2024 ONSC 4334

Court File and Parties

COURT FILE NO.: FC-21-526-02 DATE: 20240812 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dnaagdawenmag Binnoojiiyag Child and Family Services AND: C. T., Respondent Mother J. C., Respondent Father

BEFORE: Madam Justice R. Sonya. Jain

COUNSEL: Katie Akey Counsel, for the Applicant Christopher Severn, Counsel, for the Respondent Mother Nirjari Desai, Counsel, for the Respondent Father

HEARD: May 22, 27, 28 and 31, 2024

Trial Decision

Introduction

[1] This matter came before me for a status review hearing conducted under s. 113 of the Child, Youth, and Family Services Act, 2017 (hereinafter referred to as the “CYFSA”) regarding the child, “LCT” born October 12, 2020 (hereinafter referred to as “LCT” or “the child”. The Applicant is Dnaagdawenmag Binnoojiiyag Child and Family Services (hereinafter referred to as “DBCFS” or “the Agency.” The mother is “CT” or “the mother” and the father is “JC” or “the father”.

[2] In this status review proceeding, the parties do not agree on whether or not the child continues to be in need of protection. The father believes that protection concerns still exist for the child when he is in the mother’s care. However, the Agency and the mother do not believe there are any protection concerns for LCT as a result of the parties’ parenting.

[3] The parties seek an order under s. 102 of the CYFSA for deemed custody. The Agency seeks an order for joint custody (joint decision-making authority and week-about parenting). The father seeks sole decision-making authority and primary residence and care to him. The mother seeks sole decision-making authority and primary residence and care to her.

[4] I have read and relied on the following documents:

(a) Trial Record; (b) Society Application Form 8B (Status Review) dated August 17, 2023 (c) Society Motion, dated May 10, 2024; (d) Affidavit of Child Protection Worker (CPW), A. Martinez, dated May 10, 2024 (Exhibit 1); (e) Affidavit of Child Protection Worker (CPW), D. Barrett, dated May 10, 2024 (Exhibit 2); (f) Statement of Agreed Facts dated May 22, 2024; (g) Exhibits #1-11. (h) Written closing submissions from the Agency, CT and JC.

The Law

[5] In support of the orders sought, the parties are relying upon s. 113, s. 114, s. 102 and s. 104 and s. 74 (3) of the CYFSA. They are further relying upon s. 8, s. 9, s. 10, s. 16 and s. 17 of An Act Respecting First Nations, Inuit and Metis Children, Youth and Families, SC 2019, c 24 (hereinafter “Act Respecting FNIM”). The primary or paramount consideration for both federal and provincial acts is the best interests of the child. The best interests of the child as set out in both the CYFSA and the Act Respecting FNIM are determinative in disposition as it relates to Indigenous children.

[6] Status review applications are specifically governed by s. 113 and 114 of the CYFSA and there is a two-part process for determination of a status review application. The two-part process for determination of status review applications, established thirty years ago in Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), remains good law and continues to be followed:

1. First, the court must first determine whether the subject-child continues to be in need of protection and as a consequence requires a court order for his or her protection. In this respect: a. The original order is presumed to be correct. This is not a re-hearing of a previous order made. b. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. c. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection, or from circumstances which have arisen since then.

2. Secondly, the court must consider the best interests of the child, conducted from the child’s perspective. [2]

[7] Section 102 of the CYFSA provides that the court may make an order granting custody of the child to one or more persons, with the consent of the person(s) and if it would be in the child’s best interests.

[8] According to s. 104 of the CYFSA, the court may, when making an order under s. 113 (1) make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

Decision

[9] For the reasons set out below, I find that the child LCT is no longer in need of protection and that a deemed custody order is the correct manner of resolving this case. I find it is in the best interests of the child for there to be a court order placing the child in the deemed custody and primary residence of the mother CT with regular scheduled access/parenting time to the father JC.

Background and Undisputed Facts

[10] Since 2021, the family have been primarily involved with DBCFS, with assistance from Family and Children’s Services of Guelph and Wellington (“Guelph CAS”) and Family and Children’s Services of Waterloo (“FACS Waterloo”) supervising the mother. Prior to 2021, there has been involvement from multiple societies at an ongoing level with the mother dating back to 2017 including Simcoe Muskoka Child Youth and Family Services (“SMCYFS”), Bruce Grey Child and Family Services (“BGCFS”), and Highland Shores Children’s Aid (“HSCA”). The earlier involvement with the mother was with respect to the mother’s first-born child, who was adopted.

[11] The mother is 25 years old and resides independently in Port Hope, Ontario. She has two younger children in her sole care, (who are 1 year old and just under 6 months old). The maternal grandmother also resides in Port Hope, Ontario. The father is 26 years old and resides with his firstborn child (who is 7 years old) in Stayner, Ontario in the home of the paternal grandmother and paternal grandfather.

[12] The paternal grandmother is BC (hereinafter “the paternal grandmother”). The maternal grandmother is KT (hereinafter “the maternal grandmother”).

[13] The former partner of CT is SF. SF is the biological father of CT’s two younger children that are in her care. CT and SF were in a relationship from approximately July 3, 2022 to the summer of 2023. They were both parties to a child protection matter brought by FACS Waterloo. Their worker was Ms. Adriana Martinez.

[14] LCT is a child of Metis heritage through the father, (the paternal grandfather is a member of the Metis Nation of Ontario). LCT is also of Black and/or Latin heritage through the mother. Currently, the child resides 50/50 week-about with both parents (pursuant to the order of McDermot J. dated June 6, 2023). The parents reside approximately 3 hours away from each other. The child LCT is almost 4 years old and he will be starting junior kindergarten in September 2024. In order to attend school in September, the child can no longer reside week-about with both parents.

[15] The child LCT is generally happy and content in the care of both parents. He is an active child. He is well bonded to both parents and to his siblings, grandparents and extended family. LCT was unable to be enrolled in daycare due to the 50/50 parenting time schedule. He is delayed in speech and language and he requires speech therapy. Other than that need, LCT is healthy and meeting developmental milestones.

[16] The legal placements for the child have varied numerous times throughout the history of this matter. These various placements for LCT include: the care of the mother and father prior to Agency involvement; primary care of the mother; primary care of the mother with supervision; twice in the care of the Agency (placed with the father and paternal grandmother); joint care of the mother and father with supervision and requiring the mother to reside in Port Hope and the father to reside with the paternal grandmother.

[17] There are many significant and relevant facts that are agreed. They are all included in the Statement of Agreed Facts (SAF). Contained in the SAF is a chart outlining the supports and service providers for both parents and the child. I note that the majority of the service providers and developmental supports and/or assessment have been engaged by the mother and/or are located where the mother resides. These include the family physician, pediatrician, nurse practitioner, Healthy Babies, Healthy Children, Kids Ability, Community Health Centres of Northumberland, Northumberland Child Development Centre FUNdamental Sports. One service provider that was not engaged by the mother is a pediatrician in Orillia, who was engaged by the paternal grandmother.

[18] Prior to and following the child’s birth, the mother resided on and off with the father in the paternal grandparents’ home in Stayner. Since the child’s birth, the mother has resided in many different locations including Stayner, Burlington, Guelph, Cambridge, Ayr, and Port Hope. She has relied upon and accessed services and supports by residing in supportive housing programs like Shifra Homes Maternity Residence and Shelter; Michael House Women’s Shelter and Parenting Support Program; and Women’s Crisis Services of Waterloo Haven House Crisis Shelter. She resided with her ex-partner, SF, on two occasions in Ayr, Ontario. She has also resided temporarily at various locations while awaiting shelter including the maternal grandmother’s home. From November 1, 2023 to present, she has resided in her own apartment in Port Hope.

