WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
2023 ONSC 5011
COURT FILE NO.: FC-21-21-01
DATE: 20230905
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Dnaagdawenmag Binnoojiiyag Child & Family Services
Stephanie Redfearn, for the Applicant
Applicant
- and -
S.S.
Vanessa Obaseki, for the Respondent mother
Respondent mother
- and -
M.S.
Mira Pilch, agent only, for the Respondent father
Respondent father
Mark Borden, for the Office of the Children’s Lawyer, for the child, L.S.
HEARD: August 22 and 23, 2023
JUSTICE ALEX FINLAYSON
PART I: NATURE OF THIS MOTION
[1] This is a status review proceeding that concerns a girl named L.S., who is almost 11 years old. S.S. is L.S.’s mother (the “mother”) and M.S. is her father (the “father”). The mother has another child, A.S., age 5, from a subsequent relationship with A.S.’ father K.C.
[2] The Durham Children’s Aid Society (the “Society”) removed the child from her mother’s care, and then it launched the original protection application on July 16, 2021. It did so after having worked with the mother, on and off, out of court for years before hand.[^1] L.S. has been in her father’s care since a few days before the protection application as a result of the removal. That arrangement was then confirmed in the temporary without prejudice order of Hughes J. on July 16, 2021. Notably, that is the arrangement that has now been in place for over two years. After the removal, A.S. went into the care of her grandparents. Hughes J. similarly placed A.S. in their temporary without prejudice care on July 16, 2021 as well.
[3] Pursuant to the Final Consent Order of this Court dated July 25, 2022, L.S. was later placed with the father under a four-month supervision Order. The mother had access every weekend, supervised by the maternal grandfather initially, but with a gradual relaxation of the supervision over time pending the status review. M.S. and L.S. live elsewhere in the Greater Toronto Area (the “GTA”), outside of Durham. Nevertheless, M.S. has been doing all of the driving back and forth each weekend to facilitate the mother’s access.[^2] A.S. was placed with the maternal grandparents under a four-month supervision order on July 25, 2022 as well, with regular supervised access to the mother, which also relaxed over time.
[4] The first appearance on this status review was on November 18, 2022. Dnaagdawenmag Binnoojiiyag Child & Family Services (“DBCFS”) is pursuing reunification of both children with their mother, but it focused on A.S.’ return to the mother first earlier on in this round of the proceedings.
[5] This case concerning A.S. resolved on consent on May 25, 2023, by way of a Statement of Agreed Facts dated May 12, 2023. In the result, A.S. was placed in her mother’s care on a final basis pursuant to an Order under section 102 of the Child Youth and Family Services Act, 2017 (the “CYFSA”). DBCFS, the maternal grandparents and the mother each agreed and represented to the Court that the mother had shown significant progress respecting her sobriety and mental health, and that she had a sufficient support network for A.S. K.C. was noted in default. M.S. neither signed nor opposed this Final Consent Order, with the parties’ agreement that the facts in the Statement of Agreed Facts were not binding in the case about L.S. The grandparents, who had only provided care for A.S. and not L.S., were removed as parties at that time, also on consent.
[6] The status review concerning L.S. remains unresolved. DBCFS brings this motion to change L.S.’ placement on a temporary basis, to have her return to her mother’s care at this time. DBCFS’ motion is supported by both the mother and counsel for the Office of the Children’s Lawyer (the “OCL”) for L.S. They asked that the motion be scheduled earlier in the summer with a view to L.S. starting school in Oshawa today. The Court did schedule this motion earlier as asked, but there was an unfortunate delay to this hearing. The father lost the assistance of the former counsel helping him on a limited scope basis with the preparation of his material because of a medical leave of that lawyer. Despite that, the parties had agreed and implemented some expanded parenting time between the mother and L.S. over the summer pending the argument of this motion.
[7] If the Court grants DBCFS’ motion, DBCFS and the mother would not now have the Court order similar access between the father and L.S., as that which the mother enjoyed under the Final Order of July 25, 2022. Rather, they say that this father, who by all accounts has provided good and stable care for L.S. over the past 2+ years, should only have access on alternating weekends. Moreover, the mother initially took the position that the father should continue to do all the driving, too.
[8] The father does not have a cross-motion before the Court. While the father would have the Court both dismiss this motion, reduce the mother’s access so that he can have some weekend time too, and perhaps share the driving, his principal position during oral argument was that DBCFS’ motion raised triable issues and should be dealt with at trial. As the father is really just seeking a dismissal of this motion, the status quo set out in the Final Order of July 25, 2022 respecting both the placement and the mother’s access would continue until trial if he succeeds: see section 113(8) of the CYFSA.
[9] For the reasons that follow, I agree with the father’s position. The motion is dismissed. Below, I give directions respecting trial preparation.
