Brant Family and Children's Services (cob Children's Aid Society of Brant) v AA, [2020] OJ No 5073
Issue:
Should the grandparents have temporary care and custody of the child given the circumstances.
Rule:
Child, Youth and Family Services Act, 2017 SO, c 14, Sch. 1, Part IV s 74(2)
Child, Youth and Family Services Act, 2017 SO, c 14, Sch. 1, Part V s 75
“Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 74(2)
Assessment:
The judge determined that during the time in which the protection application began that the child was in the charge of the grandparents.
The judge then examines the facts against the test set out in section 94(2) of the Child, Youth, and Family Services Act. They determine that:
The grandparents had charge at the commencement of the protection application and as such unless there was significant evidence showing why the grandparents would fail to protect or provide for the needs of the child that the judge is required to return the child to them.
The judge states that there are no protection concerns regarding the grandparent's ability to caretake.
The legislation states that you cannot remove a child from the individual who has charge over them unless you can show significant protection concerns.
The judge states that they are precluded from considering the child’s views and opinions due to the stage at which the dispute lay.
The judge finally reiterates that due to the grandparents having charge over the child, an inability to remove the child from the grandparents and the lack of protection concerns posed by the grandparents that the judge must order the Child remain with the grandparents.
Conclusion:
Due to the grandparents having charge over the child and their acting responsibly and in the best interests of the child, both before society intervention and after, a temporary order for care and custody was made in their favour.
Dnaagdawenmag Binnoojiiyag Child and Family Services v AD, [2020] OJ No 3089
Issue:
Should the maternal grandmother’s motion be added as a respondent to the proceedings and to have the children returned to her care under s. 94 of the CYFSA be granted?
Rule:
“The following are parties to a proceeding under this Part:
The child’s parent.”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 79(1)3
“In this Part, “parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:
An individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 74(1)7
“Where notice is given under subsection (1), the agreement terminates on the expiry of five days, or such longer period not exceeding 21 days as the agreement specifies, after the day on which every other party has actually received the notice.”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 76(2)
“A person starting a case shall name,
as an applicant, every person who makes a claim;
as a respondent,
every person against whom a claim is made, and
every other person who should be a party to enable the court to decide all the issues in the case.”
FAMILY LAW RULES, O Reg 114/99, r 7(3)
“28 In deciding H.(S.), Campbell J. identified five factors to be taken into account as to whether a person should be added as a party to a child protection case:
Would this person's addition as a party serve the child's best interests?
Would this person's addition as a party delay or prolong proceedings unduly?
Is this person's addition as a party necessary to determine the issues?
Is this person capable of putting forward a plan that is in the child's best interests?
Does this person have a legal interest in the case?
29 In Children's Aid Society of Toronto v. C.K., 2013 ONCJ 342, Sherr J. suggested three additional factors:
Whether the person who is proposed as a party can provide a meaningful plan of care for the children;
The fact that the party may be a witness or have evidence useful to the resolution of the issues is not a valid basis on its own to name the individual as a party;
The potential success of the plan of care is not a basis for not naming the person as a party; the only issue is whether the plan "merits consideration" in naming the person as a party.”
Dnaagdawenmag Binnoojiiyag Child and Family Services v AD, [2020] OJ No 3089 s 28,29
“(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 74(2)
“4 The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).”
“5 Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 74(4,5)
“For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 74(10)
Assessment:
The Judge began by determining if the maternal grandmother should have been added as a respondent to the proceedings. In order to do this, the judge examined first whether the grandmother, via legislation, was considered a parent. Due to the terms of a voluntary service agreement created between the parties, it was decided by the judge that the grandmother qualified as a parent under s. 74(1) of the CYFSA and as such the society were required under s. 79(1) of the CYFSA to name the maternal grandmother as a respondent to the proceedings. The society argued that they were not required to name the grandmother as a respondent due to them cancelling the VSA prior to commencing the application to extend society care. The judge countered by stating that s. 76(2) of the CYFSA requires at least five days to pass from the time notice is received to the time that the agreement actually expires. The society had attempted to circumvent this legislation by retro-dating their letter 5 days prior to it being sent. However, the judge stated that there is no statutory power that allows them to retro-date a letter and to ignore the statutory provisions on notice. Therefore, it was determined that the Society should have added the maternal grandmother as a respondent to the proceedings and allowed her to make her application under s. 94 of the CYFSA.
