CAS/FACS CASE SUMMARIES

 CAS/FACS CASE SUMMARIES

 

 

1. Brant Family and Children's Services (c.o.b. Children's Aid Society of Brant) v. A.A.

Ontario Judgments

Ontario Court of Justice

A.D. Hilliard J. Heard: November 2, 2020.

Judgment: November 20, 2020.

Brantford Court File No.: C 78/20

 

[2020] O.J. No. 5073  |  2020 ONCJ 535

Between Brant Family and Children's Services o/a the Children's Aid Society of Brant, Applicant, and A.A., M.J., D.A., B.A., Respondents

Purpose:

 This is a hearing under s. 94 of the Child Youth and Family Service Act (CYFSA) to determine the placement of the child, N.J-A., during the period of adjournment, or more commonly known as a temporary care hearing.

 

Facts:

 In May 2019, a Kinship Services Agreement (KSA) was entered into between the Society, the Respondent mother, and the maternal grandparents. The Respondent father was not a signatory to the agreement nor was he given notice about the agreement prior to its execution. The KSA places the child in the care of the maternal grandparents given concerns about the Respondent mother's illicit substance use. The KSA was of limited duration and was renewed twice by agreement, with the final KSA expiring in May 2020.

Issue(s):

 There was a preliminary issue to be determined on this hearing that was raised indirectly by the Respondent father during argument: what is the effect of the kinship services agreement entered into by the Respondent mother and the Respondent grandparents prior to the Society bringing this protection application? The determination of this initial issue has a direct bearing on the test to be applied under s. 94(2).

 The Respondent father raised the issue of him not being advised of the KSA being entered into, and not being given the opportunity to be the alternate caregiver for the child, as a breach of procedural fairness.

Law/Analysis:

 Counsel for all parties argue that the Respondent mother is the individual who has "preferential treatment" under s. 94(2)(a) of the CYFSA. As the Respondent mother conceded that she is not in a position to seek the return of the child to her care, the analysis to be conducted falls under s. 94(2)(c) which involves a best interest determining to assess the competing claims of the Respondent father and the Respondent grandparents.

 The Society submits that the KSA is akin to a safety plan rather than an intervention such as a temporary care agreement under s. 75.

Statutes, Regulations and Rules Cited:

Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1, Part IV, Part V, s. 74(2), s. 75, s. 94, s. 94(2), s. 94(2)(a), s. 94(2)(c)

Children's Law Reform Act, R.S.O. 1990, c. C.12

 Conclusion:

 HELD: Application allowed.

In addition, the Respondent grandparents had been acting protectively and were a placement of safety for the child. They worked cooperatively with the Society both prior to and after formal intervention by way of this protection application. There is no evidence to suggest that this cooperation will not continue.

The child, N.J-A, shall remain in the temporary care and custody of the Respondent grandparents with access to the Respondent parents.

 

2. Children’s Aid Society of Sudbury and Maintoulin v PS, 1992 ONCJ 7220.

 

Purpose:

Concerning the children of Mr. RS and Mrs. PS, SS and MS. The Society first became involved with this family in January of 1991, at that time they wanted to remove the children from their parents and have them placed with their paternal grandparents. This was due to the need for RS and PS to work on marital issues as well as addressing alcohol and drug abuse. 

Facts:
This application was brought forth on the 24th of January 1991. Due to problems, the application was altered on February 28, 1991 to have the children placed with their mother for a period of six- months, supervised. In compliance with reconciliation between the parents, the matter was returned to court in June of that year so that the children may be returned to both parents.

Issue(s):
However, when reconciliation failed, the Society sought to have the children placed once again with their mother alone. In September of 1991, following an application by RS, he was granted supervised access with the children at Society offices on an interim basis.

In regard to their short-lived reconciliation that would have seen the children returned to the parents, it deteriorated following an incident where RS threatened PS with a knife. Subsequently she fled the home and injured herself in the process. Thus, on August 23, 1991, the Society sought to have the children placed with the mother alone for six months.

During the hearing, evidence came out from two female witnesses, SC and SL, that RS had had a relationship within the summer of 1991. The evidence consisted of information that RS had used cocaine five to six times, as well as indulging in frequent drinking. In lieu of this, SL confirmed that she had in fact perjured herself in earlier testimony on behalf of RS. She stated that he had threatened to call the Society and have her children taken away if she didn’t testify otherwise. Her revised testimony being that RS was an excessive drinker.

 

After attacking the credibility of these witnesses, RS called a counselor from Pinegate Addiction Centre to his defence. The counselor, Richard Audette, explained RS had completed a 21-day alcohol program and had been free of cocaine use at least up until the trial. Society workers on the other hand were not convinced and believed RS relatively unchanged. This followed expert witness on behalf of PS, from a Ms. Bowes-Chezzi. She relayed that PS held many symptoms common with battered wife syndrome and spousal abuse and would need much more counseling.

Conclusion:
Following the hearing, the children were placed with PS, provided she attend counseling. And the visits with RS were subsequently diminished to once every two weeks under general supervision for six months. This lumped in with conditions that RS not use alcohol or other drugs and attend counseling.

 

3. Children’s Aid Society of the District of Sudbury and Manitoulin v CB, 2003 ONSC 2043.

 

Purpose:
A motion by the Society to have a child remain in their care, following an appeal that had previously granted custody of the child to the mother. 

Facts:
The mother had regular access with the child following its apprehension by the Society at birth. The move to remove the child from the care of the mother was based largely on her past history. The mother had been heavily involved with drugs and alcohol abuse, was diagnosed with attention deficit disorder and previously lived on the streets. Furthermore, the mother had previously given up her first child as a Crown Ward in 2002.

Issue(s):
It was found that in 2003, the mother had ceased her drug and alcohol abuse, had her own living accommodations, had ended an abusive relationship and had been attending pre-natal classes as well as counseling, in regard to the forthcoming child. The Society, however, held that the initial decision by the Judge that the mother was fit, and the child would be safe, was poorly conceived. Thus, the Society submitted their motion that the judge erred in this case. The Society alleged that the Judge had failed to apply the relevant legal test at the hearing, lacked consideration for the physical well-being of the child and simply that the child should not be placed with the mother.

 Law/Analysis:
The Society’s appeal grounds were found to not establish a case in its favour. As well,  the Judge applied all necessary tests and law correctly. In addition, the supervision clauses attached to the Order would mitigate vast amounts of harm. As well, the mother had changed drastically from her original situation. It was found during the section 51 hearing that the mother wanted to parent the child, was breastfeeding, and had not missed any access visits. The mother was in counseling and had her home clean and in order to accommodate the child. 

In light of these changes and conditions, it was determined that fostering a bond with the mother was in the best interests of the child, and that no significant risks were present that outweighed or presented any concerns regarding the overall safety of the child. It was deemed that the mother and child should be spending more time together to further foster their relationship and bond. This process should not be delayed any further and should not be discouraged by the Society. 

Conclusion:
This, all-in light of the fact that the Society’s initial Order involved a three-month wardship, to be completed, provided the mother showed substantial progress and was emotionally and mentally stable. The progress undergone by the mother met these criteria. As well as the supervision clauses, resulted in adequate risk management, deemed by the initial trial Judge. Thus, the Society motion was dismissed.

  

4. Children’s Aid Society for the Districts of Sudbury and Manitoulin v KT, 1995 ONCJ 10077.

 

Purpose:
This case concerns a status review application by the Children’s Aid Society of a child, TNT. The CAS were requesting Crown Ward status for TNT, born May 10, 1993. Primarily however, the Society sought to have the child placed permanently with their maternal grandparents. 

Facts:
The mother, KT, was an admitted drug addict, with questionable parenting abilities. Thus, the Society became acquainted with the child quickly following their birth. Precisely a few months following the child’s birth, the Society apprehended the child and subsequently obtained a Protection Order. 

Following this incident, there were several following occurrences of the child being released and re-apprehended by the Society. These recurrences were largely due to the mothers’ frequent relapses and following treatment. 

Eventually, the Society placed the child in the care of the maternal grandparents. KT would continue on with treatment with the intention that she would eventually obtain custody of her child, TNT.

 There were some positive alterations by the end of 1994. The father, a drug dealer and user, had recently begun to show interest in the child. The father subsequently upgraded his education and was taking advantage of access visits. The mother,  KT, also recently graduated from a successful treatment plan. It was at this point that the Society aimed and sought to end their involvement. This included having the child permanently placed with the maternal grandparents.