PART II: PRIOR PROCEEDINGS
A. The Society Launched A Protection Application on July 16, 2021
[10] According to the original protection application, the Society’s concerns related to the mother’s mental health and ongoing alcohol abuse going back over several years. For example, the protection application states that the mother admitted a diagnosis of Borderline Personality Disorder, Anxiety and Depression. The protection application made reference to a past admission to a hospital under the Mental Health Act in 2015. Despite that, the Society closed its file at the time. There were more file openings and closings in the four years that followed, between 2016 and 2020. These appear to have related to the mother’s alcohol use, relapses, and related problems. The most recent incident that finally precipitated the protection application came in late May of 2021, when the mother’s addictions counsellor at Pinewood reported that the mother admitted to drinking two bottles of wine in the evenings.
[11] In approximately the two weeks that followed that report, the Society made efforts to intervene, with the grandparents’ support and supervision. Those efforts did not succeed. And, on July 14, 2021, the grandparents told the Society that they could no longer supervise the mother’s care of the children. They subsequently advised the Society that they were only able to care for A.S. It is this sequence of events that led to the separation of the siblings. That occurred at a time when A.S. had just turned 3 years old; L.S. was 8. I mention this in light of some of the arguments now being made about the separation of siblings, which I address in more detail below.
[12] The protection application states that M.S. expressed frustration to the Society, that the Society had been involved since 2015, yet that had not enabled the mother to overcome her ongoing addiction and mental health issues. This is one of the principal concerns that M.S. continues to articulate today.
B. The Prior Proceedings in the Protection Application
[13] I do not need to summarize each and every Endorsement made in the protection application. I will only summarize the key events in this case.
[14] As set out above, on July 16, 2021, Hughes J. made a temporary without prejudice Order placing L.S. in the care of her father M.S., and A.S. in the care of the grandparents. She ordered a number of terms and conditions, supervised access between the mother and both children, and supervised access between K.C. and A.S.
[15] The protection file was transferred from the Society to DBCFS on November 10, 2021. The mother identified as a Métis person. Although the father originally opposed the transfer, it did occur on consent, without the need for a transfer motion.
[16] On March 25, 2022, DBCFS advised the Court of its plan to pursue a placement of L.S. with the father under a supervision Order.
C. The Final Supervision Order dated July 25, 2022
[17] As is also set out above, on July 25, 2022, based on a Statement of Agreed Facts filed, I made the statutory findings, including a finding that both children are First Nations, Inuk or Métis children, I found both children to be in need of protection pursuant to sections 74(2)(b)(i) and (ii), and (h) of the CYFSA, and I made supervision orders placing L.S. in M.S’s care and A.S.’ in the grandparents care for four months on various terms and conditions. The access terms that I ordered on consent, are set out in Part I to these Reasons for Decision.
D. The Prior Proceedings in the Status Review
[18] As already explained, in this status review DBCFS proposed a graduated return of the children to the mother, with A.S. to be reintegrated first, and with L.S. to follow about 7 months later. At several of the early appearances, the parties dealt with procedural issues, including the grandparents’ party status and how the status review would resolve given that there were two children within the same application, but some of the parties’ interests, or their rights to participate in the case, really pertained only to one, but not both children, practically speaking.[^3] The parties also discussed how A.S.’ graduated return to the mother would be implemented on the merits.
[19] On January 27, 2023, DBCFS put its plan for A.S.’ return to her mother on pause. The Endorsement of that date reveals that concerns had been raised about the fact that the mother had a new partner in her home, there were concerns about family violence and alcohol use, and concerns about the “parentification” of L.S. had been raised, too. By March 8, 2023, the reunification plan was back on track. There was no opposition to the plan for A.S.’ return; M.S. opposed L.S.’ return.
E. The Final Section 102 Order of May 25, 2023 Concerning A.S. and the Scheduling of this Motion
[20] By May 12, 2023, the parties resolved a number of procedural issues enabling them to settle the case concerning A.S. without prejudicing M.S.’ position respecting the remaining issues about L.S. The Court was advised of DBCFS’ plan to submit a Statement of Agreed Facts for a section 102 Order for A.S. Once the case concerning A.S. was resolved, the grandparents were removed as parties on consent. K.C. did not file an Answer and Plan of Care, and he was noted in default when the final Order was made on May 25, 2023.
[21] That left only issues pertaining to L.S. outstanding. On May 12, 2023, the Court scheduled this motion to be heard on July 11, 2023. The Court made a scheduling Order.
[22] On June 28, 2023, the father filed a 14B Motion seeking an adjournment of this motion due to the unexpected medical leave of the lawyer who was helping him. On July 11, 2023 I adjourned the motion to August 22, 2023. I made a new scheduling Order. This motion was argued on August 22 and 23, 2023.
PART III: THE TEST TO CHANGE A FINAL SUPERVISION ORDER ON A TEMPORARY BASIS WITHIN A STATUS REVIEW
[23] Section 113(8) of the CYFSA states that during a status review, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.
[24] There are two lines of authorities about the threshold to vary a supervision order in a status review pending its final resolution, one line of cases being more stringent than the other. These lines of authorities consider the amount of threshold change that must be demonstrated, in the context of the statutory framework and policy considerations. In so doing, courts also consider the child’s best interests using the factors in section 74(3), as section 113(8) directs.
