Durham Children’s Aid Society v. L.S. and S.U.
OSHAWA COURT FILE NO.: FC-23-26-00
DATE: 20230920
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Durham Children’s Aid Society Applicant
– and –
L.S. Respondent
S.U. Respondent
Llana Pryce
Self-represented
Esther Lee
Children’s Aid Society of Toronto Respondent on motion
Diana Castillo
HEARD: September 12, 2023
DECISION ON MOTION
L. E. FRYER, J.
I. Introduction
[1] This motion was brought by the Applicant, Durham Children’s Aid Society (DCAS) to transfer this proceeding to Children’s Aid Society of Toronto (CAST). DCAS’ motion is supported by the Respondent (Father) (“father”) and opposed by the Respondent (Mother)(“mother”) and by CAST.
[2] The parties have one child: A.U. (date of birth omitted) who is 5 years old.
[3] The parties separated in September 2019 when they were living in Toronto. The mother moved with A.U. to Durham Region shortly thereafter. The mother who lives in Oshawa continues to have primary residence of A.U. The father who still lives in Toronto is to have overnight parenting time each weekend.
[4] The mother has been raising allegations from around the time of separation but more particularly after the father started having overnight parenting time that A.U. has been sexually abused. Initially the allegation was that the child’s paternal aunt (a minor) had abused the child and later that the father had abused the child. CAST and the Toronto Police Service/Child Youth Advocacy Centre have investigated most if not all of these allegations. The child has undergone physical examinations at the hospital. The investigations have been inconclusive.
[5] The parents have been litigating since September 2019 in the Ontario Court of Justice at 311 Jarvis Street in Toronto. The trial of their Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) matter started on November 28, 2022, before Justice Sirivar and her decision was under reserve when the mother and later the child’s therapist reported that the child had made further disclosures of sexual abuse. DCAS commenced the protection application as A.U. ordinarily resides with her mother in Durham Region.
[6] DCAS and CAST have verified protection concerns regarding A.U.’s exposure to adult conflict. The DCAS states as a significant worry that that the mother may be coaching the child to make false allegations; CAST shares this concern.
[7] DCAS argues that the preponderance of convenience favours a transfer of this proceeding to CAST under s. 91(3) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 (“CYFSA”). CAST has had much more involvement with the family. Furthermore, the court at 311 Jarvis is also more familiar with the family having an open CLRA file. DCAS queries whether it will have a long-term role with the family now that the investigations have concluded.
[8] CAST’s position on the motion is that the test under s. 91(3) of the CYFSA has not been met. The primary client for ongoing services is the mother and child who live in Durham. It foresees a role for the protection agency in safety planning and facilitating counselling to meet the existing concerns (exposure to conflict and possible coaching) for both mother and child. This role is best fulfilled by the local DCAS worker, Leonny Dean, who has a better relationship with the mother than the CAST worker, Marleina Macina. CAST workers could still provide evidence in a proceeding in Durham without needing to have carriage of the matter. When the child protection application is concluded, the trial before Justice Sirivar would resume and CAST can provide additional evidence if required.
[9] The father supports DCAS’ position primarily as CAST and the Ontario Court of Justice at 311 Jarvis have the most familiarity with this longstanding matter. He is now pursuing a claim for primary care of the child due to the history of what he asserts are false allegations and he would like the case concluded as soon as possible.
[10] The mother supports CAST’s position for reasons explored further below.
II. Background & Litigation History
[11] The father commenced the CLRA application in the Ontario Court of Justice at 311 Jarvis St in June 2019 after he had difficulties gaining access to A.U. and the mother took the position his parenting time had to be supervised.
[12] On November 20, 2020, Justice Weagant heard a motion by the father for expanded parenting time. Justice Weagant questioned the mother’s motivation as, despite her stated concerns, she had not submitted her intake form to the Office of the Children’s Lawyer. He was concerned that the mother’s “residual bitterness from how she was treated in her relationship with [the father] spills over into her assessment of his ability to exercise access”. Justice Weagant ordered that the father have parenting time each weekend from Saturday to Sunday and again requested that the OCL assist[^1].
[13] The mother did not follow the order for the father’s parenting time and parties attend again on December 4, 2020, before Justice Weagant, who confirmed that the order should continue.
[14] In February 2021 the mother contacted CAST reporting concerns about the possibility that A.U. had been sexually abused by the child’s paternal aunt who was a youth. CAST advised the mother to have the child see a doctor and, if the doctor was concerned, he/she could provide a report. The file was closed at Intake. CAST safety planned with father recommending that paternal aunt not be present during his visits with A.U.
