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.

OSHAWA COURT FILE NO.: FC-21-24-01 DATE: 20231016

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Durham Children’s Aid Society Clem Nabigon, for the Applicant (“the Society”) Applicant

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J.S. On her own behalf Respondent Mother

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S.M. Andreas Solomos, for the Respondent father Respondent Father

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C.C. Cassandra Baars, for the Respondent C.C. Respondent, Kin Caregiver

HEARD: September 27, 2023

REASONS FOR DECISION

JUSTICE ALEX FINLAYSON

PART I: NATURE OF THIS MOTION

[1] This Status Review proceeding concerns a young girl named A.M., who just turned 3 years old. The child’s mother is J.S.; her father is S.M., and there is an added party to this proceeding named C.C. C.C. is the mother’s cousin.

[2] C.C. cared for A.M. for about half of her life, beginning when A.M. was four months old, due to the parents’ drug use and other protection concerns. C.C. was initially added as a party to the protection application pursuant to rule 7(5) of the Family Law Rules by my Order dated April 26, 2022: see J.S. v. S.M., 2022 ONSC 2535.

[3] On January 25, 2023, the protection application resolved on consent by way of a final, six-month Supervision Order (the “Final Supervision Order”). Pursuant to that Final Supervision Order, the child was placed in the care of the father, and with supervised access to the mother. C.C. was also granted regular access with the child.

[4] One of the several issues now facing this family, that is said to have precipitated this interim relocation motion, is the father’s housing instability. However the father’s housing instability has been known to both the father, and to Society for quite some time, including prior to the resolution of the protection application.

[5] In addition to the fact that on July 30, 2023 the father surreptitiously left Ontario with the child, it has also now been revealed, that after the date of the Final Supervision Order, the father had been living, at least for a time, with a former partner and one of his two children from that former relationship, although he may have still had access to his rental condominium. The father says that his former partner struggles with drug addiction. According to a police report now filed, in March of 2023, the father allegedly assaulted his former partner, while holding A.M. in his arms.

[6] The father has been criminally charged in connection with this alleged assault. There is an outstanding warrant out for his arrest. Despite saying in his sworn affidavit that he would turn himself in, as of the date of argument of this motion, that had still not been done.

[7] Between March and May of 2023, beginning just about two months into the six-month Final Supervision Order, the father advised the Society, and the mother and C.C., that he intended to relocate out of Ontario for financial reasons. This was first brought to the Court’s attention at the first appearance in this Status Review on July 11, 2023, by C.C.; not by the father himself, or the Society. On July 11, 2023, the Court set a process for the relocation issue to be discussed, and if not agreed to, adjudicated in short order.

[8] Just a few days later, the father discharged his former counsel. The father then emptied out the condominium in which he had been previously living, and took the child to New Brunswick. C.C. did not find out about the father’s departure until August 2, 2023, when she tried to pick the child up for one of her court ordered access visits under the Final Supervision Order. C.C. and the Society initially thought that the father had gone to Nova Scotia, as that was the location of the potential move that had been referred to on July 11, 2023.

[9] The father’s departure from Ontario for New Brunswick triggered a series of events leading to this motion. After she became aware of the father’s absence on August 2, 2023, C.C. sought the assistance of the Society and various police forces, to try to secure A.M.’s return to Ontario. C.C. then brought a 14B Motion for the child’s return, and for police enforcement. On August 10, 2023, this Court granted her request. At around the same time, the Society also filed a 14B Motion of its own, in which it asked the Court for leave to bring a contempt motion against the father, and for an order for a different form of police assistance. The Society’s 14B Motion was not brought to the Court’s immediate attention. By the return date of C.C.’s 14B motion on August 22, 2023, the child was back in Ontario. The Society chose not to pursue its requests for relief in its 14B Motion. The Society has a new position. It now supports the father’s request to move to New Brunswick with the child on an interim basis.

[10] On August 22, 2023, this Court scheduled a long motion for September 27, 2023. The Court made further orders pending the hearing of the motion, including a non-removal order and an order for access between A.M. and the father, in Ontario. The Court asked whether the Society would fund a trip for the father to see A.M. in Ontario. The Society agreed. Pending the motion, the father did not avail himself of that access that the Court ordered, and that the Society was prepared to fund. C.C. believes that the father is refusing to return to Ontario, because he is evading an arrest.

[11] Each of the Society, the father and C.C. filed Notices of Motion setting out their varied requests, various affidavits relating to the aforementioned and subsequent 14B Motions, and affidavits relating to the main motion. The father and C.C. filed facta. At the Court’s invitation, the Society and C.C. also filed brief, supplementary written submissions, after argument on September 27, 2023, respecting a discrete issue relating to the father’s CPIC, discussed below. The Court has reviewed this material, and it has considered the parties oral and supplementary written submissions.

[12] For the reasons that follow, the Society’s and the father’s motions are denied. Aspects of C.C.’s motion are granted. In particular, this Court orders that the child is to remain in Ontario, in C.C.’s care and custody on a temporary basis, until the Status Review application is either settled or adjudicated.

[13] In regards to C.C.’s request to appoint the Office of the Children’s Lawyer (the “OCL”) to undertake an investigation and prepare a report pursuant to section 112 of the Courts of Justice Act, the Court cannot order this. Section 112 only applies only in proceedings under the Divorce Act or the Children’s Law Reform Act; this proceeding is under the Child, Youth and Family Services Act, 2017 (the “CYFSA”). C.C.’s request for an Order appointing the OCL to get involved in this case in this fashion is therefore dismissed. [^1]

[14] Finally, this Court is also directing the parties to follow the process that the Court already set on July 11, 2023 for the resolution of this Status Review, and failing agreement, its adjudication. That ought to have happened in the first place, but for the father’s surreptitious departure. Below, I am setting a date for that to occur, with corresponding directions.

[15] This Court is not inviting any further written submissions, or scheduling any further appearances on this motion, as suggested by counsel for the Society during submissions, to allow the parties to have discussions about access. Those discussions could have, but did not occur at any time during the one-month period between August 22, 2023 and September 27, 2023, when this motion was scheduled and then eventually argued. Had the Society or the father filed the evidence, that the Court twice indicated it required for this motion, [^2] the Court might have been in a position to make an access order. The Court also notes, again, that it already intervened once respecting the father’s access on August 22, 2023, and the father did not follow through. The parties are free to have these discussions now, and address any disagreements that may arise, at the settlement conference that I shall set.

PART II: PRIOR PROCEEDINGS

A. The Protection Application dated September 3, 2021

[16] The initial protection application began on September 3, 2021. The Society had already been involved with this family for months before then.

[17] The protection concerns that the Society asserted in the protection application are summarized in this Court’s detailed decision of April 26, 2022. That decision arose out of a different temporary motion in the protection application, to address the child’s temporary placement, access issues as they then presented, and C.C.’s party status and her access. The Court heard that motion on March 15, 2022 and April 20, 2022, with a further post-motion attendance on April 29, 2022 to address a new development at the time.

[18] As explained in this Court’s April 26, 2022 decision, both parents were abusing drugs at the time of A.M.’s birth. They continued to do so subsequently. Their drug use included marijuana, cocaine, and opiates. A.M. had tested positive for cocaine at birth. In addition, there were concerns about conflict in the parents’ relationship. Housing instability would later become an issue in the protection application, mid-stream.

[19] The Society initially developed an out of court safety plan with the parents before bringing this matter before the Court. That plan involved having other family members care for the child, when the parents were going to use drugs. The Society’s safety plan quickly proved to be unworkable. In or around January of 2021, when A.M. was just four months old, the Society moved her from the parents’ care and into the shared care of her maternal grandmother, and C.C. The child then went into C.C.’s principal care by April of 2021. This out of court arrangement that the Society put in place was a significant consideration that led to the Court granting C.C. party status in its April 26, 2022 decision. C.C. and the child began to develop a bond, starting when the child was very young.

[20] The Society launched this proceeding in early September of 2021, because the Society said the mother no longer agreed to A.M. remaining in C.C.’s care. A.M. was just about 1 years old at the time. At the first appearance in the protection application on September 14, 2021, I made a temporary without prejudice order placing the child with C.C., which merely confirmed what had already been put into place.

[21] In the months that followed, the parents worked with the Society towards addressing their addiction and the other protection issues. The Society devised a plan for the child’s graduated return to the parents, which the Court ultimately approved, although not without hiccups.

[22] The graduated return began on consent earlier in 2023, but its full implementation was not initially agreed to, or approved by the Court. The ultimate return ended up being the subject of the March 15, 2022 motion. The final phase of the return ended up resolving on consent, too, and the Court approved it at that time. The Court provided brief written reasons for ordering the return on March 15, 2022; it elaborated about those reasons at ¶ 40 of the April 26, 2022 decision, subsequently released to address the remaining issues on that motion.

[23] Following the argument on March 15, 2022, but before the Court released that decision respecting the remaining issues, the Court was advised that the mother relapsed. There was more relationship instability between the parents. But because the Society reported that the father acted in a protective fashion and there was a plan for the mother to attend a 35-day rehabilitation program, the Society did not ask the Court to significantly alter the return order that it had just made. The Court permitted the child to continue to remain in the joint care of the parents. Nevertheless, the Court specifically set out in its April 26, 2022 decision, that the Society’s ongoing involvement was obviously needed to monitor the parents and the child. In adding C.C. as a party, the Court found that she was an important part of that safety net.