[25] At ¶ 14-17 of Catholic Children’s Aid Society of Toronto v. W.P.P., 2020 ONCJ 388, Sager J. summarized the two lines of authorities as follows:
[14] One line of cases enumerates a test that mandates a material change in the circumstances of the child such that a change in placement is required to meet her best interests. These decisions emphasize the need to demonstrate a material change or a significant change before it will alter a care and custody arrangement found to be in the child’s best interests following a trial or based upon agreed findings of fact set out in a Statement of Agreed Facts.
[15] The courts in these decisions stress the importance of not interfering with a status quo created by a final order lightly especially when the affidavit evidence on the motion to vary the final placement on a temporary basis is untested. Due to the importance of stability and continuity of care for a child in a child protection proceeding, some courts have interpreted subsection 113(8) and more specifically the use of the words “require a change” to mean that the court must find that the change in circumstances is significant such that it creates a need for a change as opposed to the change being “merely desirable”. See: Kawartha-Haliburton Children's Aid Society v. A.R. and D.F., 2020 ONSC 2738; Catholic Children's Aid Society of Toronto v. K.G., 2020 ONCJ 208; CAS Algoma v. S.S., 2010 ONCJ 332; and, Children’s Aid Society of Toronto v. S.G., 2011 ONCJ 746.
[16] The other line of cases state that it is not necessary to import the test of material change in circumstances into subsection 113(8) of the CYFSA and rather what is required is to demonstrate that there has been sufficient change that effects the child’s best interests requiring a change to her placement. What is sufficient depends on the circumstances of the case. See: The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), 2016 ONSC 5925 and Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., M.E., and I.B., 2020 ONSC 1435.
[17] At paragraph 26 of The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), Justice P.W. Nicholson rejects the need to find a material change in circumstances and says, “Although the order at the conclusion of a child protection application is considered a final order, child protection proceedings in general should be considered fluid until the matter is finalized either by termination of all protection orders or a crown wardship order. Therefore, the court is not bound to find a material change in circumstances before a final order made under a child protection application can be varied. The court is called upon at this stage to determine what is in the best interests of the child.”
[26] At ¶ 19-34, Sager J. determined that the more flexible approach should apply. She considered the purposes of the legislation, principles of statutory interpretation and she distinguished the requirement to find a “material change” found in other kinds of family law cases as not being appropriate in child protection litigation. In the end at ¶ 34 she wrote:
In order to determine whether there should be a temporary change to a final care and custody order on a Status Review Application, the court must consider all of the relevant and reliable evidence on the motion within the context of the case as a whole, and decide if the evidence demonstrates that a change in the child’s life has taken place that impacts their best interests requiring a temporary change to their placement pending final adjudication of the Status Review Application.
[27] In Children’s Aid Society of Brant v. A.H., 2020 ONCJ 49, Hilliard J. agreed with Sager J.’s approach on the threshold issue of change. However, she added a further nuance that a different amount of change may be appropriate when the request is to change a placement, versus a request to change parenting time. Hilliard J. referred to the test to change parenting time as being “significantly lower”.
[28] The parties generally agreed that the Court should apply the flexible approach articulated by Sager J. in conducting its analysis. DBCFS added though, that this Court should find the test is met on either iteration of the test. By contrast, the father argued that the mother had not even met the flexible threshold. While I agree with and will follow Sager J.’s (and Hilliard J.’s) flexible approach to the question before the Court, it is nevertheless my view that the determination of where L.S. should be in the longer term needs to be dealt with by way of a trial on a full record.
PART IV: ANALYSIS
A. The Placement Priorities in the Respective Legislation
[29] Unlike in a protection application, section 113(8) of the CYFSA requires that the governing Order continue unless the above considerations are met. The Court is not required to consider a return to the pre-intervention caregiver in the same fashion as it is at the protection stage.
[30] However, an Act respecting First Nations, Inuit and Metis children, youth and families, S.C. 2019, c. 24 (the “Federal Act”) is also engaged here, given that L.S. is an FNIM child. That legislation has different provisions respecting a child’s placement.
[31] As Madsen J. wrote at ¶ 63 of Children’s Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744, section 4 of the federal act operates as a minimum standard. Where the standards under the CYFSA surpass or exceed the federal legislation, the CYFSA will apply. Where the standards under the federal act surpass or exceed those in the CYFSA, the federal act will apply.
[32] Section 16 of the Federal Act provides priorities for the placement of an Indigenous child to the extent consistent with the best interests of the child. In the circumstances of this case though, I find that section 16 is operating harmoniously with section 113(8) of the CYFSA, not in conflict with it, obviating the need to apply one piece of legislation in priority to the other.
[33] For example, the first priority in section 16(1)(a) of the Federal Act is for the placement of L.S. with one of her parents. That is already the governing arrangement (which is to continue under section 113(8) of the CYFSA unless varied).
[34] Above, I explained how it came to be, that L.S. and A.S. began living in separate households. I mentioned that because of the argument below, that L.S. wishes to be reunited not just with her mother but also her half-sister. Although the separation of siblings was not specifically argued with reference to the section 16(2) of the Federal Act, I consider section 16(2) here.
