a fashion to significantly impede A.V.’s weekend access, at least until the Court is able to decide whether J. may come out of care. The priority right now has to be on working with A.V. to see if a potential placement in his care can happen, and if, to ensure that it succeeds; and

(f) Otherwise, there are too many logistics to sort out, given the number of children and parents involved, for the Court to order anything more detailed. The parties, perhaps with the assistance of the OCL, are to endeavour to come up with a joint plan implementing the above, but which contains all of the necessary logistics, to present to the Court, and the Court will consider making a further Order.

Sealing Order

[294] The unredacted police records, currently in the Court File in a sealed envelope, shall remain sealed subject to further Order of this Court.

Costs

[295] If anyone seeks costs, this may be brought to my attention at the next Court date, and I shall set a process to deal with that.

Return Date

[296] The next date is already scheduled for September 1, 2023 @ 10 AM by zoom. There is much work to do and some of the above may not be complete by September 1, 2023. Nevertheless, the parties should be prepared to address as much as possible on that date, and I will scheduling a further date to continue with any of the above work, not then completed. Updates about the above to be provided in sworn form so that there is evidence before the Court in case the Court needs to make further Orders.

Release of this Decision

[297] In addition to the parties and counsel for the OCL, a copy of this decision shall be sent to Ms. Scovino and to counsel for the Durham Regional Police Services.

Other Proceedings

[298] If there are any other proceedings brought in this jurisdiction concerning children of these parents, then they are to be made returnable before me. I will case manage them.

Justice Alex Finlayson

Released: August 21, 2023

COURT FILE NO.: FC-23-13

DATE: 20230821

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Durham Children’s Aid Society

Applicant Society

• and –

D.F., A.V. and C.S.

Respondent Parents

REASONS FOR DECISION

Justice Alex Finlayson

Released: August 21, 2023

[^1]: All three parents have lived with the great grandparents at different times in the past. Further details about the parents’ and the children’s residential histories are set out below.

[^2]: I discuss the prior proceedings between May 12, 2023 and the ultimate argument of this motion on July 31, 2023, below.

[^3]: By attaching this letter to Ms. Hobbs’ May 12, 2023 affidavit, this evidence consists of multiple levels of hearsay.

[^4]: Ms. Manji later clarified that there were actually 17 reports.

[^5]: The source of most, but not all of A.V.’s information, was the mother.

[^6]: The mother advised the Court that the Society had not done a thorough walk through of the home, including the basement (where C.L. and J.L. apparently reside or resided).

[^7]: A.V.’s mother was not in attendance but I was told did not oppose the production order. Neither the great grandparents, J.L. nor C.L. attended.

[^8]: The great grandparents were not present at the first appearance.

[^9]: Atenolol is apparently a medication used to treat high blood pressure.

[^10]: I am not referring to information that is protected by privilege or that should be redacted on some other legal basis.

[^11]: See the definition of “institution” in section 2(b) of the MFIPPA.

[^12]: See the definition of “service provider” in section 2(1)(c) of the CYFSA.

[^13]: According to Ms. Hobbs’ affidavit of May 12, 2023, the Society may have even tried to get the consent before it launched this proceeding.

[^14]: For example, Ms. Velez is in Toronto, but she came to Court to argue the motion on July 31, 2023. That was a long motion and it was important, not just as a matter of advocacy, that all of the persons involved in this case be before the Court.