) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) Jennifer A. Mealey, for applicant society ) ) ) — v. —, 2011 ONCJ 676

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply with subsection 45(8), read as follows: 45.—

(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family. . . . 85.—

(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Sault Ste. Marie Registry No. 120/2010 DATE: 2011·V·04 CITATION: Children’s Aid Society of Algoma v. C.B. , 2011 ONCJ 676 ONTARIO COURT OF JUSTICE BETWEEN: ) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) Jennifer A. Mealey, for applicant society ) ) ) — AND — ) ) ) C.B.. and J.B.. ) ) T.

Frederick Baxter, for the respondent mother, C.B.. ) ) Eric D. McCooeye, for the respondent father, J.B.. F ) ) ) HEARD on 20 April 2011 [ 1 ] JUSTICE J. KUKURIN:— The child in this case is D., age ten months. [ 2 ] D. was apprehended by the society at hospital at birth. A temporary care and custody order was made in favour of the society. He was placed in a foster home. The mother, Ms. C.B.., is a chronic drug abuser, likely an addict, whose drugs of choice appear to be cocaine (intravenously), oxycontin and fentanyl.

Recognizing the unlikelihood that D. would be placed in her care, she proposed her cousin, Randi, as an appropriate caregiver until she addressed her own problems sufficiently to be entrusted with the care of D.. [ 3 ] The society, as it is statutorily mandated to do, assessed Randi and found her to be a suitable caregiver. The child protection case was abbreviated. A finding was made under section 37(2)(b)(

i) and D. was placed in the care and custody of Randy, subject to a six month supervision order dated July 21, 2010. It contained a number of conditions. One of these required Randi to allow access to the mother Ms. C.B.. only in accordance with the terms of an order made contemporaneously for maternal access. Randi was aware that the society had decided, as it had the right to do, that the mother’s access was to be supervised. [ 4 ] There was no “father” named as a party in this child protection case. The society was aware that Ms. C.B.. had been having some kind of relationship with Mr.

J.B.., but she denied that Mr. J.B.. was D.’s biological father. Accordingly, Mr. J.B.. was not involved in the child protection case at all. [ 5 ] The present case is an early status review application. The society alleges that Randi allowed the mother, Ms. C.B.., to have unsupervised contact with D.. On August 25, 2010, after being in Randi’s care for only five weeks, D. was again apprehended by the society and put into a foster home. The society’s claim in its application is for an order for six months wardship.

[ 6 ] However, there have been some subsequent developments: (

a) On motion at tab 2, a “without prejudice” order was made for temporary care and custody in favour of the society. (

b) On motion at tab 8, Mr. J.B.. was added as a party respondent on the basis of his bio-parentage of D.. The mother, Ms. C.B.., disclosed this to the society only on July 30, 2010. (

c) On motion at tab 10, an order was made dated October 13, 2010, placing D. in the interim care and custody of his maternal grandmother, Judy, who had been proposed as a kin placement by the mother. This followed a favourable, but marginal, kin assessment. (

d) On motion at tab 18, following an apprehension of D. from his maternal grandmother on January 22, 2011, an order was made “without prejudice” for interim care and custody in favour of the society. The basis for this apprehension is that the grandmother permitted the mother unauthorized and unsupervised access to D.. The allegation is that a babysitter hired for the day by the grandmother permitted the mother to ride in her car when she was transporting D.. (

e) The society has brought a motion at tab 20 seeking an order for interim access for the father Mr. J.B.., subject to a number of conditions. Since he became involved, the society had extended “access” to him, despite the absence of any court order. [1] This “access” had progressed to the point that D. would spend two or three days in Mr. J.B..’s care, including overnights, and without supervision. This motion remains outstanding. (

f) The mother has brought a motion at tab 22, for an order increasing access time for herself and for the grandmother. The terms of maternal access have remained virtually the same since D. was born. There is no current order for interim grandparental access. This motion is still outstanding. (

g) The father has brought a motion at tab 26, seeking an order for interim care and custody of D. subject to an interim supervision order with conditions. In the alternative, he asks for an order for interim paternal access several hours each day, and an overnight visit once per week, all unsupervised. The father continues to have “unofficial”, or at least unordered, access permitted by the society. (