[19] The mother has been consistently cooperative and maintained engagement with the child protection workers. She has engaged and maintained supports. She was discharged from Michael House Supportive Housing Program in April 2023 after completing the program. She relocated to Port Hope on or about November 1, 2023 to leave the relationship with SF and to reside closer to the maternal grandmother for support. The mother has been residing on her own with LCT and his two younger siblings since that time. She is a stay-at-home parent and has provided primary care to her three children during the week-about arrangement independently since November 2023 without any protection concerns.

[20] Prior to and since the child’s birth, the father has resided with the paternal grandmother in Stayner. Initially, the father was highly reliant on the paternal grandmother to assist in parenting the child. He still receives significant support from the paternal grandmother to parent the LCT, and to parent his first-born child. The father has Attention Deficit Hyperactivity Disorder (“ADHD”). The father’s first-born child has ADHD and ASD and has some significant needs.

[21] On a regular and consistent basis, the paternal grandmother has made frequent and ongoing referrals to DBCFS about the mother. At the time of the child’s birth, the parents were residing at the home of the paternal grandmother. Due to concerns about their parenting, the parents were advised they would need to stay there, however, the mother became unwilling to continue to reside there due to conflict. The mother and father left the home in the spring of 2021 and then returned to the paternal grandmother’s home. The mother later left the paternal grandmother’s home with the child. The Agency took the child to a designated place of safety and on May 14, 2021 the child was placed (without prejudice) with the paternal grandmother until July 16, 2021 when the court heard a Temporary Care and Custody Hearing (TCCH).

[22] The issues before the court on July 16, 2021 were not whether or not there were reasonable grounds to believe there was a risk that the child was likely to suffer harm, (both parents admitted they needed help at that time). The Agency sought an order placing the child in the care of the mother under terms of supervision. The mother agreed. The father disagreed. The main issues before the court that day were regarding: a finding on the issue of which parent was the pre-intervention caregiver for the child; and a temporary order under s. 94 (2) (b) placing the child in the care and custody of either:

(a) The mother with terms of supervision; or (b) The father with terms of supervision; or (c) The mother and father with terms of supervision.

[23] On July 16, 2021 I made a finding that based on the evidence before me at the time, the pre-intervention caregiver was both the mother and the father. I made an order that placed the child in the primary care of the mother with supervision and requiring that the mother was to reside at Michael House. I further made an order placing the child in the care of the father secondarily on alternate weekends.

[24] Another motion was brought by the mother on December 13, 2021 to vary and expand the mother’s parenting time to permit her to have unsupervised parenting time and additional overnight parenting time outside of Michael House (over Christmas and at the maternal grandmother’s house). The Agency was supportive of the mother’s motion. The father was not. On that day, I made an order varying and expanding the mother’s parenting time to include some unsupervised parenting time and overnights outside of Michael House. Several consent orders followed, including a consent to s. 90 (2) and s. 74 Findings on February 4, 2022 as follows:

1. Section 90 (2) Findings a. The child’s name and age to be found at future date following the mother acquiring the child’s Statement of Live Birth or Birth Certificate. b. The child is of Metis Heritage through the father, the father being affiliated with Metis Nation of Ontario and the community of Timiskaming. c. Child was taken to a place of safety from the charge of the parents in Collingwood.

2. Finding in need of protection made on consent of all parties per s. 74 (2) (h) (risk of emotional harm).

[25] On June 23, 2022 a final four-month supervision order was made on consent by Daurio J. confirming the s. 90 (2) Findings and the s. 74 (2) (h) Finding in Need of Protection per the order of Krause J. dated February 4, 2022. The final order of June 23, 2022 placed the child with both parents equally on a 50/50 week-about schedule subject to terms outlined in the order.

[26] A final six-month supervision order dated June 6, 2023 was made confirming the s. 90 (2) Findings; and the Finding in Need of Protection under s. 74 (2) (h); and placing the child in the primary care of both the mother and father on a week-about basis subject to terms and conditions outlined in the order.

Evidence of the Father

[27] According to JC, he has always been and continues to be concerned about the child when in the care of the mother. He said that when he and CT were together, he “witnessed” her substance misuse. He denies that he misused drugs. He believes that the mother’s substance misuse still remains a concern and he doesn’t believe it will change because according to him, CT’s mental health is still a concern.

[28] The father characterized his relationship with CT as “hell.” He asserted that CT had a long history of patterns of unstable and conflicted relationships. He said that CT told him troubling stories about previous boyfriends. He said that during his conflicts with CT, she would run away and admitted to him that she was using drugs. He alleges that she also gave him drugs (by crushing meth and putting it in Gatorade and giving it to him) without telling him. He further stated that he witnessed CT mixing meth in her Gatorade every day and that this was before the child was born. He confirmed that they separated a lot during their conflicts. Most of the father’s assertions were regarding incidents that may or may not have occurred prior to the child being born and/or prior to Agency involvement.

[29] The father alleged that CT is still in a relationship with SF and that she is exposing the child to SF and further conflict and violence. The father and paternal grandmother further alleged that the child is being physically abused when in the care of the mother. They alleged that the mother has “pulled his hair” and hit him (inflicting numerous unexplained bruises). They have made these reports to the Agency. The paternal grandmother even made a report to the Agency on the first day of the trial regarding purported evidence that CT was allowing SF to have contact with the child.

[30] During cross-examination the father didn’t give clear details and dates to support his allegations. He asserted that there were “lots of incidents” and confirmed they were “before the child was born” and that there is “a lot going on, on Facebook” and that this is “stuff that is being sent to them.” He admitted that he had only met SF once, (summer 2023) and that CT was not there. CT and SF were broken up at the time and he has never observed a fight between CT and SF. He confirmed that all his knowledge about SF and CT’s relationship is just what SF told him.

[31] He asserted that even though the DBCFS seeks an order that if the child is placed with either parent, they should live with or in proximity of their mothers, he would be concerned that CT would not comply with the court order and that she would allow the child to have contact with SF.

[32] The father’s evidence was that he was the better parent to have primary care of LCT. He described how he has provided care for his eldest son who lives with him and the paternal grandmother. He said that his eldest child “has been in his care since birth. He is seven now. He has been in his household. He is fed, goes to school, he has speech impediment, he gets services. I do what I gotta do. I take him to school. I play with him for hours. I do what I have to do, with my mother’s help.” However, during the cross-examination by Mr. Severn, JC confirmed that his mother usually comes with him to drive the eldest child to school. The father said that he drives him to school and “grandma takes him in.” JC did not know the child’s teacher’s name. He did not know the principal of the school. He did not even know the name of the school. The father’s eldest child is diagnosed with autism and ADHD. The father confirmed he has an occupational therapist, but he said that “I don’t know his name. I am not good with names.” He further confirmed that the child’s appointment schedule was unknown to him.

[33] When discussing his care of the child LCT, he didn’t answer the question on whether he attends his appointments. He indicated that LCT has a bedtime routine of going to bed at 7:30 p.m. He said that gives him “a sippy cup, they watch cartoons and then he shuts the door and leaves the radio on.” He went on to describe LCT as being fussy and only liking junk food. He said that LCT’s favorite foods as “pizza, McDonalds, hotdogs, and chips.” He said that LCT is picky and won’t eat a lot of things. He likes pasta and lasagnas. The father said that sometimes he cooks, but sometimes it is his mom or dad. He said they go to a park a lot. Sometimes it is just him and LCT, and sometimes it is him, and the paternal grandmother and the kids.