[15] In June 2021, CAST commenced an investigation regarding allegations of neglect by the father and that father was permitting contact between A.U. and her paternal aunt. CAST safety planned with father around these concerns and the file was closed.
[16] In June 2022 CAST opened a file again due to concerns about post-separation conflict. The mother had alleged that the paternal aunt had been present during A.U.’s visits with her father and A.U. was exhibiting sexualized behaviour. A.U. made no disclosures to the CAST worker to suggest sexual harm. CAST did verify emotional harm due to the child being exposed to conflict between her parents. CAST also verified that the father had not followed the previous safety plan and had permitted the aunt to be present.
[17] In November 2022 the mother made a further report to CAST that the father had touched A.U.’s vagina and that paternal aunt had also done so. CAST conducted a joint investigation with Toronto Child and Youth Advocacy Centre. A.U. was interviewed by Ms. Macina and by the police. She made no disclosures about being inappropriately touch by her aunt. She advised that she enjoyed her time with her father and felt safe in his care. The investigation was closed.
[18] The trial before Justice Sirivar started November 28, 2022. CAST worker, Ms. Macina gave evidence. During the trial Justice Sirivar ordered the production of CAST records in relation to the November 2022 investigation and she adjourned the trial so that another CAST worker who was previously unavailable could attend to give evidence.
[19] The mother did not facilitate the father’s parenting time in December 2022 and the trial was re-opened for Justice Sirivar to receive evidence of same.
[20] The trial concluded on April 11, 2023, and Justice Sirivar reserved her decision.
[21] On May 5, 2023, the mother made further allegations against that A.U. had been sexually abused by the father. The father was advised by Ms. Macina that she had already interviewed A.U. and determined that no such disclosures had been made and that his parenting time should continue as ordered.
[22] The mother then brought an ex parte motion. In her e-mail to the court dated May 25, 2023, she stated that A.U. was “in immediate danger, there is a serious risk that the other party may harm my child and/or myself”.
[23] Justice O’Connell reviewed the ex parte motion and directed that it proceed on notice on May 26, 2023. The mother refused to serve her initial materials on the father and attempted to redact part of her affidavit prior to service. Justice O’Connell ordered the original, unredacted materials be served. Justice O’Connell suspended the father’s parenting time pending the return of the motion on June 6, 2023 “out of an abundance of caution”.
[24] On June 6, 2023, the motion resumed before Justice O’Connell. Ms. Macina attended as requested by the court and confirmed that the sexual abuse allegation was not verified but that “the child is at risk of emotional harm from the exposure to her parent’s post-separation conflict and being subject to repeated interviews by child protection workers and the police”. Justice O’Connell consulted with Justice Sirivar and ordered that the trial before Justice Sirivar would be re-opened, father’s parenting time would be re-instated, and that the mother was prohibited from bringing further motions without leave of the trial judge.
[25] On July 6, 2023, DCAS involvement with the family was initiated by the child’s therapist Kayla Gosse who reported that during a session with A.U. the child disclosed that when on access visits with her father, he touches her private parts and points to her vagina. The child also told Ms. Gosse that she had been to the hospital in the past.
[26] On July 7, 2023, before the trial resumed, the father was notified by the Toronto Police Service detective that he was investigating further allegations and that his parenting time was “suspended”. CAST confirmed that it was now also investigating the latest allegations. It was decided that CAST worker, Marleina Macina would be the one to interview the child in connection with this investigation due the child’s familiarity with her and her knowledge of the file.
[27] The trial continued on July 24, 2023. Justice Sirivar expressed concerns about father’s parenting time purportedly being “suspended” by a police officer. Justice Sirivar required CAST counsel to attend in court the same day and, as their position was that father should not have parenting time until the investigation was completed and he had not consented to this, a motion should be brought seeking that relief.
[28] DCAS commenced a protection application on July 28, 2023. The protection concerns identified in its application are that the child is at risk to suffer physical harm (s. 74(2)(b)(i) CYFSA), the child is at risk of being sexually abused (s. 74(2)(d) CYFSA) and that the child is at risk of emotional harm (s. 74(2)(h) CYFSA). DCAS is seeking a six-month supervision order with the child to be placed with the mother. I made a temporary, without prejudice order placing A.U. in the care of her mother subject to terms of supervision the same day. The father currently has parenting time supervised by DCAS. However, DCAS advised that it would be supporting an immediate resumption of the father’s regular, unsupervised parenting time; this is opposed by the mother.