h) The society, which has never amended its claim for the six-month wardship order sought in its application (tab 1), and whose most recently filed plan of care (tab 17) proposes placement with the maternal grandmother subject to a 12 month supervision order, and which does not have any claim for paternal access on any final basis, seems to favour interim care and custody in favour of the father, apparently because it now considers the father to be the best choice for a permanency plan for D.. [ 7 ] In this profusion of motion claims, it is well to keep in mind just where this case is, procedurally speaking, who has the evidentiary onus, what the test(

s) is/are for interim care and custody at this stage, what is the authority for, and what criteria apply, to determinations of access, and what evidentiary standard applies to these various motions. [ 8 ] None of the claims fall under

section 51 of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (“the Act”). Accordingly, the evidentiary standard in section 51(7) [2] does not apply. Since all claims currently being entertained are brought by motion of someone or other, rule 14 of the Family Law Rules , O. Reg. 114/99, as amended (the rules”), does apply, [3] and, in particular, subrules 14(17) , (18) , (19) and (20) apply to evidence on these motions. [ 9 ] This status review application is brought by the society pursuant to section 64(2)(c) [4] .

The order for placement with the maternal cousin, Randi, subject to society supervision, and conditions, for six months represents the “status” that the society is seeking to have reviewed in its present status review application. [ 10 ] This placement with Randi is statutorily required to continue until the status review application has been disposed of, “unless the court is satisfied that the child’s best interests require a change in the child’s care and custody ”. [5] [ 11 ]

Section 64 has nothing to do with access. [ 12 ] In this case, the “status” of D., was superseded by the de facto apprehension by the society from Randi. This was superseded by a “without prejudice” order in favour of the society. This in turn was superseded by an order in favour of the maternal grandmother, Judy. This was once again superseded by another apprehension, which in turn was superseded by another “without prejudice” order in favour of the society.

All of these orders are interim orders, and the most recent, dated January 26, 2011 is made “without prejudice”. [ 13 ] So, in terms of who is seeking what relief, it is clear that the society is a claimant. Apprehensions do not vary existing care and custody orders. Only other orders do this. Such other orders are almost invariably obtained by motion. The society, in its motion at tab 18, does not state which existing order it wishes to vary. However, it cannot vary the final order that granted care and custody to Randi. That order was dated July 21, 2010. It was for six months duration.

By its very terms, it expired on January 20, 2011. The society’s motion brought (at tab 18) to vary interim care and custody was not even filed until January 25, 2011. Ergo, it must be some other order that the society seeks to vary. [ 14 ] In fact, there is the later order dated October 10, 2010 which gives interim care and custody to the maternal grandmother, Judy. It is this order that the society is seeking to vary. [ 15 ] However, the society is not the only party wishing to do so. The father Mr.

J.B.. also wishes to vary that order. [ 16 ] The mother opposes the variation sought by both the society and the father. She wants D. returned to the maternal grandmother.

[ 17 ] The maternal grandmother is not a named party in the society’s motion at tab 18. She was not served with this motion despite the fact that she had both care and custody, albeit interim, of D. when this motion was brought. She was not a foster parent of D.. Although she may not fall within the parameters set out in section 39(3) of the Act [6] with respect to the status review proceeding, she appears to qualify as a mandatory party to the society’s motion at tab 18 by virtue of subrules 7(2) [7] and 7(4)(2) [8] .

It seems somewhat incongruous to exclude from participation in a decision on change of care and custody, the very person that had (by court order), and was unilaterally deprived of, care and custody. [ 18 ] There are several actual issues arising from the society’s motion at tab 18: (

a) Should there be a change from the interim care and custody order in favour of the maternal grandmother? (

b) If so, should that change the placement to someone else, or maintain the placement and change the supervision order terms and conditions? (

c) If placement should be changed, with whom should the child be placed (and in that case what supervision order terms and conditions should apply)? (

d) If the placement is to remain unchanged, what changes, if any, should be made to the supervision order terms? [ 19 ] There seems to be a consensus that whatever order is made, it must be one that is in the best interests of the child. That seems a reasonable criterion to apply. In fact, it is reasonable to infer that this same criterion was used by the court that placed D. with his grandmother, Judy. Accordingly, as with any motion to vary, the motion applicant must show, with admissible evidence, that there has been a material change in circumstances since the prior order was made.