[34] The paternal grandmother is not a party to his proceedings; however, she provides ongoing support and care for the child during the father’s parenting time. The paternal grandmother’s evidence was that she has serious concerns about the mother (both currently and from the past). In fact, she even made a report of her concerns about CT to the Agency worker D. Barrett on the morning of the first day of trial. She sent Ms. Barrett pictures she obtained from Facebook and made allegations that this was proof the CT and SF were spending time together with LCT. [3] Additionally, she has made reports to the Agency prior to other court dates, (in December 2023 she made allegations that the mother had hit LCT (causing bruises on his bum) and pulled his hair. In May 2024 she again reported concerns about LCT having “lots of bruising and no explanation” for them. She sent pictures taken on October 13, 2023, February 25, 2024, and May 19, 2024 allegedly showing LCT with bruises and scratches on his legs. [4] She says that LCT has told her that “mommy” did this to him. The paternal grandmother said that she “takes pictures of him when he goes back to mom” and there are no bruises or scratches occurring when in the father’s care.

[35] The paternal grandmother also spoke about CT’s abusive behavior towards JC, the high level of conflict, and CT’s substance use (all prior to the child’s birth). She went on to say that every time CT has dated someone since she and JC broke up, CT’s ex has come to talk with them and tell them about the adult conflict during their relationship. She said that there was a lot of chaos while CT resided with them. They had cameras installed around the house because of her behaviors. The paternal grandmother asserted that at the end of the relationship between JC and CT, that CT “left drugs (crack cocaine)” accessible to JC’s eldest child, “who could have used it and hurt him.” [5] The paternal grandmother also asserted that CT does not obey court orders. She gave evidence about an incident in July 2023 where CT allegedly did not tell the Agency or the father she was living in a shelter. This caused a huge conflict during an exchange whereby the father and paternal grandmother withheld/overheld the child and he wasn’t returned to the mother’s care until August (when a motion was brought on the issue).

[36] The paternal grandmother denied that she is the primary caregiver to the children during JC’s parenting time. She said that JC is a “shy” person, and that she is her grandchild’s “voice.” She said that JC “is dad, and he does his part. He is there for pick up and drop offs at school.” She went on during her direct evidence and cross-examination to give significant details about the care and needs for JC’s eldest child. [6] In my view, she was inconsistent in her evidence because by her own admission, she stated that she makes the “majority of the decisions” regarding JC’s eldest child, but that she said she “talks” to JC and the child’s mother, so it is “collaborative.” She asserted on the stand that “it won’t be the same” for LCT “because it is easier” for JC “to parent him”. The elder child is more “complicated.”

[37] Regarding care of LCT, she clearly indicated different activities they do together like camping every weekend in the summer with a trailer and going to the YMCA for swimming. The paternal grandmother gave details about LCT’s bedtime routine, saying that “once I get him settled, he is asleep at 8 pm. He sleeps in a bunk bed. I walk him in and tuck him in.” She described LCT as a child who “eats everything.” She said he “loves breakfast peanut butter and toast and eggs. We eat a lot of chicken and potatoes and vegetables. Dad makes mac and cheese. Dad has alone time with the children and takes them to the park.” She said that she supports all her kids and grandkids. She said that JC pays rent to reside with her, and that he “hands her money to buy the kids clothes. He hands over the Child Tax benefits to her, and they go shopping for the kids.”

[38] During cross-examination by Ms. Akey, the paternal grandmother confirmed there was lots of conflict between JC and CT at the time of their separation, and that those concerns are historical. She also confirmed that during the times they lived with each other, she has “seen” the mother use drugs, but not since then. Since their separation, she has not actually witnessed the mother providing care for LCT. She says that “the looks CT gives her” at exchanges are “like she wants to kill her.” She said there has been “a lot of conflict” between CT and SF, but that she has never observed any conflict. She then corrected herself and gave one example of witnessing conflict at one exchange in June/July 2023. She said, “we could hear yelling” and heard SF yell at CT. The paternal grandmother also stated that the mother refused to provide consent to enroll LCT in counselling when the paternal grandmother was trying to organize same.

[39] During cross-examination by Mr. Severn it became very clear to the court that the paternal grandmother’s allegations about the Facebook pictures in Exhibit 5 were speculative and without merit. She could not identify the location or date of the pictures. She could not verify the age of the children in the pictures or whether they were taken before or after Krause J.’s order dated November 2023. Despite this, the paternal grandmother remained adamant that it was proof CT could not be trusted and that CT was putting LCT at risk. Further, Mr. Severn showed the paternal grandmother a text thread between CT and the paternal grandmother dated July 16, 2023 12:22 pm that contradicted her evidence about the conflicted parenting time exchange in July 2023, and her allegation that CT did not advise them to exchange LCT at a shelter. [7] Further, in the Joint Book of Documents at page 92 Tab 7D, there is an email dated July 5, 2023 confirming that the paternal grandmother called the Agency and told them CT was at a shelter. So, the paternal grandmother knew that CT was at the shelter before the overholding incident on July 16, 2023.

[40] Lastly, during cross-examination when the paternal grandmother was discussing how CT refused to give consent to Newpath for counselling, she said that Newpath, “needed both mom’s consent” and then she corrected herself and said “both parents” consent. In my view, this “slip of the tongue” was quite notable regarding the paternal grandmother’s view of her role as a caregiver to LCT, especially when taken in the context of the other evidence adduced at trial.

[41] I found that the father’s evidence and the paternal grandmother’s evidence was self-serving, evasive, full of speculation and hearsay and lacked maturity and insight. I gave it very little weight. I did not believe the father’s evidence that he “never misused drugs” or that the mother had put drugs in his drinks without his knowledge. My impression of him was that he denied any responsibility for his past misuse of drugs because he is afraid of the paternal grandmother’s reaction. Further, although he acts and/or says negative things towards and about the mother, my impression is that he does so because he is so highly dependent upon the paternal grandmother. He will say whatever is required to support the paternal grandmother’s narrative and maintain her approval and support.

[42] Most of their “information” was sourced from things the father and paternal grandmother perceived they saw on Facebook, social media or they heard or saw through other people’s reports to them. The father admitted that he has only met SF once (after CT and SF separated). The father said that SF swore an affidavit to support him, however, this affidavit was not submitted, nor did SF testify or corroborate anything alleged by the father or paternal grandmother. The access exchange incident that arose on July 16, 2023 was at best a misunderstanding that was caused by unclear or lack of communication (which in my view was made worse by the father and paternal grandmother’s assuming the worst of CT). At worst, that incident was an example of what the father and paternal grandmother will do to take matters into their own hands and act unilaterally to the detriment of LCT. In fact, nobody testified to support, corroborate or verify the father and paternal grandmother’s allegations and assertions. The mother denied the father’s allegations. The Agency did not verify any of the father’s or paternal grandmother’s current allegations or protection concerns. I find that the father and paternal grandmother’s evidence was insufficient and unreliable, and it did not support a further need for supervision of the mother.

[43] Further, two things became very clear to the court from the evidence of both the father and the paternal grandmother. Firstly, the father and paternal grandmother have a very low opinion of the mother. The majority of their evidence was focused on making negative statements about the mother and repeating their perspectives of the past conflict and behaviors. They gave the mother zero credit for any progress that she has made. They took zero responsibility for any aspect of the conflict or the parenting concerns.

[44] Secondly, it is very clear that the paternal grandmother is truly the primary caregiver of the children when LCT is in the father’s care. She controls the money, food, residence, general welfare and day to day routines for the child.