[29] The mother had earlier sought the transfer of the CLRA proceeding to Oshawa on March 24, 2021, and again on February 10, 2022, which motions were dismissed.
[30] The father was initially seeking increased parenting time with A.U. in the CLRA proceeding. He is now seeking sole decision-making responsibility and primary residence of A.U.
III. Analysis
[31] Section 91(2) of the CYFSA states that the hearing of a child protection matter shall take place in the territorial jurisdiction in which the child ordinarily resides.
[32] Under s. 91(3) of the CYFSA a proceeding can be transferred to another territorial jurisdiction when the preponderance of convenience favours this.
[33] The onus is on DCAS to meet the test: Children’s Aid Society of Halton v. C. (K.), 2002 CanLII 61145 (ON CJ), 2002 CarswellOnt 317 (Ont. C.J.) at para. 1.
[34] The preponderance of evidence should be assessed considering the best interests of the child and not necessarily the wishes or convenience of any of the parties: Children’s Aid Society of Halton v. C. (K.) at para. 8 citing Children’s Aid Society of Prescott-Russell v. B.(B.), [1991] O.J. No. 2540 (Ont. Gen. Div.). See also: Children’s Aid Society of Toronto v. T. (A.), 2010 ONCJ 456, [2010] O.J. No. 4423 (Ont. C.J.), North Eastern Ontario Family and Children’s Services v. R.M., 2018 ONCJ 766.
[35] In Children’s Aid Society of Toronto v. T. (A.) Sherr J. referred to the definition of “preponderance” “in Black’s Law Dictionary, 4th ed., (St. Paul, Minn.: West Publishing Co., 1951), as follows: “Greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability.”: at para. 9.
[36] I find that the preponderance of evidence considering A.U.’s best interests favours a transfer of this matter to CAST for the reasons set out below.
[37] It is not disputed that CAST has had a much greater role working with this family to date. Similarly, it is not disputed that the Ontario Court of Justice at 311 Jarvis has had more involvement with this family.
[38] The thrust of CAST’s position on the motion is that despite their historic involvement, DCAS is better placed to retain carriage of the matter as it will be providing ongoing services to the primary clients being the mother and the child.
[39] I asked each agency to outline what ongoing role they would have now that the investigation of the latest disclosures of sexual abuse has been concluded and the concerns not verified. DCAS and CAST each stressed worries that the child may be exposed to coaching by the mother and they anticipated addressing this as well as the concern of the child’s exposure to inter-parental conflict generally by monitoring the mother’s participation in counselling and the child’s involvement in therapy.
[40] It was not anticipated that either agency would be conducting a further investigation into the past sexual abuse allegations. However, if further allegations were made against the father, I understand that CAST would be tasked with investigating as he resides in Toronto.
[41] The mother’s position was that she preferred to have DCAS involved rather than CAST as they would be a fresh face (my words not hers). She stated that CAST did not do its “due diligence” in its earlier investigations. She believes that CAST has deliberately concealed information about its investigation, and she wants full disclosure of the evidence given by the police officer. The mother is seeking additional evidence with respect to the investigation that took place in June 2021.
[42] The mother plans to pursue a motion for information that she believes exists relating to abuse of the father’s child from a different relationship, M.U.[^2] The father currently has had shared parenting of the child with M.U.’s mother since 2015 and according to an earlier endorsement by Justice Weagant, M.U.’s mother wrote a “glowing endorsement” of father.
[43] The mother stated in submissions on the motion before me that she had an additional affidavit from an anonymous deponent regarding yet further sexual abuse disclosures made by the child on June 4, 2023. The mother did initially not alert the CAST worker, Ms. Macina because, according to the mother, Ms. Macina told her she would not review “submissions from non-professionals”.
[44] In terms of the anticipated plans of service outlined by DCAS and CAST, the mother advised the court that she did not see the need for therapy for herself nor did she see any need for A.U. to have therapy beyond the art therapy that she is currently engaged in (the focus of which is on sexual abuse according to the affidavit of Marleina Macina sworn September 6, 2023). The mother presented to the court as very focussed on the need to continue the investigation into the allegations and, to this extent, her goals and objectives may be at odds with those proposed by both child protection agencies. However, if it is determined that further investigation of the past disclosures is warranted, CAST would likely be better positioned to do so than DCAS.
[45] With respect to the concerns of coaching and parental conflict, the mother is not willing to participate in therapy as she clearly does not believe that the problem lies with her. The court could order therapy as a term of supervision, but it may not address the issue if the parent is not even minimally committed. The same is likely true of the mother’s willingness to facilitate tailored therapy for A.U.