If this threshold is reached, there remains the onus of satisfying the court that the new order sought is in the child’s best interests. [ 20 ] The position of the society is that the grandmother has shown she is unreliable in terms of enforcing the conditions of the interim order and ensuring the safety of the child, by allowing the mother to have the child unsupervised. However, the position or assessment of a party is not evidence.

The actual evidence to support this current assessment relates to three factual events. [ 21 ] First, the society claims that the mother was at the Cambrian Mall, with the child, unsupervised by the grandmother. The source of the affiant’s information is Jennifer Pineault, a society on-call worker who apparently was not at the Cambrian Mall to make any firsthand observations of this. Her source of this information was a telephone call from the father, Mr. J.B.., who also was not at the mall on the (unspecified in the society’s evidence) day in question.

His source of this information is an unidentified and unnamed “acquaintance”. It is not stated whether this “acquaintance” acquired his or her information by way of firsthand observation or from someone else. The grandmother, when confronted with these allegations, admitted being at the mall, but maintained that she was present with the mother the whole time. [ 22 ] This evidence of the society is rejected in its entirety. It has absolutely no evidentiary value.

It does not comply with subrule 14(18) [9] and flies in the face of subrule 14(19)(a). [10] [ 23 ] Second, the society intimates, but does not make any clear allegation, that the mother was at the grandmother’s home overnight on January 5-6, 2011. The basis of this intimation is firsthand observation of the society worker, the affiant in the society’s affidavit, who arrived at the grandmother’s home at 9:10 a.m. to find the mother present with the grandmother and the child. The affiant observed no footprints in the newly fallen snow which suggested to her that no one had entered or left the property that morning.

The affiant’s evidence is that she confronted the mother who maintained that she had walked to the grandmother’s home that morning. Moreover, the grandmother, who was present, confirmed what the mother had said about arriving that morning. She subsequently swore to this in a later affidavit. Their evidence is that it was still snowing when the society worker arrived and that the mother had arrived there up to a half hour previously. [ 24 ] The society’s evidence on this incident is unsatisfactory. There is no actual “allegation” made of a breach of a supervision order condition. [11] It is a suggestion only.

While the court can make inferences from factual occurrences recounted in the evidence, it must weigh that evidence. With respect to this occurrence, I discount the evidence of the society. The affiant is not identified or qualified as a mantracker with any expertise relating to footprints. The affiant was not present overnight to make any observations. The mother and grandmother both denied the affiant’s suggestion. The grandmother offered a plausible explanation for the observation of the affiant. The society’s evidence is more in the realm of conjecture or suspicion.

It does not meet the civil standard of the balance of probabilities. I do not make an inference that the mother was at the grandmother’s home overnight from the evidence relating to this incident. [ 25 ] The third factual incident is the main one relied upon by the society. It begins with a telephone call to the affiant from an anonymous person. Whatever this person recounted to the affiant is clearly hearsay.

Although hearsay is admissible in affidavits filed in support of motions, such affidavits must only contain such hearsay information if the source of the information is identified by name and if the affiant believes that the information is true. In this instance, the hearsay is not identified by name. There is no indication as to whether the affiant believed this information to be true. [ 26 ] In

summary, the entirety of paragraph 19 of tab 19 is rejected as inadmissible evidence to the extent that it purports to establish the truth of its contents. [ 27 ] However, the firsthand observations of the affiant, seeing the mother with the child exiting from a minivan at the residence of one Ms. R.P., are very admissible. They are also very relevant to the society’s motion and to its argument that the grandmother had breached two conditions of the interim order, namely: (

a) allowing Ms. R.P. to babysit D.; and (

b) allowing the mother access to D. not supervised by a society approved supervisor.

[ 28 ] With respect to babysitters, the order of October 13, 2010, contains no conditions or restrictions as to whom the grandmother could engage as a babysitter for D.. According to the evidence of the grandmother, this topic had come up with the kinship worker of the society (Ms. L.D.) and the recommendation that the grandmother had received was to “use your own discretion”. Her response to the society’s allegation is that her hiring of Ms. R.P. (or of her cousin, Ms. L… F.) was a reasonable exercise of her discretion as the caregiver and custodian of D. on January 22, 2011.