[35] Section 16(2) states that when the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child’s family, must also be considered in the determination of whether a placement would be consistent with the best interests of the child. I recognize that were the Court to change L.S.’s placement from the father to the mother at this time, the children would both be living in the same home under section 16(2), and they would still be living with a parent (now the mother) for the purposes of section 16(1)(a) of the Federal Act. However, section 16(2) also provides for an alternative, that the children live near each other.
[36] Based on the record before me, although the parents live in different cities within the GTA, in light of the father’s efforts and his demonstrated pattern of driving over 200 kilometers each week to ensure that L.S. sees her half-sister regularly, the children live near each other. This other option under section 16(2) of the Federal Act likewise operates harmoniously with section 113(8) of the CYFSA on the facts of this case.
[37] In any event, at this stage of the case, I am mindful of the reason why the siblings were separated in the first place. L.S. and A.S. have different fathers. There were protection concerns about A.S.’ father too when this case began. He has since been noted in default. The mother could not care for either child. M.S. has only planned for L.S., not A.S. The grandparents would only care for A.S. The best plans for a placement with a parent, and then other family members (who qualified as “adult members of the child’s family” - the second priority in section 16(2)(b) of the Federal Act) were put in place at the time. It was not possible to have both siblings live in the same household, and to implement the first priority in section 16(1)(a), that both children would be with a parent.
[38] The concept of avoiding the separation of siblings may very well take on greater weight in the final analysis. If so that may militate in favour of L.S.’ return to her mother. But at this temporary stage of the case, the children have now lived in separate households for over two years, and in L.S.’ case, she has had much stability with her father. Whether it is in the children’s best interests for there to be a change such that they live in the same household, as opposed to near each other as is currently the case (both options in section 16(2)) should be considered in the full context at trial.
B. Analysis Respecting L.S.’ Best Interests
[39] Section 1(1) of the CYFSA sets out its paramount purpose, which is to promote the best interests, protection and well-being of children. The best interests test in section 74(3) that applies in a protection proceeding, contains a lengthy list of criteria that the Court must consider when making determinations in a child’s best interests. In particular, the Court is required to consider L.S.’ views and wishes, but placed into context and weighed appropriately. The Court is required to consider the importance, in recognition of the uniqueness of FNIM cultures, heritages and traditions, of preserving L.S.’ cultural identity and connection to community. The Court is also required in section 74(3)(c) to consider a number of other factors about L.S.’ needs, development, family and community connections, the continuity of care and the possible effect on L.S. of a disruption to that, the merits of DBCFS’ plan, the effects of delay on the child, and two different categories of risk, to the extent any of these enumerated factors are relevant in the analysis.
[40] Sections 9(1), (2) and (3) of the Federal Act provide that is to be interpreted and administered in accordance with the principles of the best interest of the child, cultural continuity, and substantive equality. Section 10(1) provides that the best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an indigenous child. It is the paramount decision in the case of decision or actions related to child apprehension.
[41] Section 10(2) of the Federal Act provides that when considering the factors in section 10(3), primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture. Section 10(3) then provides a non-exhaustive list of factors related to the circumstances of the child that must be considered. The list is similar to those in the CYFSA, although the Federal Act adds two more; family violence and its impact on the child, and any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[42] The list in the Federal Act has already been described as an “augmented best interests test”: see Children’s Aid Society of the Niagara Region v. S.S. and T.F. ¶ 71; see also CAS v. K.C. and Constance Lake First Nation, 2020 ONSC 5513 ¶ 41.
[43] The arguments on this motion focused on the continuity of the child’s care, the degree of risk, the child’s views, and the importance of the child’s identity as an FNIM child. Therefore, that is where I shall focus my analysis. But I also note that these arguments also engage several other best interests’ factors, in both statutes.
(1) The Importance of Continuity in the Child’s Care, the Risk if the Placement Is Changed (Or Remains in Place), and the Degree of Risk that Justified the Finding that the Child is In Need of Protection
[44] I will deal with the arguments about continuity of care and risk, together as they are interrelated.
(i) The Evidence of the Mother’s Improvement
[45] On the one hand, DBCFS notes that the mother has made a number of improvements, both respecting her alcohol misuse and her mental health. There has also been improvement in her attitude towards working with the agency cooperatively. Specifically, child protection worker Ms. Savoy says that the mother has made strides towards “lasting change” including attending AA meeting, creating a support network, having gainful employment, utilizing parenting strategies and keeping her home clean and tidy.
[46] DEBFS describes that the mother had “a couple isolated relapses” over the last two years. It notes that the last confirmed one happened in April of 2022. Nevertheless, Ms. Savoy says that the mother has been sober for over a year.
[47] DBCFS has provided some collateral evidence in support of these statements. For example, attached to DBCFS’ motion material is an unsworn letter of a man named T.G. who is helping her with her recovery before the Court. There is a letter dated May 30, 2022 from Debbie Abriel of the Mental Health and Pinewood Centre of Lakeridge Health from Pinewood, which states that the mother had long standing involvement with Pinewood and engaged in various programming. Ms. Abriel wrote that the mother “identifie[d] meeting her treatment goals and a collaborative decision was made to conclude services with Pinewood”. The file was closed on May 31, 2022.