[46] It is in A.U.’s best interests for there to be an expeditious resolution of the longstanding case between her parents.
[47] This case can best be managed to an early conclusion if all the proceedings are conducted in the court at 311 Jarvis. The fact that there have been different case management judges involved in the past does not alter my conclusion. The protection application in this court was just started and this is only the second time parties have appeared before me; I have even less familiarity with the case. It will be easier to facilitate the transition from the child protection proceeding back to the trial before Justice Sirivar if all proceedings are held in the same court.
[48] In Catholic Children’s Aid Society of Toronto v. L.H., 2012 ONCJ 299, Spence J. ordered the file transferred to York Region Children’s Aid Society. One factor considered by Spence J. in favour of the transfer was that the Family Court in Newmarket could coordinate the ultimate transition from the children protection proceeding to a proceeding under the Divorce Act with the court hearing the latter having “full knowledge” of the former proceeding. He held at paragraph 40 that this result was consistent with R. 2 of the Family Law Rules as it allowed the substance of the litigation to be dealt with in a more fair and just manner not just for the parents but for the children. I concur with this reasoning and find that it applies to the case before me. In fact, there has already been example of this when Justice O’Connell consulted with Justice Sirivar to determine the best course of action after the mother brought her without notice motion in May of this year.
[49] I am also persuaded that it is in A.U.’s best interests for the matter to be transferred to CAST because of the specific nature of these protection concerns and the CAST worker’s familiarity with the family. Although the CAST workers can, of course, provide evidence in a proceeding, it is not the same as having worked with the family for some time. The concern of coaching in particular is best addressed to the extent possible by one consistent worker or at least one consistent agency. For example, the mother asserted that she was unaware that there was a concern that she was coaching the child. The CAST worker, Ms. Macina was able to address this and confirm that she and the mother had in fact discussed this several times in the past. I also noted that there were inaccuracies in some of Ms. Dean’s affidavit evidence that were corrected or addressed by Ms. Macina that could be directly attributed to lack of familiarity with this longstanding case.
[50] CAST argued that the mother has lost trust in Ms. Macina and would prefer Ms. Dean. Even if it is a worker other than Ms. Macina, that new worker will have the benefit of receiving the case history from the same agency if CAST has carriage.
[51] A further although lesser consideration is that Durham Region and Toronto are relatively close geographically. See Children’s Aid Society of Toronto v. D. (S.), 2017 ONCJ 31 on this point and generally.
[52] The mother indicated that although she has been self-represented for some time now, she was hoping to retain counsel in Durham Region. The father’s counsel, Ms. Lee practices in Toronto. The location of counsel is not a significant factor in the analysis as the test for a transfer is not about the convenience to the parties or their lawyers but about the best interests of the child. In any event, in Durham Region most child protection events prior to trial are conducted virtually and I was advised by Ms. Castillo that the same is true in the Ontario Court of Justice in Toronto.
[53] For all of these reasons, I find that the preponderance of convenience and the best interests of A.U. supports a transfer of this matter to the Children’s Aid Society of Toronto.
ORDER:
This child protection proceeding shall be transferred from Durham Children’s Aid Society to Children’s Aid Society of Toronto. The proceeding shall continue as though commenced by Children’s Aid Society of Toronto and the title of proceedings shall be amended accordingly.
Counsel for Durham Children’s Aid Society, Llana Pryce shall be removed as counsel of record and Diana Castillo shall be appointed as counsel of record for Children’s Aid Society of Toronto.
The court file FC-23-26-00 shall be transferred to the Ontario Court of Justice at 311 Justice, Toronto, Ontario with a return date to be arranged forthwith by Children’s Aid Society of Toronto through the local trial coordinator.
JUSTICE L.E. FRYER
[^1]: The OCL ultimately conducted a s. 112 investigation and issued a report dated March 18, 2021, recommending that the child’s primary residence remain with the mother and that the father have parenting time every weekend from Saturday to Sunday with a proposed expansion of time.
[^2]: Justice Penny Jones ruled that a police report dated January 17, 2020, relating to concerns raised by M.U.’s mother should be produced; it is unclear what occurred in the intervening three years of litigation. According to CAST’s evidence, CAST worker met with paternal aunt on August 8, 2023, in relation to the allegation that she had abused M.U.; paternal aunt reported that she told M.U.’s mother to go to the police about the allegations or that she, paternal aunt would. The police were notified the incident by M.U.’s mother. Paternal aunt was not interviewed by CAST or the police.