[24] The Court made certain findings about C.C.’s relationship with the child, when it grated her party status. In particular, at ¶ 115 of the April 26, 2022 decision, I found:

The parents were unable to care for this child for months. A.M.’s reality is that she has been cared for by C.C. for most of her life, starting when she was just four months old. She has developed bonds to C.C. and to those in C.C.’s household. C.C. needs to remain a presence in case the reunification fails.

[25] The Court also made an access order in C.C.’s favour, on a four-week rotation. C.C. had access to A.M. on a during the first three weeks, from Wednesdays from 10:00 AM until Thursdays at 6:00 PM. During the fourth week, C.C. had access from Fridays at 10:00 AM until Monday at 10:00 AM. The Society was also given the discretion to increase the amount of time that A.M. was in C.C.’s care depending on the progress of the reunification plan, but not to the point of changing the placement. Were that to become necessary because of further developments, the Court directed the parties to return to Court for judicial oversight and approval.

[26] Three days after the release of the April 26, 2022 decision, the Court was advised that the father’s landlord asked him to leave his apartment due to the non-payment of rent. At that early point though, confusing information was presented about this. For example, while the father said that he intended to look for a new apartment, the Court was also told that the father was current respecting his rent, and that the non-payment occurred in the past. The Court had discussions with the parties about this. The Society also offered to assist the father to avoid an eviction, given the statement that he was actually current with his rent. On April 29, 2022 I endorsed that the father should take steps to avoid destabilizing the child’s placement through the loss of housing. I also ordered the father to apply for a day care subsidy and to place the child on wait lists for day care, as part of some longer-term planning.

[27] The reintegration plan ordered on March 15, 2022 for a joint placement with the parents did not last. During the summer of 2022, the parents separated. There were ongoing issues with the mother’s substance use, whereas the father had remained clean of illicit substances. On September 2, 2022, the Society brought a motion, now to vary the Court’s Order of March 15, 2022, and to place the child still in the parents’ joint care, but with the father primarily. This was already happening in reality. The Court was told at that point, that the child was doing well in the father’s care.

B. The Statement of Agreed Facts and the Six-Month Supervision Order dated January 25, 2023

[28] The protection application resolved on consent on January 25, 2023, with the parents and the Society signing a Statement of Agreed Facts. Although the findings referred to above were made on a temporary motion, on untested affidavit evidence, the parties then agreed with most of the Court’s findings in their Statement of Agreed Facts.

[29] In addition, the parties agreed that the father had made much improvement respecting his past drug use. The father completed a 35-day residential treatment program in the spring of 2021, and followed through with after care. He attended narcotics anonymous. He also completed a parenting program. By contrast, the mother had not been able to stop using drugs; this continues to be a serious problem to this day.

[30] In regards to the father’s housing instability, the Statement of Agreed Facts states that in early January of 2023, the father was still living in the aforementioned condominium, but “on a monthly basis”. The representation made to the Court in this document was now that the landlord was selling the condominium, and that is why the father had to leave. Nevertheless, the father had told the Society, and the Court through this Statement of Agreed Facts, that he was able to stay there until he could find another place to live.

[31] The agreed upon facts in the Statement of Agreed Facts indicate that the father was looking for housing in the Durham area. He was also pursing day care in Durham, to implement this aspect of the Court’s interim Order of April 26, 2022. The Court specifically observes, that when the parties settled the protection application, housing, day care, the access orders, and other services to be provided under the Supervision Order all revolved around the father and the child living in Ontario.

[32] On January 25, 2023, the Court made the statutory findings and found the child to be in need of protection pursuant to section 74(2)(n) of the CYFSA. The Court made the aforementioned six-month Supervision Order, but now with a placement with the father, no longer a “joint” placement. The Court set July 11, 2023 for the first appearance on this Status Review.

[33] Three of the terms of supervision ordered, were that the parents were to notify the Society, and each other, at least 7 days before any change of address, telephone number or email address, they were to meet with the Society worker at mutually agreed upon times, and they were to work cooperatively with the Society. Additional terms and conditions pertaining to the mother and father individually, were also put in place. The father has breached these three terms by leaving Ontario in the manner that he did.

[34] A number of the terms and conditions in the Final Supervision Order that pertain to the mother were in respect of her ongoing treatment and rehabilitation. The Order also provided for supervised access to the mother. While the mother has not been consistent in having it, the Court still notes, at least based on the record that is right now before me, that any access between the mother and A.M. will be next to impossible, if this move is allowed.

[35] C.C.’s temporary access previously ordered was incorporated into the Final Supervision Order. Additionally, the Court ordered that the child would be with C.C. for part of Easter and Thanksgiving in 2023. The motion material now before the Court is equally devoid of any realistic plan, details, or logistics, that would enable C.C. and A.M. to continue to see each other, if the move is allowed.

C. The Status Review Application dated July 15, 2023

[36] Although on this motion the Society took the position that there are no ongoing protection concerns with the father, this Court notes that in the Status Review application dated July 15, 2023, the Society pleaded that the child continues to be in need of protection. The Society has not amended its Status Review Application to seek a termination of the orders; rather, consequent on a finding that the child continues to be in need of protection, the Society seeks an order that the child be placed in the father’s custody pursuant to section 102 of the CYFSA.

[37] The Society also asks for Orders that the child have supervised access with her mother at least once per month in the discretion of the father. For reasons that are unclear to the Court, in its pleading the Society would have the frequency, although not necessarily the quantity, of C.C.’s access increase, but also become more restricted. For example, while the Society claims that C.C.’s access should be “at least three times per week”, it would also have that access occur in the discretion of the father. The Society’s position respecting C.C.’s access in its Notice of Motion for this motion, below, is more restrictive. Based on the record before me at this stage of the case, what the Society is asking the Court to Order would largely write C.C. out of the equation.

[38] When the Society commenced this Status Review, it also filed an affidavit of child protection worker Cathy Bugden dated July 15, 2023. Although the father had already told the Society of his intention to move, albeit not with a fleshed out and detailed plan (which still does not exist), neither the Status Review application nor Ms. Bugden’s affidavit, nor the Society’s Plan of Care for that matter (also dated June 15, 2023), make any mention of a potential relocation out of the province. C.C. has made a point during this motion to highlight this omission. [^3]

D. The First Appearance in the Status Review on July 11, 2023

[39] The father was represented by his former counsel, Ms. Scovino, at the first appearance on this Status Review. [^4] When C.C. raised the issue about the potential move, Ms. Scovino did not have instructions. The Endorsement dated July 11, 2023, states that the Court was advised that the father “may be pursuing a plan for a relocation to Nova Scotia.” The Endorsement states that the Court was told that C.C. anticipated opposing the move, and that the mother may also be opposing it. There was much to sort out.

[40] In the Endorsement, I also noted a different concern of C.C.’s, that she reported to the Court. C.C. had been made aware that the father now had a 7 year-old child from a former relationship living with him. The Court was told that there had been some conflict, and perhaps some drug use by that other parent. The Court was told that that issue was apparently going to be dealt with under the Children’s Law Reform Act, although the Society may have had some involvement in the matter, too. This is the precursor information that the Court was provided, before the later revelation to come, about the assault, and the warrant. Notably, that assault had already allegedly occurred, and the warrant was already outstanding. But similarly to the move issue, incomplete information was communicated to the Court, as C.C. did not have all the details. C.C. asked the Court to order the father to provide an updated CPIC that day. As with the move, the father’s former counsel did not have instructions about that either.

[41] Under the circumstances (and in consultation with the parties as to scheduling), I endorsed that the next date would be October 6, 2023, for a Settlement Conference, to discuss the plans and to see if the matter could resolve. Given the paucity of information then before the Court about this proposed relocation, I specifically indicated to the parties in the Endorsement that the “details of any relocation plan if it is pursued are to be put before the Court.” This is the first reminder to the parties about the kind of information (or evidence) that a court needs in a case of this nature. I also indicated to the parties in that Endorsement, that if the case did not settle, then the Court may very well schedule a trial scheduling conference, to enable the Status Review to proceed to a prompt hearing.

[42] Having heard C.C.’s allegations about the other child, the other partner, potential drug use and a possible CLRA proceeding about which the Society may have had knowledge, I directed the Society to provide some file disclosure to C.C., to the extent it was able to do so, to answer C.C.’s questions. I endorsed that the father’s former counsel wanted to get instructions from the father about his providing an updated CPIC, so I did not order that disclosure on that date. There was also a discussion about the father obtaining and producing any police occurrence reports pertaining to whatever had happened.

[43] With the benefit of hindsight, the Court finds it noteworthy, that the father had very relevant information in his possession at the time of the July 11, 2023 hearing. The Court also finds it noteworthy that the location of the proposed move was not even clearly articulated on July 11, 2023; reference to Nova Scotia, and not New Brunswick, had been made. This confusion as to the location of the proposed move continued after the father left Ontario, to the point that in early August, the Society was making inquiries of a child welfare agency and the police in Nova Scotia, and not New Brunswick where the father and A.M. actually were, to try to locate the father and the child.