[45] The father and paternal grandmother are completely distrustful and unsupportive of the mother’s care of LCT. I do not believe they have shown any insight into how they have contributed to the LCT’s exposure to conflict and emotional harm. The paternal grandmother’s pattern of constant allegations of protections concerns and reports to the Agency, along with her taking pictures of the child before and after visits shows that she has and will continue to have a negative view of the mother and she will keep trying to collect evidence and twist it against her. In my view, if the child was to live primarily with the father and paternal grandmother, his relationship with his mother will not be supported, and in fact, it will likely deteriorate due to their negative approach to the mother.

Evidence of the Agency

[46] According to the Agency, there are no remaining protection concerns requiring the Agency’s involvement in this proceeding. The mother agrees. The Agency asserts that each parent has positives to offers and bring different strengths to the parenting. The Agency asserts that the mother has addressed the Agency’s concerns by:

(a) Engaging with mental health services; (b) Maintaining sobriety; (c) Demonstrating 6 months of stability; (d) Acting protectively by leaving a relationship with SF which was marked by intimate partner violence; (e) Engaging and maintaining services and supports (including the maternal grandmother; (f) Being more supportive of the father’s parenting time.

[47] Additionally, the father has also addressed the Agency’s concerns by:

(a) Engaging with mental health and supports (including the paternal grandmother); (b) Demonstrating stability and security for the child; (c) There being no protections concerns about the father as of the last order.

[48] According to the Agency, it remains in dispute what level of involvement the paternal grandmother is providing to the father. It is undisputed that the paternal grandmother is a significant source of support and stability to the father. However, the mother maintains the paternal grandmother is the primary caregiver to the child while in the care of the father, whereas the father maintains he is the primary caregiver and the paternal grandmother only provides support as needed.

[49] The Agency called two witnesses, namely Ms. Adriana Martinez who is a worker with FAC Waterloo; and Ms. Danielle Barratt who is a worker with DBCFS.

[50] Ms. Martinez has been working with FACS Waterloo since 2016 and as a protection worker since 2022. She began working with CT in 2023. Ms. Martinez affirmed and adopted the contents of her affidavit dated May 10, 2024 and it was entered as Exhibit 1. Ms. Martinez described her working relationship with the mother and gave some context to her involvement.

[51] Ms. Martinez described CT as kind, transparent, and honest about her situation. She said that CT offered “good communication and would call if anything came up. She always asked questions.” Ms. Martinez described CT’s relationship with her children as a “good loving relationship” She said that CT did not have any negative relationships at the shelter. Instead, CT would ask for help and made friends at the shelter. She offered that the number of different workers made it difficult at times for CT to be forthcoming, but that CT was open with Ms. Martinez. She described CT as engaged while she was the shelter. She attended mom groups and sought counselling. She worked with Healthy Babies Healthy Children. She ensured that the services she sought out were utilized. Ms. Martinez confirmed that they had no concerns about CT’s parenting or about the allegations that she was using meth. [8]

[52] During cross-examination by the father’s counsel Ms. Desai, Ms. Martinez confirmed that there were no concerns with drug use from her observations of CT. She went on to say there were periods of struggle with her mental health, but CT sought out supports and a consistent counsellor and processed her struggles especially with her children’s fathers.

[53] During cross-examination by the mother’s counsel Mr. Severn, Ms Martinez discussed CT’s connection with services and described her as engaged, and good with the people facilitating the groups at the shelter – she was engaged with groups. She said there was some added complexity of different Agencies and workers and this was frustrating for CT. For example, CT didn’t like there being decisions made by Ms. Sarah Batters (another worker) when Ms. Martinez was providing services to CT. Ms. Martinez admitted there were some time delays with responses from the other worker (Sarah Batters) and it interfered with CT implementing or following the direction. She confirmed that the overholding incident in July 2023 was stressful for CT, waiting for answers about when she would see her child again. Ms. Martinez has not had any contact with JC or the paternal grandmother.

[54] In terms of mental health issues with CT, Ms. Martinez does not remember any specific diagnosis – she believes there was anxiety, but not sure. Any medications she was prescribed were stopped when CT found out she was pregnant. Ms. Martinez did not speak with any doctors about CT’s mental health as part of her investigation. With respect to SF, she had contact with him throughout her work with CT. She described him as “not easy to work with. He was difficult to get a hold of. He changed his number twice and worked during the day. She went to see him unannounced twice. He would “always go off on tangents” about CT and she found he was “hard to follow at times.” She confirmed that SF made protection concerns reports about CT, however, they were not verified. Any other protection concerns or referrals were only from SF and prior to that there were police reports about altercations between CT and SF. Ms. Martinez advised that there were no other protection concerns about LCT and/or CT’s younger children or CT’s parenting of the children. FAC Waterloo closed their file because CT moved and SF stopped engaging with her.

[55] Ms. Danielle Barrett has been employed by DBCFS since February 2021. She has been a CPW since June 2021. She has worked on this file and with CT since 2022 and has been the primary worker for the family since November 9, 2023. Ms. Barrett adopted and affirmed her affidavit dated May 10, 2024. [9]

[56] Ms. Barrett’s evidence was not that the paternal grandmother is a “support” to the father during his parenting time. She said that the paternal grandmother “often provides primary care for the child, including taking the child to medical and other appointments in lieu of the Father.” [10] As she has not attended at the father’s home and has not had any direct contact with the father, Ms. Barrett was unable to provide any evidence to support his parenting. She did however state that the paternal grandmother has sent her “several emails expressing concerns about the child’s behaviours” and regarding “faint bruising” and allegations that CT has physically abused the child. All concerns were investigated and all were deemed “unverified.”

[57] Ms. Barrett described the mother was cooperative during the investigations and no concerns between the mother and child were ever observed. [11] She described the child’s bond and attachment with the mother to be “good”. She commented that the support that the mother receives from the maternal grandmother who resides near by in Port Hope is positive and encouraging. [12]

[58] Ms. Barrett explained that she had not had any contact with SF until the trial. Interestingly, the day she was on the stand during the trial was the first time she had contact with SF. This was because the paternal grandmother had sent her photos to demonstrate possible continued romantic involvement and contact between CT and SF that would violate the order of Krause J. dated November 3, 2023 that barred the mother from having the child “in the presence of any adult other than family members.” Ms. Barrett advised that she had contacted SF and that he confirmed there has been no contact with LCT since CT had relocated in November 2023. This is also confirmed in the Statement of Agreed Facts.

[59] Throughout her direct evidence and cross-examination, Ms. Barrett explained that there have been no concerns with the mother’s care of the child or her other children since her relocation to Port Hope in November 2023. Further, during her involvement, CT has not had a problem with substance misuse to her knowledge. CT has provided her with proof of her sobriety with clear drug screens. She said that CT has set up ongoing support wherever she lives and gets herself registered for services. CT only had difficulties with maintaining counselling sessions due to her pregnancy. [13] Ontario Shores counselling was not maintained when CT was getting closer to her birth of youngest child. Following giving birth, however, CT restarted counselling with Michael House.

[60] Ms. Barrett has been inside CT’s residence numerous times, and the children have always presented as clean and well taken care of. The mother has even accommodated Ms. Barrett coming early for her planned visits. Ms. Barrett said that the child LCT was with CT during every home visit, and her overall impression of CT’s parenting has been good. She said she has been present when LCT was tired and/or having a temper tantrum. CT’s parenting was positive and attentive. Ms. Barrett described CT as having a positive relationship between her and LCT and her and the other children. She said she had no concerns about CT’s parenting or about abuse of misuse of substances. When pressed on this during cross-examination, Ms. Barrett explained that as a child protection worker she is trained regarding recognizing substance use. She can assess presentation; and if there are any valid concerns, she can request medical evidence. She has never had to do so with CT. Ms. Barrett and the Agency’s position is that the mother “is an appropriate caregiver and there is insufficient evidence to support further need for supervision.” [14]

[61] The Agency asserts that each parent has positives to offers and bring different strengths to the parenting. I am placing a great deal of weight on the evidence of the Agency. I found their witnesses provided the necessary and relevant evidence for me to find that there is insufficient evidence to support further need for supervision. I find the child is no longer in need of protection and that a deemed custody order is the correct manner of resolving this case.