The judge continues however, stating that even without examining the maternal grandmother's standing at the time of application, she should have been added as a respondent to the proceedings. When examining the grandmother against criteria provided by Children's Aid Society of London and Middlesex v SH, [2002] OJ No 4491 and by Children's Aid Society of Toronto v CK, [2013] OJ No 2917 the judge still believed her to be eligible to be a respondent. The society argued that the maternal grandmother failed on all the factors precluding her from being a respondent. The judge disagreed. They were not satisfied that the society was able to show substantial evidence for why the grandmother should be excluded from consideration. The judge finishes his examination of whether the grandmother should have been a respondent by stating, “there can be little doubt that it is in the best interests of the children that an involved caregiver be given an opportunity to provide a plan of care, to call evidence and to advocate for her position in these proceedings. None of these are possible for a non-party and Dnaagdawenmag has not explained why this would not be in the best interests of the children.” Dnaagdawenmag Binnoojiiyag Child and Family Services v AD, [2020] OJ No 3089 s 36.
When examining the issue of temporary care and custody, the judge determined that they were statutorily required to return the children to the person who had charge of them prior to society intervention unless there is reasonable ground to believe there is a risk of the child being harmed. Since the notice of the cancelled VSA had been handled improperly prior to the application being commenced, the grandmother still had charge over the children along with her daughter. That being established, the judge only needed to determine if there was a risk of harm to the children if they were returned to either. The mother admitted that she was not in a position to provide care for her children whereas the grandmother was. The judge did not believe there was significant risk of harm posed to the children if they were to be returned to the maternal grandmother provided she cooperated with certain supervision requirements.
Conclusion:
The maternal grandmother was able to be named as a respondent due to the terms outlined in the voluntary service agreement created between the parties, as well as the society's inability to demonstrate why the grandmother should not be. The maternal grandmother was granted a temporary order for care and custody subject to supervision due to her history of providing a stable environment for the children and a lack of evidence to convince the judge she posed a safety risk that could not be managed through supervision.
Dnaagdawenmag Binnoojiiyag Child and Family Services v BRP, [2020] OJ No 1380
Issue:
Has the society shown that a reasonable perception of risks exists if the child is placed with its mother and this risk cannot be mitigated by a supervision order?
If there is a risk of harm, is it in the best interests of the child to place it with its maternal grandfather?
What terms for access are appropriate given COVID-19?
Rule:
“Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child:
be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 94(2)c
“4 The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 74(4)
“5 Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 74(5)
Assessment:
The Judge found that the society was able to sufficiently establish that the mother was unable to provide care for her child and that a potential for harm continued to exist that could adversely affect the child. This was clear due to trauma the child had suffered, their young age, and admitted issues the mother had. Additionally, due to the ongoing COVID-19 pandemic, the court deemed it unrealistic to believe that the child could be protected by an observation or supervision order and resultantly decided there was no way for the mother to have temporary custody and access.
The judge decided it would be in the best interests of the child to remain with her maternal grandfather. This is due to the grandfather's ongoing ability to provide for the needs of the child, the stable environment he provides, and the judges belief that changing the child's housing arrangements during the current times would not be in the best interests of the child unless there were sufficient plans and supports in place. The courts also determined that due to the ongoing COVID-19 crisis, it would be impossible to set up regular face-to-face access during the pandemic due to the health concerns and possibility of community spread if the two households visit too often.
Conclusion:
The grandfather was granted temporary care and custody due to his ongoing ability to provide for the child, and concerns about the safety of the child with her mother during the COVID-19 pandemic.
The mother was granted electronic access at the society's discretion with face-to-face access feasibility being examined by the society on a regular basis.
Children's Aid Society of the District of Thunder Bay v CF, [2020] OJ No 3260
Issue:
Should the existing temporary care order be varied?
Rule:
“Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 74(2)
“5 Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.”
Child, Youth and Family Services Act, 2017 SO, c 14 Sched. 1 s 74(5)
Assessment:
The Judge began their decision by stating that the Children's views, although expressed, were not determinative of the case. The Children did not have the capacity to make a determination on what would be best for them.
The Judge states instead the thing that they must focus the most upon is the best interests of the child. The judge determined that because of the long-standing relationships the Children shared with their maternal grandmother as their primary caretaker, the lack of substantiation to the fathers claims that she had inadequately cared for the children, that it was in the best interests of the children to remain with her. The judge stated that while they believed the father’s household would also be a good option, as shown through his and his parents’ care of the children during the initial stages of the COVID-19 pandemic, that they were unwilling to uproot the children from their stable environment and their longest relationship with a stable caretaker.
Conclusion:
A new motion for temporary care and custody was granted for the maternal grandmother due to her ongoing positive relationship with the children and the judge's unwillingness to gamble on whether moving the children to their father would be better in the long run.
.png)
No comments:
Post a Comment