[44] Very clearly, the father knew where he was going, and he already had a plan to leave in place. The father also knew the details about what had transpired with his former partner. On July 21, 2023, a mere ten days later (and twelve days before C.C. discovered that the father left Ontario with the child), the father signed a Notice of Change in Representation discharging his former counsel. He then left Ontario with A.M. for New Brunswick, on July 30, 2023.

E. The 14B Motions Respecting the Child’s Return to Ontario

[45] On August 9, 2023, C.C. filed a 14B motion advising the Court that the father had left his condominium with A.M., and that his and A.M.’s whereabouts were unknown to her. C.C. advised that she was concerned that the father had left for Nova Scotia (still thinking he was in Nova Scotia). C.C. reported that she had tried to get assistance from the Society, but that the Society was also unaware of the father’s or the child’s whereabouts.

[46] C.C. was critical of the Society. She said that the Society had otherwise not taken the requisite steps to bring this matter before the Court.

[47] On August 10, 2023, I ordered the child to be placed in the care and custody of C.C. on a temporary without prejudice basis, and I made an order for police enforcement. I set a return date for August 22, 2023.

[48] In the mean time, the Society had filed a 14B motion of its own on August 9, 2023 asking for a date for a contempt motion and a different form of police assistance, but that motion had not been brought to my attention when I ruled on C.C.’s motion. In any event, by the return date of August 22, 2023, the child was back in Ontario. The Society advised that it no longer intended to proceed with that motion. As indicated earlier, the Society is now supporting the father’s request to move. The Court also notes that the Society’s 14B Motion asked for police assistance to locate the child, but not to apprehend and return her.

F. The August 22, 2023 Attendance

[49] On August 22, 2023, I endorsed that although the Court had set out a process in its Endorsement of July 11, 2023 to address a potential relocation, events had intervened. In view of the Court’s temporary without prejudice order of August 10, 2023, there would now need to be this motion. When scheduling this motion to be argued, I otherwise made an order that A.M. would continue to remain in Ontario with C.C., and that she not be removed from Ontario.

[50] In the Endorsement, I specifically reminded the parties, now for the second time, about the evidence needed. I did so in a more detailed fashion. In particular, I endorsed that it would be important for the Court to receive evidence containing sufficient details (ie. logistics) of how travel would occur if the move was allowed or not allowed, to deal with access. I also specifically indicated that the financial resources of the parties would be a relevant consideration. Despite that, none of the evidence about the logistics, and insufficient evidence about finances, has been put before me.

[51] As set out earlier, the Court also intervened respecting the father’s access on August 22, 2023. The Court asked, and the Society gave an undertaking, to fund a trip for the father to come to Ontario to see A.M., for up to one week, pending the motion, on various terms and conditions. One of those conditions, requested by C.C., was that before the trip, the father was to provide his updated police check. Although on July 11, 2023 the father’s former counsel wanted some time to get instructions about this disclosure, by August 22, 2023, over one month had passed. I made the disclosure Order. I otherwise made a scheduling order for the exchange of material prior to the argument of this motion.

[52] The father neither availed himself of the trip that the Court ordered and which the Society was prepared to fund, nor did he provide the updated police check. And according to C.C.’s affidavit sworn September 13, 2023, although she gave the father certain contact information to enable him to speak to the child over Facetime in the weeks that followed, the father has not even contacted A.M. virtually since the child’s return to Ontario on August 12, 2023. The Society conceded during argument of this motion on September 27, 2023 that it did not take any steps to talk to the parties about logistics, between August 22, 2023 and September 27, 2023, either.

G. The 14B Motions Dated September 13, 2023

[53] On September 14, 2023, C.C. filed a new 14B Motion, dated September 13, 2023, asking that this relocation motion be adjourned, as the father had not provided his CPIC, now ordered. The father filed a 14B Motion dated September 13, 2023 in response, seeking the dismissal of C.C.’s 14B Motion. The Court did not rule on these 14B Motions, leaving them to be dealt with at the return of the motion on September 27, 2023. In her Notice of Cross-Motion dated September 20, 2023, C.C. then asked for the dismissal of the father’s motion due to his failure to provide the CPIC, among other reasons.

[54] While the father was, and still is under an obligation to provide the CPIC, the Court did not find his failure to have done so warranted an adjournment. In saying this, the Court in no way relieves the father of his continuing obligation to comply with the disclosure ordered. But C.C.’s ability to defend against this motion was not particularly prejudiced, given the numerous other gaps in the Society’s and the father’s evidence. Moreover, there were other, informational equivalents in the affidavit materials before the Court about the alleged incident of violence between the father and the other mother, and the outstanding warrant, notwithstanding the failure to provide the CPIC. And at the outset of the argument on September 27, 2023, C.C. did not strenuously pursue an adjournment.

[55] The Court denied C.C.’s request for an adjournment. The Court intends to deal with this motion on its merits, and it does so in this ruling.

H. The Parties Varied Requests, and the Calibre of the Evidence Before the Court

[56] The Society is the first moving party on this relocation motion. In its Notice of Motion dated August 30, 2023, the Society seeks “a without prejudice Order” placing the child in the temporary care and custody of the father, subject to the supervision of the Society, with the assistance of the local child welfare agency in New Brunswick, “as per the final order of the Honourable Justice Finlayson, dated January 25, 2023”. [^5]

[57] The Society also seeks “without prejudice” orders that the mother may have access, “if she requests it” at a minimum, once per week for one hour “whenever the child is in Ontario”, that C.C. may have video or telephone access, “if requested”, twice per week or a maximum of 30 minutes, and that C.C. may otherwise have in person access as agreed to between the father and C.C., or failing agreement, as directed by the Society “in consultation with the OCL [^6] and the respondents”. As set out earlier, this position about access represents a departure from what the Society claimed in its Status Review application, and it is a significant departure from C.C.’s access in the Final Supervision Order.

[58] The Society proposes that the Settlement Conference that I previously directed was to occur on October 6, 2023, will now occur sometime in December, once the New Brunswick child welfare agency’s assessment is completed. [^7] As already indicated earlier, during his oral submissions, counsel for the Society asked that the Court permit additional written submissions about access, or that I schedule another date to deal with that.

[59] The father and C.C. also filed Notices of Motion of their own, with the father also asking for the move and for access orders, and with C.C. opposing the move. The mother did not file any evidence on this motion. Both the father and C.C. filed facta. [^8]

[60] Despite this Court’s prior directions as to the evidence required, the affidavits before the Court contained evidentiary gaps. For example, the Society’s evidence consists of the affidavits that it filed in support of or in opposition to the 14B motions that were filed beginning on August 9, 2023. That evidence mostly details what was done, or not done, to locate the father and the child. Otherwise, the Society’s main affidavit on this motion consists of the two-page affidavit of child protection worker Kusum Nijhawan, sworn August 30, 2023, and three exhibits.

[61] Rather than filing a fulsome affidavit on this motion, the Society in its Notice of Motion referred to 10 of its affidavits that had been previously filed, 7 of which were filed in the protection application, and 1 of which was filed earlier in the Status Review before the relocation issue was put before the Court. The other two affidavits related to the 14Bs. None of the earlier affidavits from the protection application were referred to specifically in argument by the Society, and none address he move specifically (because they pre-date it). Ms. Nijhawan then filed a further affidavit of September 20, 2023 relating to another 14B, and a reply affidavit sworn September 26, 2023.

[62] The Society’s evidence was augmented by the father’s evidence, but it too contained gaps and deficiencies.

[63] In regards to the elusive CPIC, although the Court had already denied the adjournment at the outset of argument, this issue about the non-production of the CPIC continued to be raised by C.C. in argument. The Court was then advised by counsel for the father during argument, that the father would receive it by September 29, 2023. The Court indicated it was going to reserve, but with the consent of all parties, I ordered the father to provide the CPIC to the Society and to C.C. upon receipt in the next two days. I advised the parties that I would consider an additional, brief, one page of submissions from each of them, about how the Court should consider the CPIC, once produced. The Society undertook to gather up the CPIC and the submissions, and to email them to me directly, by October 4, 2023.

[64] The Society did not provide the Court with the CPIC or any of the submissions by October 4, 2023. In the case of the CPIC, that is because the father had not, as of October 4, 2023, or October 6, 2023, or October 11, 2023 (and still today according to my understanding) provided it. No one provided any written submissions by October 4. C.C.’s counsel then provided her submissions directly to the Court on October 6, 2023. On October 11, 2023, the Court asked the judicial assistant to email Mr. Nabigon to find out what was happening with this. Mr. Nabigon responded to the judicial assistant and said he misplaced my email. He then delivered submissions from the Society dated October 11, 2023, prepared in response to the judicial assistant’s follow up email. The father did not provide any submissions at all.

[65] Neither the Society’s nor C.C.’s submissions address the CPIC, because it was not provided. In that sense, these supplementary submissions were unnecessary. The Society did helpfully explain some differences between the criminal documentation already provided and what would additionally be contained in the CPIC, when it is provided.

PART III: ISSUES AND ANALYSIS

A. Applicable Legal Principles

[66] Both the Society and the father are asking the Court to change the Final Supervision Order dated January 25, 2023, on an interim basis pending the final determination of the Status Review, to permit the father to relocate with the child out of the jurisdiction. In opposing the move and seeking an order that the child be placed in her care, C.C. is also necessarily asking this Court to change the Final Supervision Order on an interim basis in a different way. Consequently, there are two overarching sets of legal principles that are engaged on this motion.