It was deemed that the Society ending involvement with the child would be premature. This, in light of the father’s only relatively recent interest in his son, as well as the mother not being completely free of the substance abuse issues, as she had relapsed most recently in December of 1994. Not only that, but the mother was once again pregnant. This factored into the consideration of her being able to reasonably care for TNT, seeing the stress that the prospective twins would bring. The parents themselves also needed to continue to stay drug-free and to prove that they could continue to do so. It was also found that despite the grandparents doing a relatively good job with the child, TNT, that they lacked the necessary objective oversight, and thus needed to have the Society continue as a mode of supervision. 

Conclusion:
It was thus deemed to be the least restrictive option and to be in the best interests of the child to have him remain with the grandparents and continue under supervision of the Society. The overarching decision would be to have the Society maintain supervisors for another six months, while the child remained with the grandparents. The child was still deemed to be in need of protection for the time being. This not being a decision stating that KT may not have recovered in the time frame; however, that the circumstances currently pointed to their still needing to be a vast amount of work undertaken.

 

5. ) Children’s Aid Society of the Districts of Sudbury and Manitoulin v TS, 2009 ONCJ 70.

 

Purpose:
Crown wardship with no access is being requested for these two children.

Facts:
At the outset of the case, the two children, now ages 4 and 2, had been in Society care for two years and three months. The youngest child in particular had been in Society care since birth, on April 4, 2008. 

The children were apprehended in 2006 following several supervision orders since 2005. 

It was also made clear that the major risk factor at hand was the threat of domestic violence. The mother, having dealt with several of the parenting deficit concerns and substance abuse issues. The Society made it clear that if the father was no longer a part of the relationship, and if that could be quantified, then the children would be returned to the mother’s care.

Issue(s):
There was a long history of assaults involving the mother and father between January 2005 and December of 2007. This is in conjunction with the father’s probation officer witnessing an interaction between the father and mother at a bus stop. This interaction constituted a breach on a No Contact Order. The officer was also strongly of the opinion that there were likely several occurrences of these breaches that they were likely unaware of. Secondary to this was an incident in June of 2008 where the mother missed an access visit and failed to inform.

When the Society worker eventually met with the mother, and due to a proximity concern of the location of the father, it was likely that the mother and father had met in the window that the access visit was to take place. All of this coincided with a black eye the mother was witnessed to have. There were also breaches involving the mother meeting the father for alcoholic’s anonymous meetings.

 

At the current point in time,the mother promised to keep the children in terms with the Society Order and to abstain from all contact with the father. The concern noted by the Judge would be if it was reasonable to assume the mother would abide by these conditions. The previous statements by the mother, along with her own sentiments that she desires reconciliation with the father are directly contradictory with these statements. It was decided it would be likely, that if the father presents himself, especially in the circumstances that he is sober, that the mother would likely show complacency. She has also been noted to lie to the Society about interactions with the father, which would present further problems. 

It was deemed that the mother would be in need of therapy and counseling, potentially a stronger form than initially prescribed. There was a complexity and depth to the trauma of the mother that was further discovered in terms of PTSD and intergeneration impacts, this along with known instances of sexual abuse, it would appear the mother was in dire need of further counselling.

Conclusion:
Thus, the Society stated they did not have the necessary resources to monitor such a high-risk situation. Despite the mother undergoing therapy and further counseling,there was no indication that any implementations had been made in her life and that she intended to keep those changes consistent. The Society stated that they could not mitigate the risk of domestic assault, especially considering the complacency regarding the No Contact Order with the father. 

A No Access Order was rendered.

6.) Children’s Aid Society of Toronto v DS, 2009 OJ No 4605.

 

Purpose:
The motion involved an appeal by the mother in regard to her child. A judge had previously made a decision that the child was to be made a Crown ward with no access following a summary judgement motion. 

Facts:

Previously, the child had been apprehended by the Society at birth, and had been available for access visits. With the appeal, some new evidence was admitted. In conjunction with this, the mother alleged that the trial Judge erred by allowing conflicting evidence, making no connection to the mother’s drugs use and parenting abilities and by focusing on the length of time the child had been in Society care. 

Conclusion:
It was decided in the appeal that the Judge had made no errors regarding their application of law. There was also no dispute involving the mother’s use of cocaine and crack. It was also held that the Judge considered on a balance the possible outcomes, especially given the drug test in relation to the mother. It was also held that the Judge was correct in using the time for the child being in Society care as a deciding factor. This being relevant due to a lack of options remaining for disposition. 

Despite the mother’s drug tests indicating negative results, the father had up to that point ,not handed over any drug tests, so he was viewed a relative unknown. In lieu of this, the new evidence admitted actually showed that the mother had been using drugs past the point she had initially indicated in her submissions. It was also noted that the mother’s own plan of care indicated that her drug use prevented her from properly caring for her children, thus her initial conundrum involving the Judge was not thought favourably. The appeal was dismissed due to the Judge deeming that the trial Judge had correctly considered all options and applied the law correctly. 

Further to this, it was also noted that the time in Society care is always a relevant metric when considering if the child is to be placed in extended care. The motions judge was also seen to be sensitive to parent’s efforts of change and address issues as opposed to the mother’s assertations. Much of the mother’s points failed to consider that the primary vehicle for considering these outcomes was in fact the best interests of the child and not the efforts or positions of the parents.

7.) Children’s Aid Society of Toronto v O.C, 2012 ONCJ 213.

Purpose:
Regarding a motion for summary judgment, seeking Crown wardship with intention resulting in adoption. 

Facts:

The motion concerns two children, EO and AO, and their parents MS, and CO. The parents in this case request that the children be returned to their care, that motion be dismissed and that there be a full trial. 

The children were first taken into Society care in March of 2010, and first found to be in need of protection in July of 2010. By July of 2010, the children had been in continuous Society care for 24 months. 

Issue(s):
Both children were also diagnosed with special needs. Along with all these concerns, the parents have consistently been lackadaisical with their commitments regarding access. It is noted that between March 2010-2012, that they attended access sporadically, sometimes even canceling visits outright. Secondly, there were even recorded moments where the parents expressed a sentiment of wishing to fully terminate access with the children. At other times the parents would express a want to care for the children. The father, MS, was even arrested in January of 2012 and unable to continue access for some time. The mother, CO, also alleged that her life situation had changed, and the children could and should be returned to her care. 

In opposition to this, the Society presented that all the above indicated a pattern of both parents failing to attend to and care for the children and that they were unable to commit to caring for them. Thus, the motion by the Society was allowed.

Legal Analysis:
All evidence provided for genuine concern as to the commitments of the parents and if they could adequately parent on a long-term basis. S. 70 of the applicable Act also laid-out that due to the time of care, with the children already being at 24 months, that it precluded a further time of Society wardship. 

Conclusion:
It was determined that for the best interests of the children, they required a stable and permanent environment in which to grow. Returning them to the care of either or both parents would be counter intuitive to this decision. The children would be unsafe and be exposed to a risk greater than necessary to their well-being. Thus, wardship leading to adoption was determined to be the best route for the children. 

In determining the issue of access, the Judge deduced that parents had not presented any evidence that would indicate that their relationship with the children was at all meaningful or beneficial. In addition, the parents’ multitude of missed visits and general misgivings were also taken into ill context. Thus, resulting in the order for wardship with no access.

 

8.) Children’s Aid Society (Ottawa) v A.F

Facts:
In the case of the Children’s Aid Society (Ottawa) v A.F, the facts are as follows. The father and mother have two biological children M. and C. The father has four children from a previous relationship. Between 2005-2013, there were ten openings relating to the family. Child protection proceedings were commenced in March of 2015 after both parents were charged criminally. Later in July of 2017, Justice Roger found after a 26-day trial that M. and C. were at risk of physical harm and in need of protection. He found that the children could be adequately protected on a 12-month supervision order. The Court also found that separating the mother and the father would reduce the risk of harm. 

In his reasons, Justice Roger made his decision based on the following findings: there was no finding of physical harm to M. or C., the parents looked after the needs of M. and C., the mother regularly attended pre-natal appointments and she regularly had her children attend the doctors, the home was well-kept and clean, the mother took courses and regularly attended supervised access. During these visits, she was affectionate and appropriate towards the children. The mother had shown a reasonable ability to follow conditions and work cooperatively with the Society. In addition, the Justice also ordered that the mother and children participate in a parenting capacity assessment by the Family Court Clinic of the Royal Ottawa Hospital to occur within the first 5 months.