Evidence of the Mother

[62] The mother does not believe there are any protection concerns for LCT as a result of the parties’ parenting. She seeks an order giving her sole custody of the child and sole decision-making. CT is asking for sole custody because of the conflict and decision-making issues. CT is also proposing a regular access/parenting time schedule for the father. She doesn’t want to take away or reduce the father’s parenting time. However, the problem is about the distance between their residences, the child’s school, and the interference of the paternal grandmother.

[63] It is the mother’s fear that if LCT is placed in the deemed custody of the father, the paternal grandmother will do most of the parenting. Additionally, she asserts that the paternal grandma spends all of her time negatively portraying the mother to the child, the father and any other person that will listen. The mother does not believe that the father would do this by himself. However, since it is the paternal grandmother that is doing the majority of the caregiving during the father’s parenting time, this is not in the best interests of the child. CT asserts that the paternal grandmother has been the only one who has withheld the child from her or refused to return LCT to her care. She has resigned herself to the view that the paternal grandmother will never stop the character assassination. CT has no further protection concerns about the father. However, because of the paternal grandmother, she believes that if LCT resides with the father and paternal grandmother, he will grow up with a negative view of his mother.

[64] CT described how she and the father met when she was living in Toronto in December 2019. They started living together in January 2020 in the paternal grandmother’s residence. She says they left due to conflict between the paternal grandmother and herself and the father. She and the father lived in a hotel for one month, but she had no money to extend the rental and the father did not contribute at all. She said that the paternal grandmother kept “threatening” that she wouldn’t let the father see his first-born child unless he came back. Because they had no money to remain in the hotel, and she felt bad for the father, they decided to go back to the paternal grandmother’s residence. Within a couple of weeks after returning to the paternal grandmother’s residence, the mother found out she was pregnant with LCT. She says they decided to stay for support, however, she kept trying to leave because it wasn’t a “functioning living situation” due to the paternal grandmother’s constant exertion of control. Every time the mother left; she was prompted to come back by a children’s aid society. The mother said she was “scared” of the paternal grandmother and her “constant threats” and “losing her child.” She explained that she had to stay with the paternal grandmother on a Voluntary Service Agreement, but when it was intolerable, she left and went to a mothering house called Shifra House. She says that she stayed there until LCT was of an age that she had to leave and find her own place.

[65] CT went back to live with the father and paternal grandmother at times because they prompted her to do so and she felt she had no other options. CT described the father’s house as “toxic.” She said that the paternal grandmother started fights with her husband, and with JC. She said that the paternal grandmother has controlled JC. She described how the paternal grandmother was “nice to her face but behind her back she was calling her mother and trying to get her to help her take LCT from her.” She said that the paternal grandmother called the police all the time and the police would be frustrated because upon their attendance, they found there was nothing wrong. Despite the conflict, CT never called the police.

[66] Because of the continued controlling and manipulative behavior of the paternal grandmother, CT said that she left again in May, 2021 and applied for Michael House. She stayed in a hotel where she was working for a short while and then went to reside with her previous foster family’s adult daughter until she got into Michael House. She brought LCT with her when she left, however, the paternal grandmother called child services. They wanted CT to sign a Voluntary Service Agreement placing LCT with the paternal grandmother, however, CT refused. This prompted them to take LCT to a “place of safety” and he was placed temporarily in the paternal grandmother’s care. CT says that she “cried for two days” and then she was served with court documents, and she applied for legal aid. On July 16, 2021, she “successfully got LCT back.” This was as a result of the TCCH. The court ordered the child to be placed in the mother’s primary residence at Michael House.

[67] The mother stated that at Michael House she did quite a lot of programs and participated in supported groups focused on counselling and about stages of development and childcare. She said that Michael House was there to “help her be the best mother she could be” and help her “move towards independence” with mothering her child. Two incidents happened while she was at Michael House. She advised that she was required to leave in February 2022 because there was a drug screen that came back as “positive for amphetamines.” She explained that she had cough medicine in her room, and this broke the rules at Michael House. At that time, she asked her doctor, (Dr. Mitchell) to speak on her behalf and in her support to Michael House. Dr. Mitchell wrote a letter dated February 3, 2022 to explain that Benylin decongestant can give a positive result on drug screen, and he supported CT in that she was sober and had not used drugs. [15] Dr. Mitchell wasn’t concerned. Although she had to leave Michael House temporarily, CT was invited to come back after finishing a 10-week program through RAM clinic and having negative drug screens. CT was allowed back into Michael House and continued with the programs and support. She was successful and completed the program in April 2023. In May 2023 she moved into SF’s house.

[68] CT described how there have been many times where the father and paternal grandmother have accused her of harming LCT. They have called the CAS/DBCFS and police numerous times making allegations against CT. Then, father and paternal grandmother usually decide to withhold LCT and they do not return him to the mother’s care. One time they made allegations about “bruises” on LCT’s back. They didn’t talk to CT, instead they called the police and the CAS. They decided to withhold the child and did not return him to her care. CT explained that LCT has old birthmarks on his tailbone, and he had no other marks when he left CT’s care. The police and DBCFS were not concerned.

[69] The mother asserted that LCT is a little boy who gets scratches and bruises all the time. She said that LCT has returned from the father’s parenting time with bruises and scratches, but she doesn’t think it needs to be reported. The paternal grandmother keeps expressing concerns about any mark or scratch on him, forcing the DBCFS to investigate, and they never verify any of the father’s or paternal grandmother’s concerns about the child.

[70] CT also asserted that LCT has given inconsistent reports about hitting and hair pulling. This resulted in the father and paternal grandmother taking things into their own hands again, withholding the child from the mother. The DBCFS did not verify any concerns. Despite this, the father and paternal grandmother say that DBCFS “told them to withhold the child” but that is not true.

[71] The mother described the July 2023 incident when the father and paternal grandmother refused to answer her calls and texts. They withheld LCT from her. Even though she was texting them constantly, they were saying that she “wasn’t responding to their texts.” She verified the text messages in July 2023 about dropping off LCT at the shelter, and they ignored her. [16] She said that following this incident, she had to wait a couple weeks until they brought LCT back to her. They even refused to listen to DBCFS when they told them to bring the child back to the mother. It had to go through a hearing that took place on August 18, 2023. [17]

[72] CT explained that from July 2023 until November, 1 2023 she was living at a shelter. In November 2023, she was able to secure a 3-bedroom apt. in Port Hope near her mother. The apartment is located in an old schoolhouse. It is a walkable distance from the maternal grandmother’s house. CT described there being lots of parks and schools in the area. She confirmed that she has three children in her care, but that LCT is “week on week off”. The other two younger children are in her sole care. She takes the younger children to see SF when LCT is in the father’s care.

[73] During SF’s visits, she stays with the children and supervises his parenting time. She stated that she stays to supervise SF’s parenting time, and she says they get along fine. SF is not alone with the kids at any time. She said that SF hasn’t seen LCT since summer of 2023. She said that she never brings LCT to see SF. She denied that she and SF are in a romantic relationship together. She said, “I am in a coparenting relationship” with SF. We are being civil and working together.