[67] First, in regards to whether the Final Supervision Order should be changed on an interim basis pending a settlement or the final determination of this Status Review, section 113(8) of the CYFSA applies. Section 113(8) 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.

[68] Recently in DBCFS v. S.S. and M.S., 2023 ONSC 5011, this Court considered the interpretation of section 113(8). This Court cited the decision of Sager J. in Catholic Children’s Aid Society of Toronto v. W.P.P., 2020 ONCJ 388, in which Sager J. considered the two lines of authorities about the threshold that applies on motions of this kind, one line being more stringent than the other. I need not repeat that discussion again here. I adopt what I (and Sager J.) previously wrote about this.

[69] This Court has previously indicated that it would follow the flexible approach that Sager J. adopted; I do so again here. I find the threshold test to be whether there has been sufficient change that affects the child’s best interests requiring a change to her placement, in light of the circumstances of the case, rather than a more stringent material change test. In so doing, I also consider the child’s best interests using the factors in section 74(3), as section 113(8) directs.

[70] Second, a number of related, but nevertheless distinct issues are embedded within the latter question, about whether to permit the move on an interim basis. Recently in Linck Child, Youth and Family Supports v. P.A., 2023 ONCJ 288, Vickerd J. set out the legal principles that apply respecting interim relocations in child protection, [^9] although she did so within a protection application, and not on a Status Review (where the additional requirements of section 113(8) apply). [^10]

[71] In Linck Child, Youth and Family Supports v. P.A., Vickerd J. began by noting that there are no statutory provisions in the CYFSA addressing the relocation of a child’s primary residence. However, child protection courts have applied the relocation jurisprudence developed under the CLRA in child protection proceedings. There are nevertheless important distinctions. For example, the best interests test in section 74(3) of the CYFSA is different from that in section 24 of the CLRA. Under the CYFSA, there is a greater emphasis placed on risk, among other factors.

[72] Citing or quoting from Children’s Aid Society of Toronto v. GM, Plumley v. Plumley and other decisions, Vickerd J. listed numerous considerations to be taken into account: see ¶ 37 to 50 of Linck Child, Youth and Family Supports v. P.A. Those which I find to be particularly apt in this case are:

(a) The Court should be cautious in making relocation orders where there are material facts in dispute that require testing at trial or when the proposed move involves a long distance. The temporary decision will often have a strong influence on the final outcome. Courts do not like to create disruptions in the lives of children by making an order that may result in further disruption later, if the order has to be reversed. A move involving a long distance will also severely compromise a parent’s opportunity to prove that they can safely parent the child;

(b) The Court will consider whether there compelling circumstances which might dictate that an interim move should be allowed, whether there is a strong possibility that the moving party’s position will prevail at trial;

(c) The Court may also apply a stricter test during the original protection proceeding than in a Status Review since there has not yet been a finding that the child is in need of protection, the statutory time lines are less likely to have been exceeded, and the parents are just beginning to address the risk concerns;

(d) On the other hand, if the case is at the Status Review stage, as this case before me is, then the principles that apply under section 113(8) still apply;

(e) The Court will consider whether the child will be moving to reside with a parent versus an extended family member. The former will generally be viewed more favourably than the latter;

(f) The Court will consider the nature of the child’s relationship with the caregiver and the caregiver’s ability to meet the needs of the child;

(g) The Court will also consider the nature of the child’s relationships with the left behind parent and the extended family members. This includes a consideration of the caregiver’s willingness to facilitate any order for access to the left-behind parent and extended family members;

(h) The Court will consider the impact of the move on the left-behind parent, including on that parent’s ability to present a positive plan for the child;

(i) The Court will consider child’s age, stage of development and maturity, and views and preferences; and

(j) The Court will consider the ability and willingness of a child protection agency in the new jurisdiction to monitor any supervision order.

[73] Additionally, in Children’s Aid Society of Brant v. A.C., 2022 ONCJ 63, the Court applied the new relocation sections set out in section 39.3 and 39.4 of the CLRA.

[74] The Court observes that some of above considerations differentiate between a “left behind parent” and extended family members. Here, the Court’s principal focus is on the child, but in the context of the father seeking the move, and C.C., as the principal opponent of the move. While C.C. is not necessarily a “left behind parent”, she is an extended family member. But she is more than just an extended family member who has seen the child from time to time through the child’s parents. She is a very important person in A.M.’s life. She is a former, and now again (as a result of this Court’s recent Orders), a current kin caregiver. The Court foreshadowed the need to keep C.C. involved for A.M.’s sake as early as its April 26, 2022 decision. Until the father’s surreptitious departure from Ontario, she was also an access holder under this Court’s temporary Order of April 26, 2022, and again in the Final Supervision Order of January 25, 2023.

[75] Therefore, I intend to consider the impact of the proposed move not only on the child’s important relationships with her parents, but also on C.C.

B. Who, if Anyone, Bears the Onus on this Motion?

[76] If the arguments on this motion respecting the question of onus were somewhat complicated to begin with, they were rendered more so by the father’s unilateral move.

[77] Although it was the moving party, the Society did not make submissions on this point. The father’s counsel did not squarely address the question of onus, although he reiterated that the placement lies with the father. At the same time, counsel fairly conceded that the move upsets the access order. C.C.’s counsel did an excellent job in making submissions on this point. She filed a very detailed and helpful factum, and presented to the Court arguments and alternative arguments as to where the onus lies. Although there may be no clear answer in the case law, Ms. Baars put a great deal of thought and effort into this question of onus.

[78] For example, on the one hand, the case law, decided prior to the recent CLRA relocation amendments, suggests that the party seeking the move on an interim basis bears an onus in accordance with the Plumley test. If that is the correct approach, the onus would fall on the Society or the father, as both filed Notices of Motion in support of the move.

[79] However, if section 39.4 of the CLRA applies by analogy in child protection cases, as the Court in Children’s Aid Society of Brant v. A.C. found, and if the division of time in the Final Supervision Order triggers section 39.4(6), then that might suggest, that C.C. would have the burden of proving that the move would not be in the child’s best interests. If the division of time in the Final Supervision Order triggers section 39.4(7), both C.C. and the father (and possibly the Society as a moving party on the motion) would have the burden. [^11] Relatedly, issues have been raised by C.C. (and by the Society for that matter) about the inadequacy of the notice the father provided, to the extent that the CLRA’s notice provisions apply.

[80] On the other hand, if I understood correctly the father’s position, his proposed move would keep the child in his care, consistent with the Final Supervision Order as his counsel argued, suggesting that 113(8) favours him. But the Final Supervision Order was made in Ontario, for a placement with the father in Ontario, and for supervision by this Society. The father’s proposed move represents a significant departure from the status quo, not only because, as counsel conceded, it impacts A.M.’s contact with the other important caregiver in her life, C.C. (and the child’s mother, if and when the mother exercises supervised access), but also because it would change the jurisdiction in which the child will reside. It changes, or adds another child welfare agency involved in the supervision. It also reveals a troubling act of self-help on the part of the father.

[81] In this regard, this Court echoes the very apt comments of Jain J. at ¶ 25-28 of Simcoe Muskoka Child, Youth and Family Services v. H.D. and J.D., 2022 ONSC 5953. The portions of those paragraphs that I find particularly applicable in this care are:

[25] The Supervision Order was not made in contemplation of a move across the country. The nature and extent of the variation sought by the Respondents is, in my view, extreme. The Respondents minimized the significance of the requested variation and relocation. The Respondents are not asking to simply move cities, they are asking to change the provinces. The proposed relocation would not only limit the Mother’s ability to abide by the terms of supervision; it would make it impossible for the Society to monitor compliance - which, judging by the Respondents’ highly critical views of the Society, may be one of the intended consequences of the relocation.

[26] The Respondents made submissions that “nothing in the Supervision Order says they must reside in Ontario”, inferring that they did nothing wrong when the Mother and children did not return to Ontario after the summer visit….. They said that despite being subject to a Supervision Order, they can reside wherever they wish in Canada in accordance with s. 6(2) of the Canadian Charter of Rights and Freedoms (“the Charter”) which provides:

[27] This entire position is frankly just wrong. The Respondents are the subjects of a Supervision Order made by the Ontario Superior Court of Justice, Family Court. The jurisdiction is Ontario. In child protection cases, whenever the Society or the Respondent/s contemplate making a significant change to an Order, they must come back to court, see DCAS v. P.A., 2022 ONSC 606 ………. The Father moved to Alberta unilaterally. In my view, the Respondents’ attitude to the summer visit was one of self-help. Given all the circumstances, their plan for the Mother and children to relocate prior to the trial cannot be supported by the court. In these circumstances, the parents cannot “reside wherever they wish.”