[48] The mother accessed Pinewood again, on November 10, 2022. This time she accessed the Community Treatment Case Management program. According to the letter of Taylor Prakken dated January 18, 2023, this service offers “individual support, assessment, case management, linking, advocacy and flexibility to meet client needs”. As of the date of the letter, the mother had four appointments with Ms. Prakken.
[49] There is another letter dated April 13, 2023, now from Miranda McCormack, also from Pinewood, too. It reveals that Ms. McCormack took over the mother’s case management in March, due to a “staffing change from her previous addiction counselor, Taylor Prakken”. The letter states that the mother reported meeting her goal of sustained abstinence.
[50] The mother also provided her own evidence about her pathway to recovery through her affidavit. She explains that after the children’s removal in July of 2021, she commenced programs at CAMH and Jean Tweed. She says she has participated in online and in person AA meetings, and she has completed four years of one on one counselling with Debbie Abriel at Pinewood. The mother provided various certificates of completion. She obtained and filed another, updating letter from Ms. McCormack dated June 8, 2023, providing a list of the further appointments with her. That letter also states that the mother has reported meeting her goal of sustained abstinence from substance use.
(ii) The Countervailing Evidence and the Father’s Concerns
[51] In his responding material, the father does acknowledge improvement. But he nevertheless points out that the degree of risk that justified the finding is a long standing one. It has not dissipated just because there has been improvement.
[52] In some detail in his affidavit, the father discussed the mother’s conduct during the marriage. For example, the father says that the mother had become completely overwhelmed with her mental health and addiction struggles as early as 2011.
[53] The father says he sought out resources for the mother. By 2012, the mother agreed to take medication, which she had previously refused to take. But when the mother became pregnant with L.S., she discontinued her medication and her health deteriorated. The father says that the mother started to self-medicate with alcohol after L.S.’ birth.
[54] The father says that the mother had angry and violent outbursts during the marriage. He eventually made the decision to separate. He still arranged for a community of caregivers to assist the mother, and kept in contact daily to ensure L.S.’ safety.
[55] At some point after the separation, the parties entered into a separation agreement that provided for joint decision making. Although there was parental conflict, he says he maintained a strong bond with L.S.
[56] In March of 2015, the Society became involved when the mother was hospitalized because of “alcohol issues and a possible suicide attempt”. The father says that the Society refused to provide him with information about their involvement; as the mother and the grandparents isolated him, and the Society then closed its file, he did not take further steps.
[57] It turns out that in May of 2016, the Society placed the child in his care on an out of court basis, and directed that the mother was to have supervised access for a few hours per week. At that point, he had enrolled the child in school in his catchment area for September of 2016. But then the mother pressured the Society to allow L.S. to return for her care; the father says his concerns were disregarded by the Society. The father says he “succumbed” to the pressure of the Society to allow reintegration on August 29, 2016, provided there were strict conditions.
[58] The father says that after this, information was withheld from him. As a result of this proceeding, the father has now learned of ongoing issues with the mother’s drinking and mental health from the Society’s file disclosure about which he was previously unaware, including her lack of compliance with the conditions he wanted back in 2016. Quoting the father, the Society did “nothing to ensure L.S. was protected in her mother’s care”.
[59] In fact, the father says that for two and a half years, the Society worked with the mother and her parents and did not “inform [the father] of what was going on”. Apparently (according to the father), the Society’s file disclosure reveals that the mother and the grandparents told the Society not to provide him with any information.
[60] The father explains that there were more file openings in closings from 2017 through 2020. In June of 2017, the father himself reported that the mother was drinking in a caregiving role. Another example is in October of 2020; then, it was reported that the mother was driving while intoxicated, hospitalized for binge drinking, and making threats of self-harm and suicidal ideation.
[61] Again, the protection application was launched soon after Ms. Abriel from Pinewood, upon whose collateral letter the mother now relies, called the Society pursuant to a duty to report. According to Ms. Abriel in May 2021, the mother had been dishonest about the amount of alcohol she had been drinking. Ms. Abriel was concerned due to this cycle having repeated itself.
[62] The father says that before this protection application got underway, the grandparents removed L.S. and A.S. from the mother’s care, but did not tell him about it. The father says that the Society’s decision finally to bring this matter before the Court infuriated the mother. According to him that is what caused her to “demand” that her file be handled by DBCFS instead. He did not agree initially.
[63] The father goes on to set out that the mother continued to struggle throughout the protection application. According to the father, the mother also got upset with DBCFS, when it did not initially support reunification with L.S. And according to the father based on his review of the file disclosure, each of Ms. Savoy, a kinship worker and a supervisor have “consistently” stated in their notes that they believed it to be in L.S.’ best interests to remain in his care. This is contrary to the position now being taken.