[74] CT gave evidence about the pictures the paternal grandmother had obtained from Facebook and sent to DBCFS. [18] She denied these pictures were proof that she and SF were spending time together with LCT. CT identified each picture in Exhibit 5 and was able to date them and explain the location where they were taken. Some were pictures taken over a year ago in May 2023 when CT and SF were together. [19] Some pictures were taken by CT and she had sent them to SF and then SF posted them. CT’s evidence confirmed what had already become clear to the court during the cross-examination of the paternal grandmother by Mr. Severn. Simply put, the paternal grandmother’s allegations about CT were speculative and are without merit. I found CT’s evidence to be more credible than the father or the paternal grandmother.

[75] Regarding the allegations about CT’s substance misuse, CT said that she stopped using substances in December 2019 which was around the same time as JC. CT provided clear drug screens from February 2023 through to January 2024 which were admitted on consent. [20]

[76] Regarding the paternal grandmother’s allegation that at the end of the relationship between JC and CT, that CT “left drugs (crack cocaine)” accessible to JC’s eldest child, “who could have used it and hurt him.” [21] There was a police occurrence report dated May 4, 2021. All it says is that on May 4, 2021, the complainant (the paternal grandmother) had “attended detachment to turn in small bag of drugs she located at her residence. Drugs believed to belong to her son’s girlfriend (GF). 0.6 grams of suspected crack was seized and sent for destruction. No further action.” [22] CT’s evidence was that she adamantly denied the paternal grandmother’s allegations. The court accepted CT’s evidence and did not give any weight to the paternal grandmother’s allegations or evidence on this issue for a couple of reasons. The paternal grandmother’s allegation was pure speculation. She speculated the substance was “crack” and immediately assumed and speculated it belonged to CT. However, the police never confirmed the substance was in fact an illicit drug at all. Secondly, she speculated that the substance belonged to CT. However, CT had already left the paternal grandmother’s residence (the father was still there). CT wasn’t present at the time the paternal grandmother allegedly found the substance, and she wasn’t present at the police station. In my view, this was just another example of the paternal grandmother trying to collect evidence against CT that fits her negative narrative. This incident made the court concerned about how far the paternal grandmother may go to show CT in a negative light.

[77] The mother gave evidence about the child LCT and described him as a “big sweetheart.” She said that he is generally great with his younger siblings. She said that the delays in his speech are coming along and that she works with him. She explained that LCT is going to speech therapy, and he loves going there. In her view, his speech is more sporadic after his week with the father. She says the first day back from the father’s, LCT’s behaviour can be “pretty rough” (pushing and shoving) as she thinks he has learned some traits from the father’s eldest child. However, CT said that LCT adjusts back at home very well after coming back from the father’s parenting time week.

[78] CT gave evidence about LCT’s daily routine when he is in her care. She described how LCT usually gets up first, “he gets up goes pee and gets into bed” with her. Then, “when all the other kids wake up, we have breakfast and change diapers and go for a walk.” When they get home, she makes lunch and then she gets them ready for a nap. She said that they go to see the maternal grandmother and aunt a lot. She said that LCT loves them. She said they have dinner there most days and then they go home and have a bath and then get ready for bed. CT described how they go to the Early Years Centre on Fridays. She described how the child plays sports at the YMCA (swimming and basketball). CT described how LCT “eats everything. He loves his apples and pears.” She described him as “more of a snacker” and said that he loves his fruit and vegetables, peanut butter and jelly sandwiches, meat, chicken and mashed potatoes and strawberries.” She said that LCT doesn’t love junk food and doesn’t bother with them much, but he loves popsicles.

[79] During cross-examination by Ms. Desai, the mother acknowledged that her relationship with the maternal grandmother was rocky in 2021, “they weren’t talking much.” However, she went on to explain that it was made worse because of the paternal grandmother. The paternal grandmother was trying to get the maternal grandmother to make negative statements against CT. The mother explained that now that they live so close, she and the children see the maternal grandmother every other day. The maternal grandmother helps drive her to appointments for different services or supports, (the mother does not have a drivers license). However, CT made it clear that she is the one who takes the children in to all the appointments. CT is the one who talks to the professionals.

[80] My impression of the mother both during her evidence and the cross-examination was that she has grown up a lot in the past few years. She struck me as mature and very “matter of fact”. She gave her evidence calmly and she answered and responded to the allegations without exaggeration or drama. She showed insight into the challenges that she has faced. As the mother of three young children, she is not afraid to seek out help and supports when needed. She also struck me as quite exhausted with having to defend herself all the time against the father and paternal grandmother’s allegations. I found I was able to rely upon the mother’s evidence and I found her to be credible.

[81] In addition to providing her own oral evidence, the mother called two witnesses. The mother called the maternal grandmother, and Shannon Pharoh who worked with her at Michael House.

[82] The maternal grandmother was called as a witness by the mother. The maternal grandmother was an elementary school teacher for 30 years working with special education. She is retired and is now a trustee for the school board.

[83] The maternal grandmother described how the mother and the children live about 10 min walk away and she sees them about 4-5 times per week. They have family dinners and hangout together. As CT doesn’t drive, the maternal grandmother acknowledged that she drives her to appointments. Her impression of CT’s parenting is that CT ensures that the children are fed, clothed and loved. She ensures they have what they need. She said that CT is “doing her best and she is doing well.” The maternal grandmother said that CT is managing very well with all three of her children and that she is managing her services and supports mostly by herself. She said that CT makes the calls.

[84] To the maternal grandmother’s knowledge, since November 2023 when the mother moved to Port Hope, LCT hasn’t gone anywhere. She explained that CT takes “the little ones” to see SF, but she does not take LCT. She explained that CT takes the younger children to see SF because she supervises the children with SF. The maternal grandmother was able to further corroborate CT’s evidence about the pictures in Exhibit 5.

[85] In cross-examination, the maternal grandmother explained that as a former teacher, she understands her duty to report protection concerns. She has done so in the past and would do so again in the future (even as it relates to CT). In fact, she had concerns about CT’s first child, and she did call CAS. She explained that CT’s first child was legally adopted, however, there is openness that allows the maternal grandmother to have some contact.

[86] Like her daughter, I found the maternal grandmother to be calm and matter of fact. Her evidence was relevant and helpful, and it corroborated the mother’s evidence and the evidence of the Agency.

[87] Shannon Pharoah was also called as a witness for the mother. Ms. Pharoah was employed at Michael House. She explained that CT was a resident in supportive housing at Michael House from July 2021 until February 2022 and again from Sept. 2022 until April 2023. She explained CT had to leave the program in February 2022 based on a program policy and regarding one blood test coming back with amphetamines. Due to the restrictions at Michael House, CT had to leave. However, CT was invited to come back once she completed an addiction treatment program for a ten-week period. After the program she had come back and was offered a unit. The mother was discharged the following April 2023 because she had completed the program. Ms. Pharoah said there were no concerns about CT. She said that CT participated in all program expectations, she “owned what she needed to own. She was a great candidate.” She further stated that there were no parenting concerns about CT. She described CT as “a good mom” who was “attentive, able to pick up on the child’s cues and responded well” to meet his needs. CT kept her area clean. She worked and participated in certain programs for group counselling, parenting group, Impact (overall wellness group). She participated and completed all these programs. Ms. Pharoah explained that she had no contact with the father at all. However, she did have contact with the paternal grandmother once (during a parenting time exchange).

[88] I found Ms. Pharoah’s evidence relevant and helpful, and it further corroborated the mother’s evidence and the evidence of the Agency.