[28] The Respondents repeatedly said that if they were permitted to relocate, they will continue to cooperate with the Society and follow the Supervision Order. The court was, to put it bluntly, shocked by this submission. It was shocking because this submission was made in the face of the Mother’s very recent use of self-help by remaining in Alberta with the children in direct non-compliance with the Supervision Order and the endorsement of Krause J., dated June 8 2022……

[82] On yet another hand, C.C. argued that the father now bore the onus under section 113(8) of the CYFSA, because this Court’s temporary without prejudice orders of August 10 and 22, 2023 already varied the Final Supervision Order, and A.M. is now in C.C.’s care. In other words, she argued that section 113(8) favours the continued placement with her unless the test that Sager J. articulated is met, and the father bears the onus to meet it.

[83] However, the Court observes that those orders were made on a without prejudice basis, to address an urgent situation responsive to the father’s unilateral conduct. Those orders were made pending this motion; they were not intended to alter the Final Supervision Order on a more permanent, or even on a temporary basis pending the determination of the Status Review application, at least until there could be full argument on this motion.

[84] And in contrast to all this, if the move is denied, then the Court observes that only option is for the child to remain in the care of C.C. That is because the evidence before me right now, is that the father intends to remain in New Brunswick, where he now is living with the two children from his previous relationship. The mother is not a suitable caregiver for A.M. given the ongoing protection concerns that pertain to her drug use. So if the Court orders the child to remain in Ontario with C.C., that also represents a departure from the status quo, in that the child will be in the primary care of a different caregiver from the father, albeit a caregiver to whom she is very bonded. As such, the Court would have to find under section 113(8), that there has been a sufficient change in circumstances, and that the child’s best interests require a change to A.M.’s placement, to be with C.C.

C. Analysis and the Court’s Reasons Explaining Why the Request for an Interim Move is Denied

[85] In the end, it is not necessary for me to resolve these interesting and perhaps conflicting questions about onus. It doesn’t matter in this case. Even were I to apply the most flexible approach in favour of the father, and place an onus entirely on C.C. to resist the move and to change A.M.’s placement, it remains my view that the only available option, that I find to be in this child’s best interests at this time, is to deny the move and to maintain the temporary without prejudice placement with C.C., now on a temporary basis.

[86] In other words, irrespective of where the onuses, if any, lay, there is no question that there have been not only sufficient, but significant changes in circumstances.

[87] Now this Court appreciates, having regard to the aforementioned factors set out in Linck, that this case is at the status review stage. As Vickerd J. and Sherr J. wrote, a less stringent approach might apply compared to if this case was at the protection application stage. The Court also appreciates that the proposed move is to be with a parent, as opposed to another family member. But while these factors might militate in favour of a move, I still am unable to find an interim move to New Brunswick to be appropriate or in this child’s best interests, on this record. Where A.M. will reside in the longer term, whether in New Brunswick with her father, or in Ontario with C.C., needs to be dealt with by way of a trial on a full record. I draw this conclusion for the following nine reasons.

(1) The Circumstances Surrounding the Father’s Surreptitious Departure from Ontario

[88] The circumstances surrounding the father’s departure from Ontario, and the extent to which he concealed his actions, are concerning. Regardless of the applicability of the CLRA notice requirements in child protection, and whether, if they applied, he provided adequate notice in accordance with them, this Court finds that the father’s departure from Ontario was surreptitious and improper. For the same reasons that Jain J. expressed in the case before her, above, the father was not authorized to leave Ontario with this child, under the terms of this Court’s Final Supervision Order. His departure was also undertaken in the face of the process that the Court had set out for the proper discussion and if necessary, adjudication, of what, on July 11, 2023, was only presented to the Court as a potential request to move.

[89] The father’s behaviour and certain of his sworn statements cause the Court to question his credibility, his willingness and ability to comply with Court orders, and his willingness and ability to be amenable to the supervision of a child welfare agency, whether in Ontario or in New Brunswick. It causes the Court to question his bona fides, when he says he supports the child’s relationship with C.C. And even if he supports the relationship, the Court nevertheless has serious questions about his ability to actually facilitate a relationship between C.C. and A.M. I make these findings based on the following evidence.

[90] According to C.C., on August 2, 2023, she went to pick up A.M. for their regular weekly access. The father was not there. C.C. waited and then sent a text message to the father, but she did not get a response.

[91] C.C. called the previous child protection worker involved in this case, Ms. Bugden. Ms. Bugden was out of the office. C.C. spoke to a duty worker with the Society instead. The duty worker spoke to C.C. again, later in the morning, and advised that she was not able to get ahold of the father, either.

[92] C.C. and her sister then spoke to the father’s condominium building’s security office, and asked a security officer to buzz the father’s apartment. There was no response. C.C. called the Toronto Police, and asked the police to do a child welfare check. The police later advised C.C. that they had attended at the apartment, but as was the case before, there was no one there.

[93] The mother advised C.C. that she also attended at the father’s condominium on August 2, 2023 to pick up a vehicle that the father said she could have. When she attended there, the condominium was unlocked, and the contents were cleared out. Apparently the father had left a note, a copy of the ownership papers and the keys to the car.

[94] In the days that followed, C.C. made a series of phone calls to the Society and to various police forces, to seek assistance to find the father and A.M. C.C. attended at the court house for advice, too. C.C.’s counsel also sent correspondence to the Society about this.

[95] On August 9, 2023, seven days after C.C. first discovered that the father was gone, C.C.’s lawyer spoke to counsel for the Society. According to C.C.’s affidavit, the Society lawyer advised that the Society still did not know the whereabouts of the father or the child, and so the Society would be bringing a motion for a motion date “to seek judicial assistance”. [^12] Given the fact that the child had been missing for 7 days at that point, and the Society “ha[d] done nothing” (according to C.C.), C.C. brought her 14B Motion instead.

[96] That the Society “ha[d] done nothing” is disputed. The affidavit of child protection worker Krista Gingell dated August 9, 2023, sets out that the Society had been made aware by C.C. that the father and the child was not home for a scheduled access visit, on August 2, 2023. Ms. Gingell’s affidavit details that on August 8, 2023, she made various inquiries of child welfare authorities in Nova Scotia (not New Brunswick, again because the father had not shared accurate information about the province of his intended new residence), the RCMP, and the Toronto and Durham Police. According to the subsequent affidavits of Ms. Nijhawan sworn August 16 and September 26, 2023, other workers took additional steps between August 2, 2023 and August 4, 2023. Still, according to C.C.’s further affidavit of August 17, 2023, the Society did not provide her with any updates about its efforts to locate A.M.

[97] In any event, it was only after the Court granted the Order for the child’s return on August 10, 2023, that the father responded to these various efforts to locate him and disclosed his and the child’s whereabouts. On August 11, 2023, the father advised C.C. that he was with A.M. in New Brunswick, some 10 hours away. After having removed the child from Ontario in the first place, the father then shifted the burden of time and the cost onto C.C., to have the child brought back. He asked C.C. if she could pick the child up from a hotel parking lot.

[98] C.C. also received a voice mail message from the father’s brother-in-law advising her that A.M. was in New Brunswick, and that he was trying to arrange for C.C. to pick her up. When they later spoke, the brother-in-law also suggested that C.C. to pick the child up at a hotel in New Brunswick. Following this conversation C.C. called the Toronto Police and the RCMP in New Brunswick to advise as to these developments. C.C. says that she then received a telephone call from the brother-in-law. Apparently he was upset that C.C. had called the police. Consequently, the exchange would no longer take place in the parking lot of the hotel, and the child was going to be taken to the RCMP station.

[99] C.C. says she investigated flying to New Brunswick to retrieve the child, but the cost was too expensive, so she drove instead. She arranged for the child’s sister, to join her, to help make the trip back to Ontario fun for A.M. It took C.C. three days to drive back and forth between Ontario and New Brunswick to get this child here. The father was not present for the exchange at the RCMP station. This is another example that has caused C.C. to believe that he was evading arrest.

(2) The Society’s Assessment of the Situation Is Incomplete

[100] The Society’s assessment of the situation is incomplete. The Court has some concerns, that the Society is condoning the father’s behaviour.

[101] On August 11, 2023 the father spoke to Ms. Nijhawan for the first time after his departure. Again, this was after this Court’s Order for the child’s return of August 10, 2023. According to Ms. Nijhawan’s affidavit of August 16, 2023, the father told her that he moved “out East” with three children as “he had no other option”. He apparently told the Society that he was going to lose his apartment, something which I note again, had been raised as an issue in this case before, had been flagged by the Court prior to the Final Supervision Order, and had been agreed to by the parties in Statement of Agreed Facts that led to the Final Supervision Order, as an issue to be worked on by the father and the Society He also apparently told the Society that the mother in this case, and the mother of his other two children, were aware of the move. Ms. Nijhawan’s affidavit does not state that the father told her whether he had made C.C. aware.

[102] According to C.C., when she spoke to Ms. Nijhawan, to provide her with an update after she brought the child back to Ontario, Ms. Nijhawan told her that the child should be in the care of her father. This surprised C.C.

[103] That Ms. Nijhawan said something to this effect is not contested terrain. For example, Ms. Nijhawan wrote that the Society contacted all of the appropriate authorities to locate the family, but received little assistance due to the lack of “immediate protection concerns” and the father having “temporary care and custody of the child under a court order”.

[104] Ms. Nijhawan went on to say that while Society agreed that the father failed to comply with the terms of the supervision order, in the Society’s assessment “there was no indication that there were any immediate protection concerns to the child”.