She denies that she contravened any court ordered condition in doing so. [ 29 ] I agree with her. A person to whom care and custody of a child has been entrusted by court order has the right and responsibilities of any child custodian and caregiver. To hire a babysitter for temporary care is well within the scope of these rights and responsibilities. Where, as in this case, the grandmother had the child subject to specific supervision order conditions, her exercise of those rights and responsibilities was subject to those conditions. There was no limiting condition in this case.

Nor is selection of babysitters something that can be manipulated to fit under any of other conditions in the grandmother’s order. [ 30 ] Of particular note is the fact that the conditions of the order were those that were sought by the society. It chose the conditions, and it chose the wording of each of them. Moreover, it included seven conditions [paragraph 1(

j) to 1(p)] to the grandmother’s order that were in addition to the conditions contained in the previous order that had related to the maternal cousin, Randi. None of these dealt with babysitters or alternate caretakers. [ 31 ] The society had an opportunity to reply to the responses of the grandmother and the mother. In fact, it did file a subsequent affidavit (at tab 27). It said nothing further about this January 22, 2011 incident.

It did not dispute what the grandmother had said she had received in response to her inquiries about babysitters. [ 32 ] Finally, the society recounts a verbal dispute with the mother on January 22, 2011 in which the affiant society worker and the mother disagreed on whether Ms. R.P. was approved or was not approved to babysit D.. If the purpose of this part of the evidence is to establish the exclusive right of the society to pre-approve babysitters for the child D., I decline to make that inference. In fact, Ms.

R.P. was neither approved nor non-approved, as approval by the society was not contemplated by the terms of the grandmother’s order. As a postscript, I accept the grandmother’s evidence that she was totally unaware of any concerns that the society may have had with respect to the suitability of Ms. R.P. as a babysitter. In fact, the evidence suggests that Ms. R.P. is the caregiver to two children of her own, a fact of which the society was well aware.

The fact that the society may express a concern about a person as a babysitter does not, in the absence of compelling evidence, to support such concern, lead to any corresponding judicial inference. [ 33 ] The more critical allegation of the society is that the grandmother, in permitting the mother to accompany Ms. R.P. and D. in Ms. R.P.’s minivan, breached condition 1(

j) of the grandmother’s supervision order. In this, I agree with society. [ 34 ] The grandmother’s contention is that the mother’s presence in Ms. R.P.’s minivan was in the nature of “catching a ride home” rather than “unsupervised access” or not access supervised only “by a person previously approved by the society”. This position of the grandmother is somewhat disingenuous. Although a drive in a minivan from Second Avenue to Cathcart Street is not the typical context for maternal access contemplated by the order, it is nonetheless “access” by the mother to the child in the broader sense of that word’s meaning.

Although it may have been more convenient for the mother to share a ride, it was clearly contrary to the society’s expectations of the grandmother (as is amply demonstrated by its response of apprehending D.). It is also contrary to how a reasonable person would interpret paragraph 1(

j) in the circumstances of this case, prevailing at that time. [ 35 ] Although I conclude that the grandmother contravened a condition of the supervision order, I do so only to the extent of the mother sharing a ride with Ms. R.P. with D. present. I do not accept that the mother was left alone with D., or that there was any intention on the part of anyone that D. would be brought to the mother’s home and spend time there with the mother. In fact, I accept the uncontradicted evidence that, from the time the child left the grandmother’s home that day, he was being babysat by Ms.

R.P. up to the point of apprehension. Moreover, I accept the grandmother’s narrative, corroborated in part by the evidence of Ms. L… F., of the plans for the care of the child by Ms. R.P. in her home, and later that day, by Ms. L… F. at the grandmother’s home. [ 36 ] Does the grandmother’s non-compliance with the supervision order condition warrant the change in care and custody sought by the father (at tab 26) and by the society? [12] My conclusion is that it does not. There are several reasons for this. [ 37 ] This breach of condition by the maternal grandmother is a singular one.

Moreover, while it was a poor decision, it was by no means egregious. It was not a situation where the mother would be alone with the child with no one else present. The fact is that nothing happened to D. during the ride, and it is reasonable to expect that nothing of concern would have happened for the rest of that day. It is a fair inference that the grandmother now has a much-heightened awareness of who can or cannot be present with the child at any given time.