Analysis

[89] This matter came before the court on Status Review of a Protection Application. The primary protection concerns surrounding the file opening with DBCFS were: substance use and mental health concerns for the mother; and parenting capacity and ability to act protectively for the father. Both parents have made progress addressing the protection concerns. The protection concerns regarding the father’s parenting capacity and ability to be protective were addressed prior to the final order of June 6, 2023. The mother has demonstrated considerable progress in addressing the protection concerns since this Status Review Application was initiated. DBCFS no longer has concerns about the mother’s substance use or mental health. The father takes the position that that mother has not sufficiently addressed the protection concerns and that he is the better primary placement for the child; whereas the mother takes the position that she has addressed the protection concerns and she is the better primary placement for the child.

[90] The Agency takes no position on which parent should have primary residence and care of the child. However, this does not mean that it would be in the child’s best interests to continue to reside with each parent on a 50/50 week-about basis even if was possible to do so. The best interests test as found in s. 74 (3) of the CYFSA. As noted above, the child is active, healthy, happy and well bonded with each of his parents, siblings and extended family.

[91] The Agency’s position is that there are no remaining protection concerns about either parent requiring the Agency’s involvement in this proceeding. The mother agrees. In my view, the fact that the father and paternal grandmother do not agree with that assessment does not bode well for their support of the mother’s parenting time with LCT (if he was placed in the father’s deemed custody).

[92] Subparagraphs 74(3) (c) (v) and (vi) of the CYFSA both speak of the importance for the child’s development of a positive relationship with a parent and security as a member of the family; and the importance of maintaining a child’s connection and emotional ties with his or her family and extended family. These best interests criteria are in accordance with the goals of the CYFSA as set out in s. 1 which state that the “least intrusive” course of action should be taken in addressing the best interests of children, and that any assistance to parents by a Society or Agency “should give support to the autonomy and integrity of the family unit”. The primary goal is, if possible, to return children to the care of their parents with whom the child was with at the time of Society intervention and to support them and the child as a family unit. It has already been found that the child was with both parents at the time of the Agency’s intervention. In this case, CT asserts that she wants the child to grow up with a positive view of both his parents. In her view, this will only be possible if he lives with her. I agree. CT is offering the father unlimited, unsupervised parenting time with LCT that would include alternate weekends plus a shared summer week-about schedule and shared holidays. In my view, this is the plan that is in the best interests of the child.

[93] Additionally, ss. 74 (3) (b) (c) of the CYFSA, and the mission of DBCFS and the Act Respecting FNIM is to place children with family first if it is safe to do so and in the child’s best interests. This mission is rooted in the understanding of the integral connection of physical, mental, emotional, and spiritual needs of the children and families they serve.

[94] DBCFS describes itself as a “multi-service Indigenous well-being agency.” They provide a “stable foundation for children, youth, and families, through wraparound services that are culturally based and family-focused, while respecting each community has their own values and beliefs and ways of doing things.” [23] DBCFS is “committed to provide services that are strength-based, optimistic, affirming and empowering for children, youth, families, and communities with participatory decision-making involving families, extended family, Elders, and the community.” [24] Their mission is to ensure that children are placed with family first, and only if the children can no longer remain at home, they will seek community and/or Customary Care (for First Nations families) before all options. [25] In my view, the DBCFS has fulfilled their mission in this matter by supporting the child and both parents in their healing and empowering them to address the protection concerns. They involved the parents’ families, extended family and community to provide services to meet the needs of the child so that the child LCT is no longer in need of protection.

[95] The child is of mixed heritage, (he is Black, Latin and Metis). Despite the statutory findings regarding the child, (specifically, that he is a child of Metis Heritage through the father) no evidence was presented on this issue and/or whether a deemed custody order in favour of the mother would have any negative effect on the child’s connection with the Metis Nation. In my view, as there are no child protection concerns about either parent, a placement of the child in either the mother or the father’s care fulfills the Agency’s mission to place with family first. I find that in lieu of any evidence to the contrary, each parent can equally provide support for the child’s mixed heritage during their parenting time.

[96] The mother has provided primary care to her three children during her week-about arrangement independently since November 2023 without any concerns. The mother’s current home is walking distance away from the home of the maternal grandmother who provides support to the mother. The mother has routinely taken the child for pediatric and dental appointments and vaccinations since birth. The mother has routinely followed up with and engaged with services for her children’s development. The mother has, to the best of her ability given her frequent relocations, ensured continuity of services for the child and their siblings.

[97] I note that throughout all the various changes in the child’s legal placements, LCT has never been placed in the father’s sole or primary care, with or without supervision. Any temporary placement of the child by the Agency in the father’s care was made jointly with the paternal grandmother, or, with a requirement that the father reside with the paternal grandmother. Further, I have found that the evidence that came out in the trial and in the SAF supported the mother’s assertion that the paternal grandmother is the primary caregiver to LCT while in the care of the father. The paternal grandmother has in the past taken the child to medical and other appointments in lieu of the father. During the testimony of the father and the paternal grandmother, I found there were stark discrepancies between them when describing both of the children’s routines, needs, likes and dislikes (food). The father showed a lack of knowledge when questioned about his eldest child and regarding LCT. Whereas the paternal grandmother had detailed answers regarding both children’s care. Further, in my view, it was very telling when the paternal grandmother described how she has the father give her the child tax benefit that he receives so she can use it to buy things for the children. It showed that she is the one that truly has the day-to-day care and control of the child when he is in the care of the father.

[98] Of note to the court is the fact that the father, (enthusiastically supported by the paternal grandmother) has consistently taken a more restrictive or controlling position regarding the mother’s parenting time with the child. In my endorsement dated December 13, 2021, I wrote:

The child is doing well. It appears that both parents have made progress in addressing the Agency's concerns. There are more restrictions on the Mother because of where she is residing with the child and because of the Agency's concerns. However, it is not up to the Father to evaluate the Mother's progress or decide whether or not the Mother requires further supervision.

[99] Despite the above caution to the father, there have been five temporary care (s. 94) hearings in this matter. Four of them involved the father and paternal grandmother attempting to limit or reduce/eliminate the mother’s parenting time. Also concerning to the court is the unfortunate pattern with respect to the s. 94 hearings in this case. Usually, by the date of the hearing, the mother and the Agency have resolved their concerns and are making joint submissions on an agreed upon schedule. However, the father and the paternal grandmother have consistently opposed and/or attempted to reduce or eliminate the mother’s parenting time, resulting in the need for argument of the hearing. This same pattern has continued from the first temporary care hearing all the way to the trial.

[100] The child was briefly placed in the care of the paternal grandmother at the beginning of this litigation as “a place of safety.” The court and the child protection agencies depend upon extended family (very often grandparents) during times of crisis. They are often a valuable resource and provide safety and support for the children at risk of harm or found to be in need of protection. However, despite the fact that the paternal grandmother is not a party to this proceeding, she has involved herself in the matter in such a way that in my view, makes her more of “an “invisible litigant” which is a family member or friend of a family law litigant “who insert themselves into the litigation process. They go beyond providing emotional support during a difficult time to become active participants in the litigation.” (see Leitch v. Novac, 2020 ONCA 257 at para. 44 -45).

[101] In my view, if the child was placed with the father, he would end up losing his relationship with his mother and he would continue to have a childhood that is punctuated by child protection proceedings and police investigations. He would be constantly subjected to the paternal grandmother’s investigations and he would grow up with a very negative view of his mother, which would mean he would not have a positive, meaningful relationship with her. I do not believe that the father and paternal grandmother will cooperate or comply with an order supporting the mother’s access if the child was placed in the deemed custody of the father. In my view, a placement of the child in the deemed custody of the father would not be best for the child’s physical, mental, emotional and spiritual well-being.