[105] Ms. Nijhawan further wrote that the child has been in the care and custody of the father since March of 2022, for approximately 1.5 years, there have been no instances of any new protection concerns related to the child and the father, and the child has done well under the father’s care. Ms. Nijhawan does not have any protection concerns with the child returning to the father’s care in “Nova Scotia”, and she did not support the child remaining the C.C.’s care.

[106] Meanwhile, Ms. Nijhawan’s affidavit says nothing about the importance of the child’s relationship with C.C., or how that would be facilitated interjurisdictionally. It is also noteworthy that by this point, Ms. Nijhawan was still referring to a plan of the father’s, to relocate to Nova Scotia. The Court queries how the Society, at that point, could have considered and assessed this plan when there remained confusion about the location to which the father proposed to move? How could the Society have assessed whether and how the child welfare agency in the other jurisdiction would support the family and assist with the Supervision Order, when the Society was still referring to the wrong jurisdiction, ie. Nova Scotia and not New Brunswick?

[107] And quite apart from the fact that non-compliance with a Court order is always a serious matter, the Court also disagrees with Ms. Nijhawan, and with counsel for the Society’s subsequent oral submissions, and his supplementary written submissions, that there are no new protection concerns here.

(3) The Reasons for the Father’s Move and the Merits of the Father’s Plan

[108] In her affidavit of August 30, 2023, Ms. Nijhawan provides a very brief summary of only some of the prior proceedings. She otherwise elaborated, somewhat, about her conversation with the father of August 11, 2023, referred to above. It is in this later affidavit of August 30, 2023, that Ms. Nijhawan now explained that the father had moved to New Brunswick, not Nova Scotia.

[109] Based on that conversation with the father, Ms. Nijhawan reported that the maternal grandparents of the father’s other two children apparently offered to help the father. The father also apparently told Ms. Nijhawan that the children would be attending a particular school, which is a 20-minute drive from the home in which he intended to reside.

[110] There is additional information in the father’s affidavit of August 31, 2023. According to the father, he had been living in New Brunswick since August 1, 2023. He describes his whereabouts as being in a small community in the country with potato and wheat fields, beautiful scenery and fresh air. He describes this as a “very good place to grow children in a healthy and natural environment”.

[111] The house in which the father resides is owned by the maternal grandparents of his other two children from the prior relationship. The maternal grandparents also live there. The father says that his parents also live in New Brunswick, as does an aunt and uncle to his other children, and various cousins. He does not say where they live or otherwise describe those relationships in much detail.

[112] The father describes the maternal grandparents’ house as very big and beautiful, consisting of three levels. He describes the contents and layout of the house, which he says sits on four acres of land. He says that A.M. will have her own bedroom in this house.

[113] The father describes where the children will go to school. Although this Court ordered the father to apply for day care when in Ontario (C.C. says the father did not follow through with this), the father says he intends to apply for subsidized day care in New Brunswick now too. He says he plans to enroll A.M in community activities.

[114] The father describes various activities that A.M. enjoys in New Brunswick. The Court observes that A.M. had been in New Brunswick for a total of twelve days.

[115] In regards to the support he will receive, the father describes the maternal grandparents as being like his own parents. He says they are financially independent, own two homes and have multiple successful small businesses. He says they have always helped and been there for his children. The Court notes that no plan involving these grandparents was presented for A.M. at any point during the initial protection application.

[116] In any event, the father says that in March of 2023, the maternal grandfather became aware of his difficulties involving the mother of the other two children. At that point these grandparents were still in Ontario, but they had retired and were planning to move to New Brunswick. Apparently, the grandfather offered the father “an opportunity to move with him to New Brunswick to get away from the city life of drugs and give [him] a fresh start to better [his life] as well as [the] children”. The father says the grandfather was prepared to allow the father to stay “as long as [he] wanted rent free to help [him] save money so [he] could buy [his] own home” since the housing market in New Brunswick is cheap compared to Ontario. The grandfather apparently offered to help the father buy a car and find employment or “start a business with him”. The Court queries, if the father had all of these details as early as March of 2023, why they were not shared with the Society, the other parties, or the Court, before this Status Review started, and certainly as of July 11, 2023. That way, the Society could have at a minimum talked to the grandparents about their intentions and willingness to help.

[117] The Court also finds it notable that there is no sworn evidence before it from the grandfather as to how long the grandfather is prepared to provide housing, about the car, or about any efforts to assist the father get a job or start a business. There is no evidence before the Court about any of the father’s job search efforts in New Brunswick, or in Ontario for that matter. There is no evidence before the Court about whether the father has started to save money. There is no evidence before the Court about when the father will get a car, something that seems to be vital to the success of any interjurisdictional access plan. During argument of this motion, the father’s counsel confirmed that the father still did not have a car, although he suggested that rentals could be used.

[118] Instead, the father chose to provide an unsworn letter, authored by the maternal grandfather. In it, the maternal grandfather says that he has known the father for 24 years and has seen him go through his past struggles with drug addiction and overcome that. What he has seen is not elaborated. He also says that he is aware of “the domestic incident” that took place between the father and the mother of his grandchildren, discussed below, and he states that the father “never hit” the mother. Apparently, the mother told the grandparents that she was “on drugs at the time” and she “lied to the police” about what the father did. Not only is this particular statement from the grandfather unsworn, it is also double hearsay. Finally, the grandfather repeated what the father has said, that he is offering the father a place to live with the children “as long as he wants”. He wrote that he is helping him buy a car and will add the father to his insurance, and will assist with the children’s needs, including dentists, doctors and gymnastics or other programs. He has not specified how he is helping with the purchase of a car, or when that will occur.

[119] In his affidavit, the father described the financial hardship he faced in Ontario, exacerbated in part by what he described as the mother having fraudulently applied for A.M.’s “baby bonus”. The father said he had no choice but to go to New Brunswick.

[120] What is not addressed, is what efforts were taken, with the assistance of the Society, to address the father’s housing issues between the date of the Final Supervision Order of January 25, 2023 and the commencement of this status review. The father did not explain whether he asked, and whether the grandfather was prepared to extend some temporary financial assistance to him here in Ontario to help him with housing, or to cover him at least until this Status Review could be properly addressed. The Court does not know whether this request was made, and if it was, and if the answer was no, why the offer of financial assistance was only tied to a move to New Brunswick.

[121] Moreover, although the Court had been told on July 11, 2023, that the dispute between the father and the mother of his other two children, was perhaps going to be dealt with in Ontario under the CLRA, and perhaps the Society has been involved in the background, the father now seems to say otherwise. In his affidavit of August 31, 2023, the father says that the other mother is aware of this arrangement [involving him living in New Brunswick with the other two children] and supports it, “because she is not in a position to care for either child, lives in a homeless shelter in Oshawa, and has drug addiction issues.”

[122] These are just some of the many unknowns with this plan.

(4) The Absence of A Plan for A.M. to Have Access with C.C., the Mother and Other Family Members If the Move Is Permitted on an Interim Basis

[123] A.M. has a very close relationship with C.C., something which the father’s and the Society’s positions do not acknowledge, at all.

[124] As C.C. points out in her affidavit of September 20, 2023, the child is just 3 years old, and she has lived all of her life in Ontario. For 18 months of those three years, C.C. has been a caregiver for this child, and for most of that time, a primary caregiver. This is half of the child’s life.

[125] Even after the child’s return to the parents jointly, and then the father, at different points of time during the prior proceedings, C.C. has been a constant in the child’s life. The Court observes that the access provisions in the Final Supervision Order of January 25, 2023 were consented to by all parties [emphasis added].

[126] C.C.’s evidence is that she also ensures that A.M. sees her mother and half siblings here in Ontario. She includes the mother in family events and birthday parties, even if she is not having regular access due to her substance use issues. C.C. regularly arranges for A.M. to see her half siblings.

[127] To be clear, the Court is not placing significant weight on keeping the child in Ontario, to allow the mother more time to improve her plan. It is here, where the fact that this case is at the Status Review stage, is significant. The mother has been given ample time to address her substance use issues. The mother does not even have an Answer and Plan of Care before the Court in this Status Review. However, I still mention the mother, to point out what C.C. is doing. She is making efforts to maintain a relationship between A.M. and her mother in a safe way. What C.C. is doing demonstrates some insight, and the benefits that C.C.’s plan offers.

[128] Of utmost importance, C.C. is of the view, that a move out of the province would be damaging for the child and her relationships. This Court agrees. The Court also agrees that C.C. has been the one constant figure for this child, and continuity rests with C.C. to a great degree.

[129] In these circumstances, the failure of the father to lead any evidence about C.C.’s access and the logistics is very problematic. It is in fact dispositive of this motion. Not only is the kind of evidence that the Court requires in these cases well established in case law, but I repeat again, that this Court flagged the evidentiary issues for the parties, twice, prior to argument of this motion.

[130] The father chose to focus on C.C.’s finances rather than present a comprehensive plan of his own. According to the father, C.C. lives in a large home with her father and sister, who has three children. The father says that C.C. told him that she is financially well off, maintains two jobs, earns substantial income, does not pay rent, is single and has no dependents, cannot have children and has a side business making and selling clothing and hats. The implied if not express implication of these statements, is that C.C. can well afford the cost of travel to New Brunswick, if she wishes to continue to have a relationship with A.M.