[64] In response to this evidence, the mother argued that the Court does not assess risk on a status review as in an original protection application. While I agree that the test that applies on this motion is not the same as that which applies at a temporary care and custody hearing in a protection application, the assessment of risk clearly remains one of the court’s tasks in a status review. For example, it is part of the statutory best interests test: see section 74(3)(x) and (xi).
[65] The father does not believe that the reports the mother has obtained are reliable. He does not believe that they tell the full story. He argues that they are based on self-reporting. He even points out that there is a recent case note in DBCFS’ file, that reveals Ms. Savoy was concerned about a text message she received from the mother as recently as May of 2023. In reply to that evidence, Ms. Savoy admits that she sent one of the grandparents to check on the mother.
[66] The father also argues that the mother accesses a babysitter regularly. According to the father, Ms. Savoy related recently, that the mother puts a lot of responsibility on L.S. to help and “doesn’t talk to her like a daughter”. The babysitter apparently reported that the mother will always need help to parent.
(iii) The Continuity and Stability that the Father has Offered L.S. for Over Two Years
[67] Meanwhile the father has rearranged his life to care for the child, while supporting the relationship between L.S. and her mother, her half-sibling, and members of the mother’s family. The father says that L.S. is now very involved in her community, her school, her extracurricular activities and she has a “large circle of friends”. She has regular counselling sessions and is making positive strides. The father has developed a network of his own for the child. In that regard, the father points out that in Ms. Savoy’s affidavit of October 27, 2022, when this status review had just begun, Ms. Savoy said that the child was “thriving” in her current situation.
(iv) The Father Supports L.S.’ Relationship With Her Mother, A.S. and the Mother’s Extended Family
[68] In regards to his support of L.S.’ relationship with the mother and A.S. (and the maternal extended family), the father has made this a priority. As already indicated twice, this includes driving over 200 kilometers each weekend, so that L.S. has been able to see the mother and her half-sibling. He has also engaged in projects and artwork with L.S., for L.S. to give as gifts to her mother and sister.
(v) Conclusions Respecting Continuity of Care and Risk
[69] By all accounts, the father has done a good job caring for L.S. for over two years. He has provided her with stability. He has supported the child’s relationship with her mother, her half-sister and extended family. As such, L.S.’ continuity of care lies with the father. Based on the above evidence, should that continuity be disturbed prior to trial? In my view, the answer is no.
[70] I accept that the mother has made positive strides over the past year. It is important that she be supported and encouraged to continue on this path, both because she is now A.S.’ primary parent, but also because she will have a role in L.S.’ life too, whatever form that takes after a trial.
[71] However, I agree with many of the father’s arguments. In particular:
(a) As the father set out, the mother has had long standing struggles with alcohol and mental health;
(b) The father’s historical account in his affidavit is not irrelevant. It places the protection concerns that DBCFS and ultimately this Court need to address in their proper context. At a minimum when it comes to the risk assessment, his evidence reveals that much of these difficulties occurred during and after the periods of time that the mother accessed the various services listed above. For example, there was much chaos during the four-year period that the mother had continuous services from Pinewood. It needs to be better explored what was done, and what worked or didn’t work. It is not explained why the mother left Pinewood at the end of May 2022, just a month after he latest relapse, only to rejoin in the fall;
(c) The father is correct that most of the positive evidence before the Court is based on self-reporting. For example, according to the letter of January 18, 2023, Pinewood does not provide diagnostic or prognostic information. Their process is to match the client’s intention or readiness to change and the self-reported severity of use with a mutually agreed upon treatment plan and to re-evaluate as a client’s situation changes [my emphasis added]. Clearly though, Ms. Abriel formed the impression somehow in 2021 that the mother was not being truthful, when she made the report to the Society. Ms. Abriel is now no longer working with the mother; nor is Ms. Prakken for reasons that are not elaborated. The evidence of these addictions counsellors, and their cross-examination, will be important;
(d) There is no evidence before the Court of DBCFS’ contacts with these collaterals, to investigate what they had to say outside of the four corners of the letters, and whether that was probed into in any detail.[^4] There is also no evidence fleshing out the treatment the mother received and how that treatment accomplished or didn’t accomplish the mother’s own self-reported goals; and
(e) While there are now supports in place, there is no explanation from the mother in her own material about how she will handle situations differently in the future when she faces adversity.
[72] In my view, the father has pointed out too many facts, based on the file disclosure and other documentation he received, that make a trial warranted. The Court needs to hear from Society witnesses, DBCFS witnesses, the mother’s mental health witnesses and addictions counsellors, and the mother herself, including under cross-examination, to have a full understanding of the progress and that it will in fact be long lasting.
[73] Meanwhile, what is clear, is that this father has re-arranged affairs to provide the stability and continuity for L.S. He has stepped up to become this child’s primary parent when the mother could not parent. His views are entitled to respect. I find he is entitled to have a trial to test this evidence.
[74] I recognize, as DBCFS has argued, that A.S.’ return to her mother has been successful. For example, Ms. Savoy says that A.S. is doing well in the mother’s care under this Court’s Final Order of May 25, 2023. She says that the mother has obtained suitable child care, too. Ms. Savoy also points out that the mother has had several extended visits with the girls without safety concerns. There have been extended visits over this summer. The Court is very pleased to hear this update.