Issue(s):
The children were returned to the mother’s care in August of 2017. The Family Court Clinic delivered a report in January of 2018. The assessor found that the assessment of the mother was limited, due to the invalidated psychological testing where she presented herself in an angelic light. Further, the mother showed signs of cluster B personality disorder with dependency traits. The assessor was pessimistic in regards to the mother’s ability to provide for her children over time. These concerns included the fathers return from prison. The assessor recommended a further supervision order with clauses requiring the mother to remain in counseling and he also recommended that she engage in a circle of serenity at the children’s hospital. 

After the release of the report, the child protection worker met with the mother to address the three following concerns: the mother had not had an opportunity to develop a strong relationship with C. as he was brought to a place of safety as an infant and returned to the mother when he was three years of age, the Society worried about a lack of strong attachment between the mother and C,  and the mother had not had the opportunity to parent both C. and M. on a full-time basis; she might struggle to manage the children’s behaviour, and that M. might act out when frustrated or upset and that she might harm others or her brother. 

Later that year in March of 2018 after a lengthy criminal trial, the father was found guilty of 10 offenses against the other children and was sentenced to 4 years of incarceration. The mother was then found guilty of unlawful confinement, assault and criminal negligence with respect to one child. She received an 18-month conditional sentence followed by two years’ probation. In July of 2018 the Society launched a status review application to request for further supervision. However, at a settlement conference, the society agreed to terminate its involvement. The condition was the supervision order was to be terminated but a voluntary services agreement was to be put in place.

 Later in September of 2018, the mother overdosed on cocaine at the home. Police were dispatched and paramedics also arrived on scene. Upon arrival, the police observed that the children were present on scene and visibly upset. The mother was then transported and the children were left in the care of Mr. R.. The mother was discharged the following day. The following day a Child Protection worker attended the home unannounced to check on the children. The mother advised the worker of the following: the children stayed home that day due to illness and spent the day with the mother and Mr. R.. 

The plan was for the children to sleep over at a neighbour’s home, the mother had $20 worth of cocaine delivered to her home, the mother admitted taking the cocaine and feeling sick. She then passed out, remembers paramedics attending to her, but does not have much of a recollection until waking up in the hospital. The mother was tearful and remorseful and she admitted using the cocaine due to stress. The mother told the worker that she would do anything to keep the children in her care. She introduced a neighbour who would do sobriety check-ins three times on September 22, and four times every day after that. In addition, the mother also identified two friends who could do check-ins. The mother also agreed to do drug screens. 

On September 22, 2018, the mother indicated that she ended her relationship with Mr. R.. 

The children were then taken to safety on September 25, 2018.

 

 

Legal Analysis:
Based on the previous facts, the following decision was made. Council for the children submitted that the children wish to live with their mother and that they should return to their mother’s care because it's in their best interests. The children have stayed consistent in their decision since they were brought into the Society’s care. The CPW worker also contested this statement. 

Conclusion:
The Justice in this matter found that the children can be adequately protected by a Supervision Order and be placed in the temporary care and control of the mother with the following conditions: the mother shall not reside with Mr. R., the father of M. and C. and shall not have any contact or communication with the father; the mother shall immediately notify the Society of any contact or attempt at contact by the father; the mother is not to allow any communication between the father with M. and/or C.; the mother shall not have any contact or communication with the stepchildren; the mother shall not reside with any person until approved by the Society or a Court Order; the mother shall not introduce any partners to the children without prior consultation and approval by the Society; the mother shall cooperate with the Society; the mother shall allow the society to attended her home on both an announced and unannounced basis; the mother shall allow the Society private access to the children; the mother shall not use any illegal substances or allow for any illegal substances to enter her home; the mother shall consent to all random drug screens; the mother shall register and actively participate in programs/counseling; the mother shall accept and engage with in-home parenting supports; the mother shall seek immediate referral to a psychiatrist and should follow all recommendations/treatment; the mother shall register both children for individual therapy and follow any recommendations; the mother shall notify the Society of any changes; the mother shall ensure the children’s basic needs are met; the mother shall at all times be the primary caregiver; and the mother shall sign any consent forms as requested by the Society.

 

9.) Children’s Aid Society of (Ottawa) v. JR

Facts:

In the case of the Children's Aid Society of Ottawa v JR, the facts are as follows. The child in this matter, ABR, is almost two years old, and she's been in foster care since she was three months old. She was initially placed with her mother, JR's custody, back in early 2017, and was removed from her mother's care in August of 2017. The Court found that ABR was in need of protection, and she became a Ward of the Society for a four-month term. Please note, the father did not respond to this application and was noted in default. 

Purpose:
Given the amount of time that the child had already been in foster care, there could only be two possible outcomes in this case. The Judge must make a decision to either order ABR to be placed in the Society's extended care with the possibility of being put up for adoption, or that she must be returned to her mother's custody.

 The Judge in this matter had to consider ABR's best interests. In this case, there is no doubt that JR loves ABR. Society workers that were involved in this case have noted that JR shows good parenting skills while she is with ABR. These things included making sure that ABR was well fed, clothed, and cared for. ABR has always been happy to see her mother and it's clear to see that JR engages with her.

Issue(s):
The Society's original involvement stems from the danger presented by JR's partner, DB, and the violence and physical fights that would occur between them. JR and DB have always had a toxic, on-again, off-again relationship, since the beginning of 2016. The Ottawa police had been repeatedly involved with their relationship. DB has assaulted and threatened JR on multiple occasions, and a case went to Court, in which she testified that he had hurt her so many times that she couldn't remember all of them. Despite all these incidents, JR and DB continued to live together until July of 2018 when JR moved out. She promised the Society that their relationship was over. But, according to the Society, there were still signs that the two were still involved. This stemmed from a series of missed access visits in late October 2018 and JR came in with an unexplained black eye. An investigation was conducted, and DB was found in her apartment in early December 2018, even though he was not supposed to know where she lived. 

The following year, in early January 2019, JR moved into a women's shelter and told the owner of her apartment building that DB did not have permission to stay there. Later that year in February, the Society gave her the right to have ABR for days at a time and overnight. They told JR that if these visits went well, they were open to returning ABR to her care on a full-time basis, rather than seeking an extended Care Order. The Society, however, did warn JR that she could not have contact with DB because of the risk that he will present to the child. 

In March of 2019, JR was observed by a Society worker walking around the neighborhood with DB. When JR was confronted with this information, she had claimed that this was a misidentification, but later admitted that it was DB. At this time, the Society decided that they could no longer support ABR's return to JR. The Society argues that JR has not shown that she will fully protect ABR from the risk arising from her relationship with DB. 

Over the course of almost two years, JR has missed many access visits due to her relationship with DB and she's also missed most of her counseling sessions with the violence against women counselor. She's also failed to complete programs that would help her break all contact with DB. Even though she has a group of supporters, she's not always honest about her contact or her relationship with DB. 

JR is not against the Society’s decision to have DB removed from ABR's life. She does, however, argue the possibility of placing ABR up for adoption. She believes that the Society should take into consideration the bond that she has with her daughter. Another thing that is worth noting is each time she met up with DB, their daughter was not present, nor in her care. JR believes that with adequate support from the Society, she could protect ABR from the risk of DB.

Since ABR is a First Nations, Inuk or Métis (FNIM) child, does ABR continue to be in need of this Court’s protection and if so, what order is in ABR’s best interests? 

The Judge in this matter also referenced the party's previous history with the Society. JR had previous involvement with the Society as a younger child. Her brother had behavioral issues and her mother struggled with alcoholism. JR was also sexually abused by her own father. 

JR still receives income from the Ontario disability support program. She's also received support services from Kate Muscat, a worker with Ottawa Carleton Lifeskills. According to Muscat, JR has a learning disability. JR also uses an assistive hearing device. JR does, however, have the ability to manage daily activities on her own. 

The Judge also took into consideration JR and DB’s relationship over the years.

Conclusion:
Given this information, the Judge made the following decision. Given that ABR just turned 2 and has spent 21 of the 24 months of her life in foster care, the Judge found if she were returned to JR's care even with a Supervision Order, she would ultimately be back in the system. Ultimately, this would not be in the best interests of ABR. 

The problem in this case is not just a single mistake that JR made by agreeing to meet with DB, it's also based on the evidence of the past two years and their relationship. JR has not engaged in any of her counseling or therapy that would allow her to understand what unhealthy relationships look like and what threat they pose to her child. As a result, JR will still assume the risk of meeting with DB while still putting ABR at the same risk. Although JR has been more present for her daughter's life in the previous months, she's not taking advantage of the support and resources extended to her to help her sever her ties with DB. 