[131] If all this is actually true, then I accept that will be relevant to the Court’s consideration about the workability of a plan involving different jurisdictions, but it still has to be looked at in context. Even if C.C. is more financially stable, that does not mean, that the entire burden of time and the cost of travel for C.C. to see A.M., gets shifted onto C.C. There is no evidence before the Court about what efforts the father will or can employ, to maintain these important relationships for A.M.

[132] To be even more specific, there is no evidence, or even a proposal before the Court from the father (or the Society for that matter), about when or how the child would travel to Ontario, or when or how C.C. would travel to New Brunswick, who will accompany the child, where people will stay, and who will fund all of this travel. What is clear, is that the father cannot financially afford it. While the father’s counsel suggested during argument that the father and C.C. could each drive and meet half-way, that C.C. could have the child once per month for up to a week, and the grandfather could assist to fund the travel, no such order of this kind was actually sought in a formal way. These suggestions were neither in evidence, and they were far too devoid of detail.

[133] The grandfather did not specify, in his unsworn letter, that he was prepared to fund travel costs.

[134] Nor did the Court have any evidence from anyone, other than C.C., about this 3-year old’s ability to tolerate long car rides. C.C. at least had the good common sense to think about this, when she arranged for A.M.’s sibling to be present for the New Brunswick pick up.

(5) The Father’s Failure to Exercise Access With A.M. Since August, 2023; The Father May be Evading Arrest in Ontario

[135] What the Court does know, which I also repeat again, is that the father did not even avail himself of the opportunity to see or have contact with A.M. after the child’s return to Ontario. According to C.C.’s affidavits sworn September 13, 2023 and September 20, 2023, after A.M. returned to Ontario, she has facilitated contact between the mother and A.M. While she also attempted to arrange for FaceTime contact between the father and the child, and the father did not avail himself of that either.

[136] It is very disappointing that the father failed to come to Ontario to see this child, after the Court sought the Society’s undertaking to pay for the trip, and the Society offered it up. The Court queries whether the father understands, that there are questions about the Court’s jurisdiction to order the Society to pay for things like travel, that what the Court asked of the Society is not a routine kind of request, and that the Society was generous in offering it up.

[137] It is also somewhat surprising for the Court to read the Society excusing the father’s behaviour. According to Ms. Nijhawan’s affidavit sworn August 30, 2023, the father was “very busy with school registration for his other children and was unable to plan”. This excuse is something that the father’s counsel also confirmed during submissions.

[138] The Court finds the father’s explanation/excuse not to be credible. The Court notes that the father took this position, even though he and those other children that he claims to have been busy with, both live with the grandparents. Moreover one of those other two children is a teenager, who already lived with the grandparents, before the father even arrived in New Brunswick. Clearly they were parenting that child without the father.

[139] If the father is being truthful as to why he could not come, then this calls into question the extent to which these grandparents are willing to help out. And if the grandparents were not able or willing to help out, to permit the father to come to Ontario to see. A.M., then this raises other questions about the extent to which the grandparents are actually prepared to help out, in the father’s plan. But there are also credibility issues about this evidence.

[140] The Court notes that on September 6, 2023, during a visit between the mother and the child at C.C.’s house (during which Ms. Nijhawan was in attendance for part of the time), the mother told Ms. Nijhawan that she had been pulled over while driving the father’s car. According to the mother, the police told her that there was an outstanding warrant for the father’s arrest. According to C.C., Ms. Nijhawan responded that the Society was aware of the warrant, that the person who is the victim of the assault is the mother of the father’s other children, and that she was currently missing.

[141] As already explained C.C. believes that the father refused to attend at the RCMP station in August when the child was returned to her care, and he subsequently refused to return to Ontario for his access visit due to the outstanding warrant for his arrest. The Court finds the father’s failure to avail himself of the visit, in light of the financial resources offered for it to happen, to be so incomprehensible, that it lends an air of reality to C.C.’s theory.

(6) The Society’s Failure to Lead Evidence About Access

[142] The Society’s failure to lead any evidence about access has compounded the evidentiary problems on this motion. In its Notice of Motion, the Society would have the Court order the move, leave the question of access between A.M. and C.C. to be sorted out between the father and C.C., and in the event of a disagreement let the Society decide. In Ms. Nijhawan’s affidavit of September 20, 2023, she writes that it would be “ideal” if all parties could come together to plan for A.M. “amicably” and she will facilitate a family group conference. Yet as I have already indicated, over one month elapsed between August 22, 2023, when this Court scheduled this motion, and the date it was argued, yet no meeting occurred to discuss access or logistics.

After not having filed the necessary evidence or done any of the leg work to sort out these logistics before hand, and in the face of the Court twice reminding the parties about the calibre of evidence needed, the Court does not accept the Society’s submission that this Court should send the child to New Brunswick for an indeterminate period of time “that allows them to re-establish a connection that’s been lost over the last few weeks”. Nor was the Court prepared to schedule another date to deal with an access motion, or invite more written submissions.

(7) A.M.’s Age, Stage of Development and Maturity, and Views and Preferences

[143] C.C. offered some observation evidence about A.M., after she picked her up from New Brunswick in August. C.C. says that A.M. was initially quiet and sad, but by the time they were mid-way back to Ontario, she seemed more like herself. C.C. says that A.M. told her that she wanted to go home with her, and that her father had hit her. C.C. says that since they have been back in Ontario, she has been acting more like herself, and is happy and talkative. C.C. has also noticed the child to be more clingy towards her, and she says that A.M. does not want to drive in the car. C.C. believes that A.M. has been traumatized by the abrupt change to her routine.

[144] C.C. says the child does not want to go back to her father’s care. The father says the opposite.

[145] While I have considered C.C.’s observation evidence and place some weight on it to the extent that it speaks to A.M.’s attachment to C.C., I also note that this child is 3. To the extent that there is evidence before the Court about the child’s views and preferences, it is conflicting. In any event, given the child’s young age, it does not factor heavily into this Court decision on this motion.

(8) The New Protection Concerns Respecting the Father

[146] I agree with the Society, that the father has made many improvements respecting his past substance misuse. He also separated from the mother, and in so doing addressed the parental conflict, previously a concern.

[147] However, the father is now facing criminal charges respecting family violence against a different, former partner, and it is alleged to have occurred in A.M.’s presence. There is the outstanding warrant. I find these two clusters of facts to be significant.

[148] In his affidavit of August 31, 2023, the father has described the incident leading to this charge. He says this occurred on March 20, 2023. According to the father, it was the other mother who punched him in the face, and she then dragged one of the children by the hair in the hallway of the apartment. The father says that this mother is also addicted to crack cocaine. The father goes on to say in is affidavit, that he heard that the police are looking for him. He says he learned about this from the Society’s disclosure.

[149] The father said he plans to deal with this warrant. He said he has consulted with a criminal lawyer and lined up a surety for his bail. Notably, the father said that he intended to turn himself in as soon as his criminal lawyer is back in his office on September 5, 2023. Yet according to Ms. Nijhawan’s affidavit of September 20, 2023, when she later spoke to the father about this on September 18, 2023, he was still “speaking to his criminal lawyer” but he wanted to “deal with this matter as soon as possible”. He also apparently reported that the other mother was supposed to “withdraw the charges” but had not done so because of her “reported relapse”.

[150] As set out earlier, although the father’s counsel said on September 27, 2023 that the father would provide the CPIC by September 29, 2023 and that was not done, C.C. and the Society nevertheless sent to the Court their brief supplementary written submissions, on October 6 and 11, 2023. In its supplementary written submissions, the Society says it is satisfied with the father’s evidence in response to the March 22, 2023 incident, and that it does not create an “ongoing protection concern”.

[151] The Court disagrees with this. Not only does the father’s continuing failure to deal with the warrant raise questions about his credibility (since he told the Court he would deal with it, and then did not do so), it also raises different concerns about his willingness to comply with orders, and in this instance, requirements in the criminal justice system. Might the father not be arrested on this warrant while the child is in his care? What happens then?

[152] Furthermore, although the updated CPIC has not been produced, the Society did produce a police occurrence report related to the incident in question. While portions of it are redacted, there is sufficient information for the Court to understand much of the allegations. The allegations very much differ from what the father deposed to.

[153] According to the redacted report, it appears that in or around March of 2023, a complainant, who I assume is the other mother, reported that the father had moved into her apartment after he was evicted from his apartment. She reported that the father was not doing housework and the apartment had become cluttered and disorganized. Apparently the day before the report, there had been a verbal argument, but no assaults or threats had occurred. However after another argument over the cleanliness of the apartment ensued, it is alleged that the father violently grabbed the person who it appears is the complainant, by the back of the hair in the hallway of the apartment before pulling that person to the ground. He then gathered up the two children, including A.M., to leave. It is alleged that the father was holding the child while the complainant was standing in the interior of the apartment. The allegations include that the father was using his body in a “body checking motion” while holding A.M.

[154] During oral argument, the Society submitted that the risk was addressed by the fact that the “alleged victim” is not in the home. Counsel also described to the allegation as “specific adult conflict” between the father and another person.

[155] It is not clear to the Court why the Society appears to be accepting the father’s version of events over the account in the police report. It is equally unclear to the Court exactly what investigation or assessment the Society undertook to formulate these positions about family violence.