[75] But I do not agree with DBCFS’ arguments, that by cooperating to facilitate extended visits, the father has acknowledged the progress made, and that his recent past conduct in this regard is inconsistent with his position on this motion. To the contrary, the father should be commended for having done this. His agreement to the extended visits over the summer is an acknowledgement of his support of L.S.’ relationships and the mother’s improvements. It is not necessarily an admission that all of the protection concerns have evaporated. The father is taking a balanced, safety informed approach.
[76] I also observe that A.S.’ return to the mother was different. Quite apart from the parties’ agreement that the facts in the Statements of Agreed Facts about A.S. would not apply in this case about L.S., A.S. return to the mother was done in a very graduated way with the support of DBCFS and the child’s caregivers, the maternal grandparents. It was also not opposed. The grandparents remain a vital part of the mother’s plan and support network. And in granting the section 102 Order, the Court also took comfort from the fact that this case concerning L.S. was continuing, and so there would continue to be DBCFS oversight in the mother’s household.
[77] In any event, were this Court to make an interim order for L.S.’ return, and were that to break down, there would not only be significant consequences for L.S.’ well-being, but the Court equally does not want to make an Order that might destabilize the care the mother is providing for A.S. That would be counter to permanency for A.S.
(2) The Child’s Views
[78] I accept that the evidence about the child’s views and preferences is relatively consistent and clear. According to Ms. Savoy, L.S. has been consistent in wanting to return to her mother’s care. L.S. has expressed that she wants to go to a school in Oshawa, with her younger sister. She will also be able to have daily interactions with the grandparents, if she is in her mother’s care, just as A.S. is having.
[79] Similarly, the mother says that L.S. has clearly stated both to her, to other family members, and to her own lawyer, that she wants to live with her. The mother repeats that L.S. wants to return to a public school in Oshawa, in September of 2023.
[80] Counsel for the OCL did not have affidavit evidence before the Court but provided views and wishes from the counsel table. He too said that the child has been consistent. He did not see any evidence of undue influence or pressure, as the father suggested in his material. He also noted, as has DBCFS, that the child has not made negative statements about her father. They have a good relationship. But the child is still expressing the desire to return to her past life and her “surroundings”.
[81] The father does not believe that this evidence should receive as much weight as DBCFS, the mother and the OCL argue, particularly in the context of the child having a perfectly fine relationship with him and a stable life in his household.
[82] In any event, the father argues that a decision of this magnitude should not be delegated to this child. He says that this child (age 10 (almost 11)) cannot possibly understand all of the risks associated with living with someone with a long history of mental health and addiction issues, and related behaviors.
[83] On the one hand, the child does have strong views. On the other hand, she is 10 (almost 11) years old. I tend to agree with the father, that this evidence should be considered and weighed in the full context of an evidentiary record at trial, particularly in light of my analysis above about continuity and risk, as well as the generous amounts of time that this child spends with her mother and her sister, facilitated by the father’s drives each weekend.
(3) The Importance of the Child’s Indigenous Identity and Her Connection to Her Culture and Community
[84] Ms. Savoy’s affidavits of June 9 and August 16, 2023 state that the mother has taken steps to learn more about her Métis heritage by connecting with the Agency’s Family Finding Program. Ms. Savoy’s affidavit of August 16, 2023 states that L.S. has identified herself as Indigenous as well. DBCFS unequivocally expects the parents will allow the child to learn about her heritage. The Court agrees. And aspects of the evidence from the parents cause the Court some pause for concern about the status quo.
[85] The mother says that L.S. should be allowed to learn about her family origins, but the father does not support this. For example, she alleges that he told the child that she is not Métis. She points out that he objected to the transfer of this file from the Society to DBCFS (although the father did provide context about this (above) and the issue later resolved on consent).
[86] By contrast, the father denies that he has ever taken a position against the mother’s self-identification. He goes on to say that he has had many conversations with L.S. about identity and culture. He points out that he too has Indigenous heritage. He has a connection with an Indigenous community in the United States, and he grew up accessing services and health care as a result of that association. He says he is supportive of L.S. learning about all of her cultural influences.
[87] Despite this conflicting evidence, the record before the Court does not really reveal an issue, like that the father is hindering the mother from participating in cultural activities, events and traditions with the child, (and religion for that matter too[^5]), when L.S. is in her regular care every weekend each week.
[88] Rather, the evidence and arguments about the importance of the child’s identity very much focused on the question where the child will be going to school. And the Court’s decision on this motion will necessarily decide the question of school attendance, at least until there is a trial and if the trial judge’s decision is different from today’s outcome.
[89] According to the mother, the child will receive particular programming relating to her Indigenous heritage if she resumes going to school in Oshawa, something that she does not receive in the care of her father. The mother says that the father did not identify L.S. as an Indigenous child when he enrolled her in school after the removal. By contrast, the mother had done that previously, when L.S. was enrolled in school in Oshawa, before the removal.