JR has also not shown that she can and will say “no” when DB reaches out to her. The proposed No Contact Order does not in fact preclude continued contact between JR and DB. If it were amended, the Judge had no confidence that JR would follow it. 

The Judge in this matter did give sympathy to JR's situation. The judge recognizes that JR's childhood did not give her a clear understanding of how a loving parent behaves and how to distinguish between a healthy relationship and an abusive one. 

Despite all of the concerns, JR has some wonderful parenting skills and has a constant desire to care and protect her daughter, but JR lacks the ability to put her daughter's needs before her own. The Judge believes that JR was given the chance to show that she can place ABR’s best interests ahead of her own but has failed to do so on more than one occasion. The Judge deemed that the focus must be on ABR’s interests and believed that they would be best served if ABR remain in the extended care of the Society. The society's plan to provide ABR with the opportunity to have a stable and happy childhood environment is in her best interests. 

The Judge also decided that until JR is provided with the notice of the identification of the adoptive family for ABR, she may continue to exercise her access no fewer than three supervised visits per week.

 

10.) Children’s Aid Society (Ottawa) v. A.M

 

Facts:
In the case of Children’s Aid Society (Ottawa) v. AM, the facts are as follows. On January 15, 2019, the Children’s Aid Society (Ottawa) filed for a motion for summary judgment under rule 16 of the Family Law Rules on a status review application. This application regards child AR, born in 2010. The Society seeks the following three things: an Order placing the child in the custody of the paternal grandparents, an Order that the child shall have access to her parents at the discretion of the grandparents, and any other further relief as counsel may advise. 

The Society has been involved with the family for over two years. 

The Society submits that the parents have yet to demonstrate a period of stability. The mother has not been able to secure regular employment in two years, despite not having the child in her care and not being involved in programming. Currently, the mother supports herself with social assistance. The mother has also failed to stay consistent in attending meetings and visits with the child. The mother also admitted to having issues with her mental health. 

The father in the matter resides with his parents and the child. He has currently supported himself with social assistance for approximately one year. The father would like to move out on his own but has not followed up on this desire. The father has also not indicated an independent care plan for the child. The parents minimize and deny the serious concerns made by the Society. The father and the OCL support the decision of the Society. The mother, however, submits that there is a genuine issue for trial because the evidentiary record is not complete. Also, the evidence of the child’s views and preferences are inadmissible at this stage. Further, the mother submits to have the child returned to her care amid a Supervision Order. The mother also believes that if her access is at the discretion of the paternal grandparents, it would lead to conflict.

Issue(s):
In this case, the protection application was brought forward by the Society in June of 2017, based on the following concerns: significant drug use by both parents, the child’s exposure to drug use, the mother’s inability to maintain a stable home, the parents driving a motor vehicle under the influence of drugs with the child in the vehicle, and the child being exposed to adult conflict and domestic violence. 

In 2017, an original Order was placed for the child to reside with the paternal grandparents, subject to the supervision of the Society. The father was to have liberal access to the child as long as it was supervised by the grandparents and the mother was granted three visits per week with the child as arranged. 

From 2017 to 2018, the mother had taken some proactive steps to address the Society’s concerns. The Society at this time was prepared to work with the mother to bring the child back home. 

However, in 2018 with parental consent, the court ordered that the child shall stay in the care and custody of the grandparents. The parents were then to meet with the child protection worker to discuss an addictions program. Once the program was identified, the parents were to meet with the worker and assessor to determine the appropriate treatment program. The parents were to demonstrate their ability to maintain sobriety following the program and were to participate in supervised, random drug screens. The grandparents, weeks later, had contacted the worker over concerns that the mother was under the influence when she picked up the father from the mother’s home. It was also observed that the child was afraid of her mother and in one instance ran back to the car crying. 

Legal Analysis:
In July of 2018, the Society filed a status review application to place the child in the custody of the paternal grandparents under section 102 of the CYFSA. The parents at this time each filed an answer and plan to care opposing the proposed Custody Order. On August 27, 2018, Justice Summers ordered for disclosure from various police departments. The Society received over 1000s of pages of reports. The mother has had frequent contact with various police stations. The mother has been charged with disqualified driving while driving on a suspended license; trespass to property; impaired driving while being in the possession of drugs such as cocaine, amphetamines, methamphetamines, benzylpiperazine and GHB. The father also has a history with the police. The father had been charged with impaired driving; possession of drugs including GHD and speed, as well as breaking probation orders.

Conclusion:
Based on the presented facts, the following decision was made. On the issue of access, the Justice finds that the overall access has worked for the child. The Justice also found that the current access of two times per week supervised should be replaced. The mother and the paternal grandmother should have been able to work out a schedule that benefits the child. Further, if the situation requires judicial intervention, the mother may commence an application to vary and specify the access. Overall, it was ordered that the child be placed in the custody of her paternal grandparents, pursuant to section 102 of the Child, Youth and Family Services Act. It was also ordered that the child shall still have access to her parents at the discretion of the paternal grandparents.

 

11.) Children’s Aid Society of Algoma v M.V. L. V, 2019  

Facts:
In the case of Children’s Aid Society of Algoma v M.V. L. V, 2019 the facts are as follows. The mother, MV, and the father, ML, were served on March 5, 2019 in the matter of their children. The children in the case are ML, born in 2009, and M.A, born in 2013. On March 6, 2019, the matter was first heard in court. 

Purpose:
The matter was brought forward by the Children’s Aid Society as a direct application. Under the current wording of the legislation, a direct application means “bringing the children to a place of safety.” 

Issue(s):
The main issue in the case relates to the relationship between ML and the mother of the children. There is a consistent history of domestic violence in the relationship. ML had previous charges relating to domestic violence, forcible confinement and mischief. ML was in custody from October 2016 to January 16, 2017. ML also has a child from another relationship with RK. SM and RK separated in March 2017.

Child protection services visited the home of RK in June of 2017 after the police were contacted regarding a verbal dispute between RK and ML surrounding the child they had together. As of November 2017, it appeared that the biological mother of the children in this case and ML were now in a relationship. In light of ML’s previous domestic violence history, a child protection worker spoke with the mother. The mother agreed to sign a six-month Family Service Agreement that stated ML would not reside in the house with the mother and would not be in a caregiving role to the children. Later that year in December of 2017, ML admitted to a child protection worker that he does lines of cocaine and smokes marijuana daily. ML was then incarcerated for a second time from January 2018 to September 2018. 

On September 4, 2018, it was reported to the Children's Aid Society that ML was living with the mother. At this time, the mother and ML met with the child protection worker, Jessica Bernhardt, to review the six-month Family Service Agreement. The mother expressed concerns of ML having a caregiving role. It was agreed that ML could not be in a caregiving role until approved by the Society. By November of 2018, ML had approved care of the children, but only for brief periods of time.

Once ML was in a caregiving role, a series of events occurred over a period of two weeks that led to the court application.

The events that led to the court application over a period of two weeks are as follows. The mother and ML were driving to the grandmothers for supper when ML and the mother got into an argument. Child ML stated that ML called the mother a “bitch and an asshole.” The argument stopped upon arrival, but continued on the drive home. The mother wanted to take ML to his mothers’ home for the night, but ML refused, grabbing the wheel and almost causing the car to go into the snowbank. ML yelled at the mother to stop the vehicle and at that time got out of the car and stayed with a friend for the night. 

The child said that ML would drink alcohol with the grandfather, but he has never seen ML drink at home. MA indicated that she has never seen ML hit her mother, but has seen her mother hit ML in the forehead with her fingers. MA has also indicated she wishes to live with the father. In February of 2019, the mother attended the afterschool program to speak with MA. The child protection worker also attended. The mother asked MA if she wanted to live with her father and she confirmed. It was also confirmed that MA would live with the mother if ML moved out. The child protection worker indicated that the children are not safe in the home when the mother and ML are together. In terms of the biological father, there is very little material pertaining to him. However, child ML made disclosure pertaining to the father’s current spouse and the use of physical discipline. 

With respect to the children, child ML has no reported problems or issues. MA on the other hand, was diagnosed with severe speech delay and apraxia and has been receiving therapy twice a week.

The main issue before the Court is whether the children should remain in the care of the biological parents with no conditions or with some conditions. If conditions are needed, what should they be? Justice R. Kwolek made the following decision based on the presented facts. It is with satisfaction that division of custody should continue between the mother and father with reasonable conditions. It is found that the Court is concerned with ML and the relationship with the mother. These concerns are related to ML’s past history of domestic violence and the current evidence of domestic violence, mainly verbal and episodic with the current spouse. 