[102] In contrast, even though the mother has concerns about the father and paternal grandmother’s care of the child, she does not oppose their having unsupervised access and she does not want to limit LCT’s time with them. When the child comes home from the father’s house with small bruises, scratches or cuts, she does not immediately call child protection services and make negative allegations about the father and paternal grandmother. The mother has shown that despite all the frustrations and negative allegations, she would not imperil LCT’s ability to have a loving, caring relationship with his father. In my view, it is in the best interests of the child to reside in the primary care of the parent that will support and maintain the child’s healthy relationship with the other parent. In my view, that parent is the mother. Despite her historical challenges, CT has made sufficient progress to address the protection concerns and she has grown and shown the insight necessary to support the child’s physical, mental, emotional and spiritual well-being.

Conclusion and Order

[103] For the reasons set out above, I find that a deemed custody order is the correct manner of resolving this case. I further find it is in the best interests of the child for there to be a court order placing the child in the deemed custody and primary residence of the mother CT with regular scheduled access/parenting time to the father JC.

[104] There is one last thought that I wish to share with the parties. Both parents were very young when they had LCT. Neither parent is perfect. They both had challenges with their mental health, misuse of substances, and conflict. They both needed help from their families and other service providers. Despite their challenges, they have made progress with the help of the service providers and the supports of both the maternal and paternal grandparents. Now, it is time to put all the things they have learned to good use, (if not for themselves, then for the sake of LCT).

[105] The parents are now adults who are in control of their own behaviour and decisions. They have many years of co-parenting this young child ahead of them. They have made some poor decisions in the past. Instead of cooperating and moving forward in their lives, those decisions have led them down the path to a trial. However, the future does not have to continue in this way. It does not have to be marked by lack of cooperation and chronic chaos and conflict. I do not expect the parties to agree with every term in the order that I have made or the reasons I have given for making it. However, I will expect that they follow it. I advise them to stop looking to blame each other for what has brought them to this place. Both parties contributed to the child protections concerns that arose, and both parties addressed the child protection concerns. Neither parent is the exact same person as they were back in 2021 (when this matter was commenced). It is time for them all to move forward and continue the progress they have made. This matter came to trial because they could not agree on the final outcome. Now that they have my decision, this is their chance to make more progress in the best interests of the child by following the order and bettering themselves and their situations. This will give each party, and more importantly, give the child some peace and well-needed respite from the chronic chaos and conflict.

[106] For the reasons set out above, final order to go:

1. The child LCT, born October 12th, 2020 is placed in the sole care and custody of CT, pursuant to a CYFSA s. 102 deemed parenting order under section 28 of the Children’s Law Reform Act.
2. Major decisions for LCT shall be made by the mother CT.
3. The mother CT shall have the ability to enrol and register LCT with all professionals including but not limited to his school, doctors, counselors, therapists, and any other professional as deemed necessary by the mother.
4. The mother shall: (a) Provide the father, JC, with the names and contact information of the medical professionals, dentist, and other professionals involved with the child. If this information changes, she shall advise the father promptly. (b) Provide the father with reasonable notice of upcoming medical and dental appointments for the child. The other parent shall be permitted to attend. The mother shall fully advise the father promptly with any updates immediately following the appointment or shortly thereafter.
5. Both parents shall have access to information about the child directly from third parties, including medical staff and educational staff, in accordance with section 20(5) of the Children’s Law Reform Act. If a parent experiences difficulty obtaining such information, if requested, the other parent shall provide written direction to those professionals to provide information about the child to the other.
6. The father JC shall have access to LCT every other weekend, from Friday at 5:30pm to Sunday at 5:30pm.
7. The father shall provide transportation for LCT to and from all of his access visits, in lieu of child support.
8. During all exchanges: a. Exchanges shall take place on Fridays and Sundays at 5:30 pm or such other time as agreed between the parties in writing and the parents shall be flexible and reasonable with each other in the event the other parent is late. b. Shall be organized as between the parents or their delegate and may include one (1) third party of their choosing. c. If a parent will not be attending for pick up or drop off, that parent shall provide notice to the other parent by text of who will be attending in their stead. d. Both parents shall make every effort to be positive on exchanges and to model respectful behaviour for the child. e. The parties shall not serve one another with court papers or arrange for the other party to be served during any exchange of the child.
9. Both parties shall keep each other up to date and informed of their residential address and telephone numbers and email. They shall immediately inform each other of any changes in same.
10. Parties shall share holidays as follows: (a) Summer vacation: LCT shall spend equal time with each parent on a “week-about” schedule with exchanges occurring on Sundays at 5:30 p.m. The week-about schedule shall commence on the first Sunday after school ends. The father shall have the first week and the mother shall have the second week and so on. (b) Christmas- The school Christmas break shall be shared equally. In even numbered years commencing in 2024, the father shall have LCT for the first week of the holidays and the mother shall have LCT for the second week of the holidays. In odd numbered years commencing in 2025, the mother shall have LCT for the first week of the holidays and the father shall have LCT for the second week of the holidays. (c) Easter and Thanksgiving- to follow the regular every other weekend schedule. If LCT is with the father on Easter or Thanksgiving, drop off to mother shall be Sunday at noon. (d) Mothers and Fathers Day shall be spent by LCT with the relevant parent, switching visitation weekend if needed. Regular pick up and drop off Friday at 5:30 and Sunday at 5:30. (Earlier drop off if more convenient for them). (e) March break shall be shared equally with LCT spending half of the week with the father and half the week with the mother. The exchange shall be on Wednesday at 5:30 pm.
11. Both parents shall refrain from using any alcohol or non-prescription drugs during or 12 hours prior to their parenting time.
12. LCT’s birth certificate, health card, passport, and social insurance card (if any) shall remain with the mother. The father shall be given copies of each.
13. The parties shall support the child to have regular and reasonable ongoing communication with the other parent during their respective parenting time by virtual means or telephone.
14. The frequency and duration of the virtual or telephone parenting time shall be a maximum of three times per week, provided it does not interfere with the normal operations of the respective household or the child’s activity schedule.
15. Any changes to the above-mentioned parenting time schedule can be made with the approval of both parties in writing (text or email shall suffice).
16. All communication between the parties shall be strictly child focused. The parties shall keep their communication with each other focused on the child and their needs.
17. The parents shall text or telephone one another immediately in the event of an emergency affecting the child.
18. The parties shall refrain from making disparaging remarks or otherwise speaking poorly of the other parent and his/her extended family members to the child or in front of the child, and/or in any kind of social media.
19. Neither party shall engage in any threatening or harassing behaviour towards the other or their families.
20. Neither party shall engage the other or their families in any kind of social media.
21. The Mother shall continue to reside in close proximity to the maternal grandmother, KT in Port Hope. The Father shall continue to reside in close proximity to the paternal grandmother BC in Stayner.
22. Should either parent wish to relocate with the child more than 20 km outside the above-named communities, they shall provide a minimum of two months’ notice of their intent to relocate to the other parent who shall provide or decline their consent within 14 days.
23. Should the other parent not consent, the parent wishing to relocate with the child shall inform their local society or agency so a safety assessment may be conducted. Neither parent shall unreasonably withhold their consent to the other parent.
24. Should either parent wish to permit any non-family adult to reside in the home with the child, they shall provide a minimum of two months’ notice of their intent to the other parent. They shall further provide a minimum of two months notice of their intent to their local society or agency so a safety assessment may be conducted.

Jain J. Date: August 12, 2024