[156] The Court appreciates that these charges have not yet been proven and that the father is no longer living with the other mother. However, proof beyond a reasonable doubt in the criminal context is not the standard in child protection. If it is found that the father engaged in a violent act towards a new partner, exacerbated by the fact that he is alleged to have been holding A.M. in his arms, then this is an “ongoing protection concern”: see Barendgret v. Grebliunas, 2022 SCC 22 ¶ 143-147; see also ¶ 184 ad 185 in particular.

[157] Even if the father’s version of events is true and he was the victim, then the child was still exposed to this family violence. The father apparently now has the other two children of that relationship in his care. The Court has no information whatsoever about what the access arrangements between those children and this other mother (who the father says is an addict, who acted violently towards him) will have, and whether A.M. will be implicated in that.

[158] The Court is also troubled by the suggestion in the father’s affidavit material, and in the grandfather’s unsworn letter, that both the father and the grandfather seem to be making. That is, that this other mother should be disbelieved about the family violence, tied to the fact that she suffers from addiction. Just because someone suffers from addiction does not make them less worthy of belief, when they are a victim of violence.

[159] Finally, while the Court appreciates that the father was struggling financially and may have had limited options, the Court further questions the father’s judgment, by going to stay with this former partner. Again, the father has made strides to address his past substance use, yet he chose to take A.M. and to go and stay with a person, who according to his own evidence, is a liar and a drug addict. He placed himself and the child into an environment where he might be exposed to drugs. He has now been charged as a result of events that transpired.

[160] And in regards to credibility, again, the Court also notes from the police report, that as of March 2023, the complainant told the police that the father still had access to his own apartment, although he had been “evicted”. This seems consistent with what was reported to the Court in the Statement of Agreed Facts in January of 2023, that the father could remain in the condominium on a month-to-month basis.

[161] As with the pans, there are unanswered questions about the father’s lack of housing in Ontario, why the father was even there in the first place, for how long he was there, and what happened.

(9) There Is No Evidence About What Role, if Any, the New Brunswick Child Welfare Agency Will Have Going Forward

[162] While the Society and the father may now be of the view that this Status Review will come to an end with the Society no longer being involved with the family (because there will be a section 102 order), that outcome has not been agreed to and approved by this Court, or adjudicated. The Court reminds the father, and the Society, that until one of those things occurs, the Final Supervision Order applies, and that requires the Society’s supervision.

[163] Even according to the Society’s own position, were there to be an interim move, terms of supervision would still be in place. They would have to be managed by the Society, with the assistance of a New Brunswick agency. And even if this Court were to permit the move on an interim basis, this Court would not necessarily just be prepared to grant a final section 102 Order, as an immediate next step.

[164] For example, there would need to be a proper assessment of the others in the household in New Brunswick, and a proper understanding of what the grandparents are prepared to offer and not offer. There may need to be the passage of some time, during which the situation can be monitored and assessed, to ensure the stability of this placement. There would need to be information about the other children in the home and their interactions with A.M. There would need to be information about their contact with the other mother and any impact of that on A.M. (particularly as there are apparently protection concerns respecting this other mother). There would need to be an assessment of how A.M. is doing in the new arrangement in New Brunswick, and there would absolutely need to be a proper, interjurisdictional access plan, and perhaps some monitoring of that over time, to ensure its success.

[165] There is a dearth of evidence about whether the New Brunswick child welfare agency will become involved to assist the Society to discharge its obligations, and if so, what exactly it is prepared to do. According to Ms. Nijhawan’s affidavit of August 30, 2023, it was only the day before she deposed it that she even asked the New Brunswick Interprovincial Request Desk for a “home assessment” for the father. I assume part of the reason for this, was the Society’s lack of awareness, until not too long before it made the request, as to the father’s whereabouts (ie. in New Brunswick and not Nova Scotia).

[166] According to Ms. Nijhawan’s affidavit of September 20, 2023, the New Brunswick child welfare agency’s home assessment study has now been completed. Ms. Nijhawan attached it as Exhibit “A” to that affidavit.

[167] I have reviewed the assessment. It is basic evaluation of the physical aspects and safety of the home, such as the presence of smoke detectors and the like.

PART IV: ORDER

[168] Based on the foregoing, I make the following orders:

(a) The Society’s and the father’s motion is dismissed;

(b) C.C.’s request that the Court appoint the OCL and request it provide a section 112 report, is dismissed;

(c) Except for the father’s disclosure obligations under the August 22, 2023 Order, which remains in force, this Court’s Orders of August 10 and 22, 2023, are vacated;

(d) A.M. shall now be placed in the temporary care and custody of C.C.;

(e) The father’s holiday access set out in paragraph 6 of the Statement of Agreed Facts that forms part of the Final Supervision Order is suspended;

(f) The father shall not remove the child from Ontario without the consent of the Society and C.C. in writing, and not without first obtaining an Order of this Court, to allow this Court to review and approve any proposal that may be agreed to. If an agreement is reached before the next court date, it may be sent to my attention by 14B Motion;

(g) Failing an agreement between the parties, the father shall not remove the child from Ontario without an Order of this Court;

(h) If the Society, the father and C.C. are unable to agree, and do not submit a consent for the Court’s review respecting the father’s access, that issue will have to be discussed at the Settlement Conference, below;

(i) The terms of the Final Supervision Order dated January 25, 2023 respecting the parents and the mother’s access otherwise continue; and

(j) The parties are to proceed to a Settlement Conference, as the Court previously directed that was to be the next step;

(k) The Settlement Conference is to proceed on December 11, 2023 @ 3 PM – 60 Minutes. As the father is in New Brunswick, the Settlement Conference will proceed by zoom;

(l) If counsel or the parties are not available, then they may contact me through the trial coordinator’s office to arrange a different, reasonable date;

(m) Briefs with comprehensive plans for A.M.’s relocation, and for the scenario where A.M. remains in Ontario, shall be filed. The parties shall also file Offers to Settle;

(n) If costs of this motion are being sought, then within 7 days, the person claiming costs is to notify all of the other parties of his or her intention, and he or she shall indicate against whom costs are being sought. I will hear brief submissions at the next court date;

(o) For the hearing on costs, if pursued, the Court requires any case law and a Bill of Costs. Those are to be exchanged at least 7 days before the return date; and

(p) The Court staff have asked me to ensure that any outstanding 14B Motions that were filed leading up to the hearing of this motion are disposed of in this decision. It is my impression that this decision resolves all outstanding 14B Motions. Order accordingly. If I am mistaken and some other procedural order is required, that may be addressed on the return date.

Justice Alex Finlayson Released: October 16, 2023

Footnotes

[^1]: C.C. did not pursue an order appointing the OCL under section 78 of the CYFSA; the Society expressed concerns during oral argument of the motion that such an order would cause delay. I say nothing further about an OCL appointment under section 78, as this was neither claimed nor fully argued. [^2]: The Court did this in its Endorsement of July 11, 2023 when it booked a Settlement Conference. The Court did this in a more detailed fashion on August 22, 2023 when it scheduled this motion. [^3]: According to the affidavit of child protection worker Kusum Nijhawan sworn August 16, 2023, C.C.’s critism of the Society, that C.C. was the first person to tell this to the Court, is misleading. Ms. Nijhawan says that the father had merely expressed an interest in moving, and he did not provide a date or a plan for the move. As such, the Society did not have any reason to believe this was a live issue when the pleadings were completed. However, the Court further notes that in his affidavit of August 31, 2023, the father said that as early as April of 2023, he told Ms. Bugden of his extreme financial hardship and that he struggled to pay rent in groceries. He also said he told C.C. when he dropped A.M. off, that he planned to move to New Brunswick. The father has attached text messages from March of 2023 and May of 2023, in which he raised the issue of the move with both the Society and C.C. His text message to Ms. Bugden clearly indicated an intention. [^4]: Ms. Scovino had previously represented the father during the protection application. [^5]: The Final Supervision Order did not authorize the delegation of supervision to a New Brunswick agency. [^6]: The OCL has never been appointed in this case. [^7]: The New Brunswick child welfare agency’s assessment was completed after the date of this Notice of Motion, but before the argument. Perhaps there are more assessments to be done, but there was no other evidence before the Court about how, if at all, New Brunswick would be involved any further. [^8]: The Court did not specifically require facta in its Endorsement of August 22, 2023. It did indicate that facta would be helpful though, given the complexity of some of issues. Only C.C. and the father filed facta. [^9]: The decision in Linck Child, Youth and Family Supports v. P.A. also involved a FNIM child. As the child in this case is not a FNIM child, the considerations that the Court in Linck applied to indigenous children do not have application in this case before me. Therefore I will not repeat them [^10]: For example, see Sherr J.’s comments about interim relocations in status reviews, in Children’s Aid Society of Toronto v. GM, 2015 ONCJ 462. [^11]: It was not argued which of these sections, if any, apply. [^12]: In its 14B Motion, also dated August 9, 2023, in addition to seeking judicial assistance, and a date for a contempt motion, the Society additionally sought an order for police assistance to locate the child. As already indicated, the Court notes that the Society’s request did not include a request for an order that the police assist with the child’s return to Ontario, just that the police find the child. The Court is perplexed by this omission.