The Court is also concerned with the mother’s minimization of the current household violence and the lack of involvement in her programming to assist and deal with her relationship issues. The mother was granted a year to enroll in the program and has not done so. The mother has made some effort by indicating that she is now enrolled in counseling, meeting regularly with the child protection worker and the mother has contacted the police for the removal of ML when needed. 

In terms of the biological father, the Court has very little concerns other than minimal evidence of substance abuse, domestic violence and punishment within the household. The Children’s Aid Society has requested very little terms on behalf of the father and the father appeared to be willing to comply. 

Conclusion:

Justice R. Kwolek drafted a temporary Order for supervision that could manage the risk to the children. Appropriate conditions were also put in place for ML that would not compromise the safety of the children based on the presented evidence. The mother was subject to the following conditions: the mother shall not discourage the children from open discussions about their views and observations within the home while speaking with the child protection worker. The mother is also required to have ML leave the home if he engages in any form of domestic violence or is intoxicated. If ML refuses to leave the home, the mother is to immediately contact the police for assistance or the mother is to immediately leave the location where the domestic violence is occurring. 

In accordance with child MA, the following clause was put in place, “any parenting time that the mother is to have with the child MA shall be in accordance with MA’s wishes.” Given the concerns expressed by child MA, it was not found necessary for an order to be put in place for ML to have little to no contact with the child. 

The parties are aware that if anything should change with their cooperation with the Children’s Aid Society or with the terms of the order, the Children’s Aid Society may need to take further action into the matter for the safety and the protection of the children. This can include a motion being brought forward for the mother and ML to have restricted contact with the children. 

The conditions for the biological father in this matter include: the father will not engage in any punishment of the children and will not allow anyone acting as a parent for the children to engage in any punishment.

A number of other temporary orders were made and additional time was requested for the mother to file responding material. The Court looked into other applications in other jurisdictions but found no outlining protocols. Overall, the Judge is the gatekeeper and should ensure the best interests, protection and well-being of the children while ensuring that the hearing is conducted in a fair manner.

 Sources:

CanLii. Children’s Aid Society of Algoma v M.V. L. V

 

12.) Children’s Aid Society of Hamilton Region v S.O., 2019, ONCJ 121 (CanLII)

Purpose:
In the case of Children’s Aid Society of Hamilton Region v S.O., the facts are as follows: the Society seeks a disposition Order that the child be placed in the extended care of the Society under s 101(1) of the CYFSA. In finding that certain issues are genuine and should proceed to trial or a focused hearing while the respondent opposes the motion and seeks the return of her child to her care under a supervision order. 

Facts:
On Dec. 19, 2018 it was agreed upon that the child was not First Nations, Inuk or Metis and the child was in need of protection. Since the child was in the Society’s care, the mother had continued to use illegal substances like cocaine and crystal meth. She battled with approaching treatment for her substance abuse, as it was overwhelming and causing anxiety for her. Starting on Nov. 28, 2017 the mother had been kicked out of her home, moved in and out of her sister’s home, lived with a friend, was arrested for theft and then released into the maternal grandmother’s care, and now lives in the shelter portion of Womankind. 

On June 6, 2018, she and her partner were arrested for theft - she then disclosed on Sept. 28, 2018 that she was arrested again for theft. She misses visits with her son frequently, which he struggles with. She has no suitable living space to support a child and herself adequately in the home.

Conclusion:
Justice Sullivan orders that the child be placed in the extended care of the Society with no access for the following reasons: when the mother had opportunities for access, she missed them more often than not, leaving the child upset and angry. There is little benefit for the child to have access to the mother as per CYFA criteria, as her inconsistencies prove that she cannot provide the care that is needed. 

The mother’s proposal requests for more time while she gets her act together, but the child has been in the care of the Society for too long, and any more delay would interfere with a possible adoption process. There are no alternate community placements to consider, or less disruptive alternatives for the child, leaving the best option being adoption and any more time spent on the mother would interfere with the best possible outcome for the child.

For these reasons, the order stands with no access.

 

13.) Children’s Aid Society of Hamilton v A.H. and T.L.

 

Facts:
In the case of the Children’s Aid Society of Hamilton v AH and TL, the facts are as follows. Child, D, is 12-years-old and has been in care, firstly, under a temporary care agreement, then, under a temporary agreement without prejudice Order since May of 2018. The whereabouts of the child’s father, TL, are unknown. Child, D, has three siblings: T, who is 14; D’s twin brother, J, who is 12; and JD, who is 11. D’s three siblings live with their mother. 

There is no child protection proceeding involving the mother and D’s three siblings. All three siblings live with the mother. 

Issue(s):
The Society has been involved with the mother periodically since 2006. The child, D, was in their care on two prior occasions due to what was understood to be “failure to thrive.” The child has grown slowly and remains short in stature and small for his age. According to medical records, there was always a concern of the child’s size from the time he was six. The medical evidence suggests that the issue of the child’s size and stature has been a long-standing issue. The twin, J, however, does not appear to have the same issues. 

The child, D, has exhibited serious behavioural issues. These issues included: not listening, swearing, smearing feces in his room, hoarding food and testing boundaries. The child’s behaviour escalated in 2017 and the mother struggled to manage him. At this time, the mother agreed to place him in temporary care because she could no longer manage his behaviour. Once the child was in the Society’s care, he continued to exhibit behavioural difficulties. Also, while in the Society’s care, the child had gotten taller and had gained some weight, but overall ended up losing the majority of it. 

In October of 2018, while the child was still in the Society’s care, the child was prescribed Concerta. The Society argued that the child’s behaviour had started to improve prior to being prescribed the medication. The mother and foster mother both noted a huge improvement over the three weeks since the child started taking Concerta. 

The mother’s current partner is MG. There is evidence that he has an extensive child protection history as a parent, as well as anger issues and he has reportedly been inappropriate to child, D. There is evidence of a Facebook post that he made using vulgar terms about the mother and child, D. He also made comments about threatening to harm child, D. He was ultimately asked to leave the home by the Society. He was also required to participate in an anger management program and did so. 

The Society does permit MG access to the children for twice a week at two hours per visit. The mother has not been complacent with this decision. MG is not the only inappropriate partner that the children have been exposed to. There is evidence of conflict in the mothers’ previous relationships. 

Going into this motion, the Society had approved of the mother’s access to Child, D, three nights a week. The Society has sought to work with the mother on a number of issues; however, her participation has been minimal. The Society has also encouraged the mother to engage in services regarding her mental health issues, however, she has failed to attend meetings. The Society has also provided the mother with a PSW to assist in the home. The mother, though, has missed many appointments with her. This worker, when visiting the home, noted no improvements. The Society, however, is prepared to fund a psycho-educational assessment for the child, D. This could take place while he is in the mother’s care or not. The mother is open to the child being transitioned back into the home over a period of eight weeks, increasing the number of days/nights he stays. 

Lastly, the father is of First Nations heritage; however, the mother is not sure of which band the father belongs to. The mother is not of First Nations heritage and neither the mother or the child relate themselves as being First Nations. Given this, the Court believes the child will not have Native status.

Conclusion:
Based on the above facts, the following decision was made. The child, D, is not and does not identify as First Nations, Inuk, or Métis. On a temporary basis, Child, D, shall be placed with the mother, AH, on the following transitional schedule: during the week of April 1, 2019, an overnight shall be added to bring the total to 4; during the week of April 15, 2019, another overnight shall be added to bring the total to 5; during the week of April 29, 2019, another overnight shall be added to bring the total to 6; during the week of May 13, 2019 a further overnight is added. As such, the child will be residing full-time, the Society may accelerate the transition if seen fit to do so. 

A supervision Order was also applied to the temporary placement of the child on the following terms: the mother shall ensure that the child is seen regularly by his physician and regular medical providers and the mother is to follow all recommendations; the mother shall administer the child’s medications as prescribed;  the mother shall make her best efforts to structure routines at home similar to the routines at the foster home and the Society will provide a summary of those routines; MG’s access will be at the discretion of the Society; the mother shall follow the treatment recommendations of her physician; and the mother shall follow through on regular couples’ counselling if she wishes to continue her relationship with MG.

 

14.) Children’s Aid Society of Niagara Region v B.P. and B.W., 2018 ONSC 4371 (CanLII)

Facts:
In the case of Children’s Aid Society of Niagara Region v B.P. and B.W., the facts are as follows: the three children have been in the care of the Society for more than 640 days, all in the same foster home. 

Purpose:
The Society has decided to wait no longer for the parents to get their respective lives together and push for extended care with no access, leading to adoption. 