[90] The father did not address his failure to do this in his responding affidavit. It is the absence of a response from the father on this important point that is concerning. At this stage of the case, it does undermine his statement that he supports L.S.’ connection to her Métis heritage, and that is problematic in light of the primary consideration in section 10(2) of the Federal Act, and the best interests factor in section 74(3)(b) of the CYFSA.
[91] Still, I am not persuaded that the child can only receive programming if in school in Oshawa as the mother argued. That position is not supported by the evidence right now before me. The mother did not provide any details. Nor did DBCFS. There is a general statement from the mother about programming in Oshawa; yet she did not provide evidence as to what programming is available, or not available, at the child’s school in the father’s catchment area (were the child to be properly identified).
[92] In conclusion, I agree with DBCFS that it is important that both parents support the child’s Indigenous heritage as an FNIM child. At this stage, the evidence is that mother is more supportive of this than the father, and this weighs against the father. Until the trial, the father needs to deal with the mother’s concern about his failure to identify the child at school. To address this, I am prepared to order him, as his counsel suggested during argument, to identify the child as a FNIM child in her school in his catchment area. The father is to ensure that L.S. accesses the programming that is available to her there.
[93] At trial, the issue may not be as narrowly confined to school attendance, but the Court will nevertheless need to hear evidence about what is different in one school or the other. The trial judge may also make other and even contradictory findings about the parents’ support of culture and heritage, when all the evidence is fleshed out.
PART V: ORDER
[94] I make the following Orders:
(a) DBCFS’ motion is dismissed;
(b) The father shall identify L.S. as a FNIM child in her school in his catchment area. The father is to ensure that L.S. accesses any programming that is available to her there;
(c) The parties should continue to have settlement discussions to see if this case can resolve, and if there is a prospect for resolution that may be brought to my attention. However, in light of the positions taken on this motion, the next event in this case will be a Trial Scheduling Conference;
(d) There is already a return date set for November 1, 2023 @ 12 30 PM for an appearance TBST. There is insufficient time allocated in that time slot to complete the Trial Scheduling Conference. Therefore, the November 1, 2023 date may be vacated, but only subject to my comments below;
(e) I am setting a date for a Trial Scheduling Conference for December 12, 2023 @ 10:30 PM – by zoom for one hour. If counsel are not available, please confer and reach out to me through the trial coordinator’s office to arrange to have it rescheduled to a reasonable other date that I am sitting;
(f) The Court requires a TSEF completed in draft. In advance of the Trial Scheduling Conference and when preparing the TSEF in draft, I ask the parties to consider having any evidence in chief from any Society and DBCFS’ employees, the parents and any of their witnesses (other than professional witnesses) go in by way of affidavit. Counsel for the OCL should take steps to get a clinician so that the child’s views and preferences can be presented, unless OCL is of the view that the evidence can come from another source. The parties should also have a discussion in advance of the TSEF as to what evidence will be called about the mother’s treatment and how that will be presented;
(g) For example, based on the affidavit material before the Court on this motion, I see that there has already been file disclosure from the Society and from DBCFS. It is not clear to me the extent to which that disclosure includes any of the mother’s treatment records from Pinewood or the other services and organizations at which she sought treatment. Based on the arguments I heard on this motion, this evidence will likely be required for trial;
(h) Likewise, reference has also been made to counselling the child has received in the father’s care. It is not clear to me whether either party or the OCL is seeking to rely on that evidence at trial; and
(i) If there are disclosure issues and the parties do not have an agreement about them, then I ask them not to vacate November 1, 2023 and the date can be used to either resolve these issues or to set a process for them to be resolved. Otherwise the November 1, 2023 date can be vacated through the trial coordinator’s office.
PART VI: OTHER
[95] Although Ms. Pilch assisted the father at this motion on a limited retainer basis, she indicated that she would be retained if this matter goes to trial. In light of the outcome of this decision, I recommend that the father sort out his trial retainer with Ms. Pilch.
[96] I wish to thank all counsel for their facta and their helpful submissions.
Justice Alex Finlayson
Released: September 5, 2023
2023 ONSC 5011
COURT FILE NO.: FC-21-21-01
DATE: 20230905
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Dnaagdawenmag Binnoojiiyag Child & Family Services
Applicant
- and –
S.S.
Respondent mother
- and –
M.S.
Respondent father
REASONS FOR DECISION
Justice Alex Finlayson
Released: September 5, 2023
[^1]: Carriage of this file was transferred to Dnaagdawenmag Binnoojiiyag Child & Family Services soon after the protection application got underway. [^2]: The father says that he drives over 200 kilometers each weekend. [^3]: For example, the mother is involved respecting both children. K.C.’ interest was limited to the case concerning A.S. M.S. interest is limited to the case concerning L.S. The grandparents were involved in this case as a result of their care of A.S., and not L.S. [^4]: In Reply, Ms. Redfearn said that was done. [^5]: For example, although DBCFS argued that the mother is the parent who takes L.S. to church and therefore addresses their spiritual needs, the mother has L.S. every weekend. It is not clear to me how the father could do this, but in any event this is currently being addressed under the governing arrangement.