In addition, if there is a need for clarification of condition 1(j), this can be done by judicial amendment. [ 38 ] As for other bases for removing the child from the grandmother’s care, I have found the major allegations of the society to be unsubstantiated by admissible evidence. [ 39 ] Placement with the maternal grandmother is placement with kin, in this case, in direct line of consanguinity (blood relationship). This child has been in care of maternal family “kin” exclusively, but for the time in care following apprehension. The mother has been a constant throughout the child’s short life to date.

Her relationship with the child has been through access visits, and, so far as the evidence relates, the mother-child relationship is a positive one, without parenting deficits, or concerns, and with a demonstrated commitment. The mother’s access would, in my view, be far superior with the child in care of the grandmother than in the care of the father or of the society. [13] The continued grandparental care and custody would be a continuation of the status quo and would avoid a major disruption for the child.

These are all “best interests” considerations. [ 40 ] The court should be slow to change a custodial situation as a general rule, and particularly so where it seems to be working rather well. In the case of D., there is no evidence that he has suffered in any way in the grandmother’s care. In fact, it appears that the child had done well there. Moreover, it appears that maternal access at the grandmother’s home has been relatively problem free.

Moreover, the father has also been extended fairly generous access by the society, even with D. residing with his grandmother. [ 41 ] As for choosing babysitters, this has surfaced as an area of possible concern. If so, this can be addressed by an appropriate

and reasonable supervision order condition. [ 42 ] I am not sure that the society’s evidence has been sufficient to cross the threshold of a material change in circumstances. Even if it has, it does not necessarily follow that care and custody must be changed. Nor does it follow that it must be changed in the manner advocated by the society and by the father.

In this case, the grandmother may retain care and custody but the interim supervision order conditions can be tightened up to prevent any misunderstandings, and hopefully forestall any future non-compliances. [ 43 ] Although my decision is based mainly on failure of the society to satisfy me that a change of care and custody is required, or even desirable, in D.’s best interests, there are also reasons why I would be reluctant at this time to change interim care and custody in favour of the father. In abbreviated form, these include: (

a) The father already has two children in his care, one of which is a 12-year-old daughter about whom I know next to nothing. (

b) The father, and the father’s child Mr. J.B.. (from another relationship) have both tested positive fairly recently, albeit in low concentrations, for cocaine, with speculation rather than explanation for such results. (

c) The father has, in the society’s words, a criminal history that is “lengthy and violent”. He is currently charged with a domestic assault (on the mother) which is next before the criminal court in June 2011. What the outcome of that charge will be is unknown. (

d) The father is prone to involving himself in inappropriate relationships. For example, with the mothers of his children Mr. J.B.. and D., both of which mothers he knew to be drug addicts. The society’s evidence is that he has formed other relationships with questionable women and he has a propensity to hide these relationships from the society. He has apparently sought out such relationships because of loneliness, and in the case of the mother of D., had asked her to come to his residence when he had both children with him, a clear violation of the conditions that applied to him that were in effect at the time (

e) The father is a relatively recent convert from the school of drug abuse. A year ago, he was testing positive for illegal drug use. He has admittedly turned his life around. However, he is a single parent with a full-time work, with responsibilities for two children acquired only within the past year or so. (

f) The father’s plan for D. is six days per week in daycare. This is less desirable from section 37(3) considerations than being in the care of kin such as his grandmother, for such lengthy periods of time. (

g) The father did not participate in the child protection case involving D.. It appeared that his paternity was denied by the mother at that time. However, he did not come forward to seek inclusion as a statutory party in that case, and even in the present case, even though it appears that he knew he was D.’s biological father. This reticence on his part seems to have been because of a perception that he might prejudice his case involving his child Mr. J.B.. Although this may not be well developed in the evidence, it raises some concerns about the father’s commitment. (

h) The father has filed no evidence of his own. 4 May 2011 Justice John Kukurin Ontario Court of Justice (

c) shall apply to the court for a review of the child’s status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for society supervision. (

a) is entitled to the same notice of the proceeding as a party; (

b) may be present at the hearing; (

c) may be represented by a solicitor; and (

d) may make submissions to the court, 1. A case about custody of or access to a child. 2. A child protection case. 3. A secure treatment case (Part VI of the Child and Family Services Act ).

(

a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true;