Issue(s):
The father, who may still be in jail, wishes for the children to be released to his care after he is released and has his life organized. The mother wishes for the same thing, leading to the children being transferred to her care once her life is together. Neither parent is advancing any plans for the children to support their needs. The mother has a history of domestic violence, substance abuse and displays an inability to follow through with support workers for herself and the children, while the father has a history of substance abuse, lack of supervision and a criminal lifestyle. 

On March 6, 2017 the children were witnesses to a physical altercation between the mother and her sister.

Conclusion:
Justice Pazaratz ordered that the three children are in need of protection and are to be placed in the extended care and custody of the Society without access for the purpose of adoption. This order came as a result of the following reasons: in their affidavits responding to this summary judgment motion, the parents have said nothing about access if the children were to remain in the care of the Society. The relationship between the children and the parents have not proven to be beneficial to them as the parents both admit to needing to get their lives together, and due to the amount of time that has gone by, the best interests of the children is to set them up for adoption. 

The father at one point, may have played a significant role in the children’s lives, but he is now out of their lives. The mother’s involvement does not amount to being beneficial as the children display their frustrations with her tardiness, lack of commitment and consistency as well as her inability to focus on them, her quick temper and her harsh and emotionally damaging outbursts and name-calling. The visits that transpire pose no positive, lasting benefit to the children and the Justice has concluded that it is in the best interests of the children to remove access.

 

15.) Children’s Aid Society of Niagara Region v T.-D. and A., 2020 ONSC 5241 (CanLII)

Purpose:
In the case of The Children’s Aid Society of Niagara Region v T.-D and A., the appellants are appealing an Order granted on summary judgment by Justice Maddalena on March 24, 2020 that ordered the appellants’ two children in the extended care and custody of the CAS for adoption with no access. 

Facts:
The facts are as follows: The maternal grandmother continuously caused issues with the appellants, shouting that they were drug users and the children should not be in their care - resulting in numerous anonymous calls from neighbours to the police, where CAS was involved. On July 12, 2019, another anonymous call was reported. As a result, a child protection worker attended the home and stated under affidavit that the house was not in a state that a child should be present in. There was another person in the house who was under the influence, faeces were on the walls of the home, and the appellant mother was under the influence. The CAS removed the children from the care of the appellants and placed them in foster care, while performing assessments to determine the state of the children.

Conclusion:
Justice Backhouse ruled that the appeal be allowed, as the Motion Judge relied on hearsay evidence when concluding that the appellants were dru- impaired while caring for the children. The evidence regarding the maternal grandmother and her involvement while under the influence, was not looked into, and there was no analysis concluding if the evidence given by the CAS worker was reliable. Thus, it was ruled that it would not be admitted at a trial as this is an error of law.

 

16.) Children’s Aid Society of Niagara v. I., 2019

Facts:
In the case of the Children’s Aid Society of Niagara v. I., the facts are as follows. On May 9, 2019, the child was removed from the parents' care to a place of safety by the Children’s Aid Society of Hamilton, ON. 

Purpose:
The Society applied for a determination that the child was in need of protection. On May 14, the parties appeared before Bale, J. in the Family Court of the Superior Court for a hearing under s. 90 of the Child, Youth and Family Services Act. Bale, J. adjourned the matter. An order was made under s.90(2) of the act that the child be returned to the mother with conditions. One of the conditions Bale, J. set out was that the mother is required to live with her own mother in Welland, ON. At this time, the matter was transferred on consent of the parties.

Legal Analysis:
The director of the Children’s Aid Society of Niagara filed a notice of application for leave of appeal and notice of appeal to the divisional court. The appeal cited s.19(10 (b) of the Courts of Justice Act, and a motion under s.121(4) of the CYFS for a temporary Order for care and custody of the child and a stay of the Order. The Judge believes that the Society hasn’t correctly identified the Divisional Court’s jurisdiction under section 121(1) of the CYFS Act. Section 21.9.1 of the Courts of Justice Act, read in correlation with the schedule to s.21.8 of that act, provides the provision for an appeal from the Ontario Court of Justice with respect to an Order under part V of the CYFS Act. At that time, the Society had an appeal as of right. In any event, a temporary Order can be made under s.121(4) of the CYFS Act pending a disposition. It was deemed there was no reason to consider a stay. Either Bale, J. order will go into effect, or any order made will replace it. The Justice in the matter also opted to not apply the test for a stay as considered in similar contexts under CAS Sudbury and Manitoulin v. C.B., 2003 CanLII 2043 (ON SC)and CAS Ottawa-Carleton v. B.H., 2017 ONSC 4799.

The Justice applied two considerations with the most weight. Consideration one falls under the CYFS Act. The CYFS Act provides that the promotion of the best interest of the child and the child who was removed to a place of safety shall be returned from the care which he/she was removed, with conditions or no conditions, unless the Society show reasonable and probable grounds that there is a risk to the child’s safety or that the child is to likely suffer harm while outside of the Society’s care (ss, 1(1), 94(2)). A temporary decision was made by a court of contempt jurisdiction and should not be overturned without good reason. A good reason to overturn the decision could include an apparent error of law, error of fact or fresh evidence that makes a difference. The Society claims a number of errors and offers fresh evidence on the matter. The Judge believed some of the submissions were arguable. The Judge also had reason to discount reports from the parental grandparents. The most serious reports came from the maternal grandmother. A CAS worker said that the grandmother had told her on the day of removal that the mother left in a hurry with limited supplies and she spoke of hearing voices and being unable to manage her anger. The grandmother also stated that the mother will scream, hit and punch people when angry. 

With respect to the remaining evidence and the four matters of concern in this case, the Judge was concerned about the source of these allegations. The parties, however, did agree that the matter should be adjourned. The parents in this matter have not yet had the opportunity to retain council and respond to the allegations made by the Society.

 To find that the child can be properly protected by an Order of returning the child to the grandmother is seen as an overriding error. The conditions originally imposed were strict. These conditions also gave no power to the grandmother to prevent the mother from running off with the child. The only thing the grandmother could do is report the information to police, after the fact. The Judge thought that the child couldn’t be protected properly unless placed with the Society or another person.

The appeal Judge had an advantage that Bale, J. did not. The maternal grandmother gave consent to take charge of the child, together with the plan originally outlined by Bale, J. This will give the grandmother the authority over as well as the responsibility for the child. The Society objected to this as they have not had a chance to inspect the stability of the home. The grandmother has previous involvement with the Society, all of which were unverified except one incident with her previous partner. She has not seen her previous partner in 14 years and now lives with her husband, while raising a 10-year-old with special needs. She has been forward with the Society even though her disclosure was delayed. 

Conclusion:
The motion was granted and the order of Bale, J was varied. The motion for a stay of Order by Bale, J. was dismissed and no costs were sought.

Sources:

CanLii. Children’s Aid Society of Niagara v. I.

 

17.) Children’s Aid Society of Peel v C.D., 2018 ONCJ 917 (CanLII)

Facts:
In the case Children’s Aid Society of Peel v C.D., the facts are as follows: the Respondent, C.D.’s children were apprehended by the PCAS on April 28, 2016 and have not returned to their mother’s (C.D.) care since. The request is set to place one child in the extended care of the PCAS, two in the care of their father, and the last in the care of the PCAS for a period of four months. C.D. sought an Order for the return of all of her children to her care and is open to supervision from the Society. C.D. had issues with the twins potentially residing with their father as the father (G.B.) has an unconventional history. However, C.D. was charged criminally and later acquitted, for the assault of M and the Twins; they were still taken into the Society’s care.

Legal Analysis and Conclusion:
Justice Clay ordered that the child, M, is in need of protection per s. 74(2)(a)(i-ii)(b(i-ii) of the CYFSA and will be placed in the extended care of the Society. Children AA and AS are in need of protections per s. 74(2)(b)(i-ii) and will be placed in the care of their father, allowing their mother to have access per the fathers discretion. Child, D, is also in need of protection as per the same section for a period of six months with access to her mother and siblings at the discretion of the Society. The reasoning for this order is as follows: M is in need of protections due to her suffering actual harm caused either from C.D. 's hitting or from her lack of supervision. The twins gave statements that suggest that C.D. hits her children when she is very upset, making their living conditions unsafe. After discovering that child, D., was not residing with their father in Antigua, but with C.D. for a long period of time, to ensure that all children are protected, D., is also to be put under the Society’s care. 

A Status Review date for D was set for May 29, 2019.

 

18.) Children’s Aid Society of the District of Nipissing and Parry Sound v. K.C-B. and D.P

 

Facts:
In the case of the Children’s Aid Society of the District of Nipissing and Parry Sound v KC-B and DP, the facts are as follows. The Respondent parents came to the attention of the Society when they were observed in the home by a family member. Upon investigation, a birth alert was issued requesting that North Bay Regional Health Centre contact the Society upon the birth of the Respondent mother’s child. 

Purpose:
The society apprehended the child based on a perceived lack of preparedness by the Respondent parents. The society is relying on the following concerns: possible substance abuse; the Respondent father's youth justice system involvement; possible anger management issues; the Respondent parents’ lack of engagement with the Society; and the Respondent parents did not have items required for the baby's discharge from the hospital. 

Legal Analysis:
Both Respondents also have past involvement with the Society. In January of 2019, the Society was advised that the mother was receiving care at the hospital. The mother received medical care prior to the birth through her physician, an obstetrician, in hospital. During her week of hospitalization, the mother experienced health difficulties and the decision was made to induce labour. The child was born and was apprehended by a warrant in February of 2019. The Society found the child to be in need of protection pursuant to subsections 74(2)(b)(i) and (g). Under the Child, Youth and Family Services Act section 74 (2)(b)(I) and (g) outlines: “A child is in need of protection where (b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (i) failure to adequately care for, provide for, supervise or protect the child, (g) the child has suffered emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and the child’s parent or the person having charge of the child does not provide services or treatment or access to services or treatment, or, where the child is incapable of consenting to treatment under the Health Care Consent Act, 1996, refuses or is unavailable or unable to consent to the treatment to remedy or alleviate the harm.” The purpose of the CYFSA is to promote the best interests of the child. In this case, the Respondent parents are young. However, the youthful inexperienced parents have not been presumed to be unable to parent their children.

Issue(s):
The first issue in this case is the possible use of marijuana. This concern came from a Protection Worker who states the mother was diagnosed with Hyperemesis. This statement is a hearsay statement about a medical condition with no provided evidence from a medical practitioner. The Court in this matter is not satisfied that there is evidence of risk of harm to the child. 

The second issue in this matter deals with the father's youth and justice involvement and anger management issues. The father's involvement with the youth justice system began when he was 14 years old. The father had committed mischief (property damage) and was given a period of probation, which was completed in 2019. This, however, does not show any signs of anger management issues. Given this, the Judge believes the society has not demonstrated how the father's emotional issues and apparent rudeness at times, gives risk of emotional or physical harm to the child. 

The third issue deals with the Respondent parents’ lack of engagement and pregnancy planning with the Society. The Society argues that the parents failed to engage with the Society, and this demonstrates a risk of physical or emotional harm to the child. The Respondent mother in this matter kept canceling the visits set up by a Society worker. The mother in this matter canceled a few visits due to health concerns. The Judge determined that the evidence provided by the Society was not clear enough to show that the mother failed to engage in planning. The mother was actually in the care of medical physicians for a significant amount of time. 

Lastly, issue number 4 deals with the parent's preparedness for the baby’s discharge from the hospital. The Society argues that the parents did not bring the correct items to the hospital for the baby and did not have the majority of the items in their possession. Given that the mother's original due date was not until March and due to health concerns, labor was induced in early February. The mother did not have time to prepare fully. The Court believes that this is not adequate to show an unfit parent.

Conclusion:
In conclusion, the Judge found that the Respondent parents were young and inexperienced as first-time parents. The onus in this case is on the Society to prove that the risk is real and not based on speculation. The Court in this matter is not satisfied that the child is at risk outlined under section 74(2)(b)(I) and (g) of the CYFSA. The Court was unable to find the child in need of protection with the evidence presented.

 

19.) Children’s Aid Society of the Districts of Sudbury and Manitoulin v C.H., 2018 ONCJ 453 (CanLII)

Purpose:
In the case of Children’s Aid Society of the Districts of Sudbury and Manitoulin v C.H., the facts are as follows: the Society brought a motion for summary judgment due to finding that three year old Amelia was in need of protection due to a risk of physical harm, risk of emotional harm and should be able to be adopted. 

Facts:
The Respondent mother has a history of failed relationships that usually ended in domestic violence, as well as a drug dependency problem. The drug problem led to the child suffering from severe neonatal abstinence syndrome, due to the drugs in the mother’s system while in the womb, leaving her in the hospital for almost two months after birth.

Conclusion:
Justice Kukurin ordered that the mother shall not have any access to the child as she has failed to meet the best interest test on the balance of probabilities. She was required to show that the relationship between her and the child was a beneficial one at the time of the trial, not just in the future, and she failed to do so. The reasoning behind the Order is as follows: the mother has never been the primary caregiver of the child, but the visits have been positive.

Issue(s):
Despite this, Dr. Ross, a psychologist who prepared a parenting capacity assessment report under s.54 of the CFSA concluded that the child never had a primary to the maternal mother, but the foster mother. The issues surrounded whether the mother met the onus of satisfying the best interest test and she did not. While the access visits went well and showed a connection between the mother and the child, the mother also ensured that the child was born addicted to drugs, she left the child with no actual life advantage from her access visits, other than the time being spent being happy. Access for a young child needs to be beneficial and meaningful and while the visits were merely positive, posing no human development for the child. 

Further Conclusions:
The mother was seen as a secondary caregiver that can easily be forgotten with missed access and it would not hinder the child’s development at all.

20.) Children's Aid Society of the Regional Municipality of Waterloo v. J.M.

 Ontario Judgments

 Ontario Superior Court of Justice

2021. Piccoli J. Heard: February 24, 2021.
      Judgment: March 8, 2021.

 

Court File No.: FC-20-00000347-0000

Purpose:

Temporary Care with respect to the child, D.B.-R., born [...] (the "child").

 Facts:
As a result of the concerns regarding the mother's drug use in the home and the father's lack of consent to the Family plan, the CAS initiated a child protection application. A Court Order was made on December 24, 2020, placing the child in the care of the maternal grandparents on a without prejudice basis. CAS' decision to keep the child with the Maternal Grandparents was based on what would be least intrusive to the children's routine, since he had already been residing there since August 29, 2020.

It is the position of the Applicant, the mother ("Mother"), the maternal grandparents ("Maternal Grandparents"), and the Office of the Children's Lawyer ("OCL") that the child remains in the care of his maternal grandparents.

The Maternal Grandparents agree with the CAS and Mother.

 Ms. Leanne Way, counsel for the OCL, represents the child and supports the position of the CAS, the mother, and the maternal grandparents. She indicates that the child is seven (almost eight) years of age and he is very mature for his age. He wishes to remain in the care of the Maternal Grandparents. He does not want any changes. He hopes that his Mother will get better so that he can return to her care. OCL indicated that the child is very independent and stated his views and preferences willingly, with no pressure.

 Issue(s):
Whether it is in the child's best interests and the least disruptive placement consistent with adequate protection of the child to make an order under clause (2) (c) to place the child in the care and custody of the Maternal Grandparents’ care.

 Law/Analysis:

Temporary Care and Custody Test:

 

This is a hearing under s. 94 of the CYFSA to determine the placement of the child during the period of adjournment, or more commonly known as a temporary care hearing.

The legal test for the Court to apply on this motion is set out in ss. 94 (2), (4) and (5) of the CYFSA that read as follows:

94 (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.

Under the legislation, there is a two part-test that the Society must meet on a temporary care hearing.

Section 74(3) of the CYFSA sets out considerations for the Court in determining the best interests of a child. Sections 74(3)(a) and (b) of the CYFSA are mandatory considerations the Court must consider the child's views and preferences, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained.

Conclusion:
At this stage of the proceedings the legislative presumption that the child must remain in the care of the person(s) who had charge of him prior to intervention, must prevail.

There are no protection concerns with respect to maternal grandparents. The protection concerns relate to the mother. Although the father posits that the maternal grandparents did not adequately protect the child as the mother was doing drugs in their home, the Judge does not agree. They acted appropriately and called police and CAS. They initiated their own child protection application.

In this case, the child has lived with the maternal grandparents since August 2020. Prior to that, they provided almost daily care for the child during the week. All of his needs are being met by the maternal grandparents. He is settled in a routine which includes the times he spends with the father. The Judge finds that the least disruptive alternative for this child is that he remain with the maternal grandparents. Accordingly, the Judge makes the Order that the child remain with the Maternal Grandparents.

 

21.) Children's Aid Society of Oxford County v. C.L.

Ontario Judgments

Ontario Court of Justice

S.E.J. Paull J. (In Chambers) April 14, 2020.

Woodstock Court File No.: C104/19

  

[2020] O.J. No. 1560  |  2020 ONCJ 183

Between Children's Aid Society of Oxford County, Applicant, and C.L., C.S., Respondents

Purpose:
The Motion before the Court was brought by the Respondent, C.L. on an urgent basis for a return of the child to the parent's care, or the return of the child to C.L.'s care with her residing with the paternal grandparents.

Facts:
The child had been in the care of both parents pursuant to an interim order dated August 14, 2019, but was removed to a place of safety on September 27, 2019 because the parents, particularly C.S., were noncompliant with terms of supervision.

The affidavit concludes with a statement that the paternal grandparents are agreeing to C.L. going back to reside in their home with the child until the Society completes drug testing on C.S.

 

 

Issue(s):

The Society previously supported the plan that C.L. and the child reside with the paternal grandparents with C.S. residing apart. It was C.L. and C.S. who were refusing to reside apart, in order that the child could be placed in the mother's care alone (the court strongly encouraged the mother to reconsider her position).

Law/Analysis:

Child and Family Services Act, R.S.O. 1990, c. C.11, s. 37(3), s. 51, s. 51(6)

Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 1, s. 1(1), s. 1(2), s.

74, s. 74(3), s. 94(9), s. 94(10)

The issue of when an urgent hearing is justified was reviewed in detail by Pazaratz J. in Ribeiro v. Wright, 2020 ONSC 1829. I agree and adopt his analysis. I also agree with Pawagi J. in Children's Aid Society of Toronto v. T.F., 2020 ONCJ 169, that the court's reasoning in Ribeiro v. Wright is equally applicable, with modification, to child protection cases.

What is required is a comprehensive analysis of the best interests of this child, considering the totality of the circumstances. This will require that C.L. provide the specifics of her new plan(s) to either reside with the child at the grandparents’ home again, or that her access take place at the grandparents’ home.

It will require the Society to undertake its due diligence to review the merits of the plan(s) to see if a less restrictive approach will address both the protection and Covid-19 safety concerns.

Conclusion:
The Respondent C.L. shall serve and file by April 30, 2020 sworn evidence addressing the particulars of her plan(s) as directed herein.

The Society shall serve and file responding materials by May 15, 2020.

 The motion shall proceed as a basket matter based on the written materials filed.

 

22.)  Catholic Children’s Aid Society of Toronto v A.P., 2019 ONCJ 631 (CanLII)

Purpose:
In the case of Catholic Children’s Aid Society of Toronto v A.P., the facts are as follows: the CCAS commenced a Protection Application in regards to the Respondent’s 9 month daughter. 

The child was taken to the Society at birth per the Respondent mother’s request and the application was issued on Nov. 6, 2018, seeking an order for extended society care with no access. 

Facts:
The application was based on the Respondent mother’s long history of cocaine addiction and incarcerations, along with her admitting that she used drugs daily while pregnant with the child. On Nov. 6 2018, a temporary without prejudice Order was made, placing the child in the care of the Society. The mother failed to be present for three separate court appearances and both the mother and father were held in default. Since her release from jail, the mother never had access to the daughter while the father either cancelled, did not show-up or was late to visits when the child had to travel 2 hours for the visit. The CCAS is seeking an order for no access from the parents as they do not see the relationship as beneficial or meaningful to the child.

Conclusion:
Justice Zisman orders that there will be an Order for no access to the child by the biological parents for the following reasons: the infant child is to be placed in an adoptive home and the process could potentially be delayed due to access from either the birth mother or father. If the father were granted access, the CCAS would need to find a family who is willing to accommodate face-to-face contact with the father. 

Legal Analysis:
SS 74(3) of the CYFSA - the Court must consider the remaining best interests factors; the mother has shown many inconsistencies which could continue to leave the child disappointed in the future and access could confuse and undermine the child’s secure placement in her adoptive home. The CYFS act outlines that family history is important to a child's future, but as the Society has been dealing with the mother for years, the knowledge of her medical and family history is extensive enough that she is not required to provide this information to the child herself. 

Further Conclusions:
There is little to no harm being done to the child if there is no access, making the order of no access being in the best interest of the child.

 

23.) Catholic Children’s Aid Society of Toronto v W.P.P., 2020 ONCJ 388 (CanLII)

Purpose:
In the case of Catholic Children’s Aid Society of Toronto v W.P.P, the facts are as follows: the Society commenced a Protection Application on May 15, 2018., after determining that the child S.P.G. was in need of protection after getting hit by her father, resulting in a nose and lip bleed. 

Facts:
On October 12, 2018.., the child was placed under the care of the Society for 6 months - the parents having access at the Society’s discretion in line with the child’s wishes. She was released into her parents' care for a period of 6 months. 

Ongoing discussion came as a result of the Society issuing a Status Review Application on April 17, 2020., allowing the parents to respond and the Society to consult S.P.G. 's counselor to assess her feelings. The Society suggests that the child is not doing well in the care of her father and stepmother, and spoke about self-harming and unnatural behaviour (hoarding food, taking items in the house that don't belong to her) as reported by her therapist to the Society in January 2020. The parents, however, state that the Society has blamed and shamed them for their previous actions and they have not assisted the family in the reunification process with their child. The OCL opposed the Society's motion, stating that S.P.G. has strong wishes and preferences to remain in her parents' care.

Conclusion:
Justice Melanie Sager ordered that the Motion brought on July 8, 2020 by the Society to keep S.P.G. in their care be dismissed for the following reasons: the Society has not demonstrated any change in S.P.G’s circumstances that affect her best interests that requires a change at this time. While it is clear that there are some struggles between S.P.G. and her parents, they are not issues that require a change in placement. While the parents need to continue to go to counselling and work on personal issues that resulted in this order, the court also states that they should be given time to show the results of their counselling. The child’s wishes to remain with her parents are taken into consideration as the request has been consistent since March of 2020, and has stated that if she returns to the Society, her mental health will deteriorate.

 

24.) Catholic Children’s Aid Society of Toronto v R.H., 2018 ONCJ 854 (CanLII)

Purpose:
In the case of Catholic Children’s Aid Society of Toronto v R.H., the facts are as follows: the Society has requested a Status Review Application pursuant to s. 113 of the CYFSA. The child was in need of protection and was in the Society’s care from Oct. 13, 2016 until Sept. 19, 2017 and again since Aug. 28, 2018. The mother is seeking to either have the child returned to her custody under a supervision Order, or alternatively, she seeks access while the Society seeks a final Order of extended society care without access, in order to place the child for adoption. 

Facts:
The mother is generally on time for visits with the child and their relationship is growing. 

Issue(s):
While her credibility is not the best as she is secretive, and has reconnected with her biological father, who is a convicted paedophile, with 40 prior criminal convictions, and is prohibited to come in contact with children under 14 years of age, her intentions with the child supports his needs and best interests.

Conclusion:
Justice Paulseth orders that the child is to be placed in extended care of the Society and the mother is to have access. The child is the access holder and is able to contact the mother through cards and letters with the frequency at the discretion of the society. The reasons are as follows: following the CYFSA criteria, an access plan is in the best interest of the child. The child enjoys the visits; consistent visits are beneficial to the child. The child is attached to the mother, but the relationship does not disrupt a placement into a permanent home as the child is young and able to adapt. The contact between the mother and her biological father was of concern, but there was no evidence proving that the reconnection put the child at harm.

 

25.) CCAS v I.B et al., 2020 ONSC 5498 (CanLII)

Purpose:
In the case CCAS v I.B et al., the facts were outlined as follows; the Catholic Children’s Aid Society of Hamilton is seeking an Order that the three children of I.B et al., remain in the Society’s care and the parents respectfully have no access. 

Facts:
All three children were brought into the Society’s care on November 17, 2018., ranging from 20-32 months respectfully. The three children eventually made it to the same foster home, while one was removed and put into a special treatment foster home to due his behavioural issues. These issues range from swearing to physical altercations with other children in the foster home.

Conclusion:
Justice Bale ruled that the children will remain in the extended care of the Society and the non-primary parent, R.C have no access. Parents I.B and K.K’s issue of access is to be heard at a focused hearing at a later date. This decision was based on the following reasons: The children have been subject to witnessing many arguments between parents and fights with neighbours. Due to conflicts within the household, it was recommended as early as November 2018 that the couple, I.B and K.K who were in primary care of the children, were to undergo relationship counselling to address their domestic issues of conflict and violence. Despite their multiple attendances at anger management courses, neither parent has demonstrated significant positive change, showing that they are able to care for the children without exposing the children to violence and abuse.