P.(C.A.G.) v. J.(C.), 2010 ONCJ 175

Toronto (North York) Registry No. D40735/06 DATE: 2010·V·04 CITATION: P.(C.A.G.) v. J.(C.) , 2010 ONCJ 175 ONTARIO COURT OF JUSTICE BETWEEN: C.A.G.P. and S.D.P., Applicants, — AND — C.J. and M.A., Respondents. Before Justice Stanley B.

Sherr Heard on 30 April 2010 Endorsement inscribed on 4 May 2010 CUSTODY OF CHILD — Procedure — Who may apply — Non-parent — Clearance reports — Motion for exemption — Almost 4 years ago at time when natural mother and child resided with maternal grandparents, she and grandparents had consented to joint custody of child (now 8½ years old) — Last year, mother moved out and had little contact with child since then — Mother also left behind second child (now almost 2 years old) who had lived with grandparents her whole life — In protection proceedings against mother with respect to younger child, court had placed child with grandparents under supervision of children’s aid society which was willing to withdraw its involvement if grandparents secured order for custody of younger child — When grandparents applied to vary order so as to give them sole custody of older child and for custody younger child, court staff refused to accept their application because grandparents had failed to produce clearance documents from police and local children’s aid society as required by recent amendments to Children’s Law Reform Act — Grandparents made motion for court’s permission to be absolved of these requirements, arguing that these provisions did not apply to persons who already exercise custodial rights — Court exercised its discretion to grant grandparents’ motion but nevertheless required them to complete affidavit required by subsection 21(2) to provide court with evidentiary basis to make its decision — Where non-parent is not asking for custody in first instance but for variation of custody arrangement in which court had already decided that it was in child’s best interests to grant non-parent custody rights and to reside in non-parent’s home and where child was already residing in non-parent’s care since existing order was made, court saw no merit in requiring grandparents to submit to clearance checks — There could nevertheless be situations where court might exercise its discretion differently and still require such clearances, but this was not such case — Children’s aid society had extensive involvement with grandparents and supported their custodial claims to children — Court had previously entrusted these children in grandparents’ care — To require these grandparents to produce clearance checks would provide no value to court and would result in unnecessary delay and considerable additional legal costs for people of modest means, none of which would benefit or further protect children.

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended],

section 57.1 . Children’s Law Reform Act , R.S.O. 1990, c. C-12 [as amended],

section 21 , subsection 21 (1), subsection 21(2) ,

section 21.1 ,

section 21.2 ,

section 21.3 ,

section 29 CASES CITED King v. King , 2001 CanLII 35688 , 112 A.C.W.S. (3d) 119, [2001] O.J. No. 5594, 2001 Cars​well​Ont 4880 (Ont. C.J.). Simmons v. Simmons , 2007 CanLII 40221 , 160 A.C.W.S. (3d) 669, [2007] O.J. No. 3702, 2007 Cars​well​Ont 6152 (Ont. Fam. Ct.). Robert K. McQueen ............................................................. counsel for the applicant grandparents No appearance by or on behalf of respondent mother, C.J., even though served with notice

No appearance by or on behalf of respondent father, M.A., whose whereabouts were unknown JUSTICE S.B. SHERR ( endorsement ):— 1: INTRODUCTION [ 1 ] The recent amendments to the Children’s Law Reform Act , R.S.O. 1990, c. C-12 , as amended (the Act ), impose additional requirements on non-parents who apply for custody of a child before they can start their application.

These include: obtaining police record checks, reports from every children’s aid society where the non-parents have resided setting out whether they have had prior involvement with that society and a check whether they have ever been involved in any family law proceeding regarding children ( sections 21.1 , 21.2 and 21.3 of the Act ). [ 2 ] The applicants are the maternal grandparents of the child S.P. (the child), born on […] September 2001. The respondents are the child’s parents. [ 3 ] The applicants and Ms.

C.J. (the child’s mother) entered into a consent that was incorporated into a court order, dated 3 May 2006, which provided that the applicants and Ms. C.J. had joint custody of the child. At the time, the child was residing in the home of the applicants and Ms. C.J. lived with them. Mr. M.A. had disappeared and service was dispensed on him. [ 4 ] The applicants have prepared a motion to change the order of 3 May 2006, asking for sole custody of S.P.

They were unable to issue this motion to change as court staff informed them that they must first comply with the additional requirements set out in sections 21.1 , 21.2 and 21.3 of the Act (the additional requirements). [ 5 ] The applicants brought this matter before the court, by oral motion, for an order granting leave to issue the motion to change without the need to comply with the additional requirements. The applicants’ position is that these sections do not apply to them as they already exercise custodial rights to the child. 2: BACKGROUND [ 6 ] The child has always lived in the applicants’ home. Ms.

C.J. resided with the applicants until 27 March 2009. The child has remained in the exclusive care of the applicants since that time. Ms. C.J. has had little contact with the child since then. Mr. M.A. has had no involvement with the child. [ 7 ] Ms. C.J. had another child, E.J., born on […] June 2008. E.J. has also lived with the applicants her whole life. [ 8 ] On 10 August 2009, the Children’s Aid Society of Toronto (the society) commenced a protection application in this court seeking to find E.J. to be a child in need of protection because of concerns about her parents.

E.J. was placed in the applicants’ care subject to society supervision. On 22 September 2009, E.J. was found to be a child in need of protection and placed in the care and custody of the applicants for six months. [ 9 ] The society is content to terminate its protection proceeding once the applicants obtain a custody order for E.J. It has worked closely with the applicants and is satisfied that they are appropriate caregivers for both S.P. and E.J.

The applicants are in discussions with the society as to whether they will commence a domestic custody application for E.J. or have the society amend its status review application and seek a custody order in their favour pursuant to

section 57.1 of the Child and Family Services Act , R.S.O. 1990, c. C-11 , as amended. [ 10 ] S.P. is not subject to child protection proceedings. However, the applicants feel that it is in her best interests to change the existing court order to reflect the reality that they are S.P.’s only caregivers and that Ms. C.J. has little involvement in her life. 3: ANALYSIS [ 11 ] Subsection 21(1) of the Act permits a parent of a child or any other person to apply for an order respecting custody of or access to the child or any aspects of the incidents of custody to the child. [ 12 ] Subsection 21(2) of the Act sets out requirements for custody applicants as follows:

(2) Affidavit. — An application under subsection (1) for custody of or access to a child shall be accompanied by an affidavit, in the form prescribed for the purpose by the rules of court, of the person applying for custody or access, containing, (

a) the person’s proposed plan for the child’s care and upbringing; (

b) information respecting the person’s current or previous involvement in any family proceedings, including proceedings under

Part III of the Child and Family Services Act (child protection), or in any criminal proceedings; and (

c) any other information known to the person that is relevant to the factors to be considered by the court under subsections 24(2), (3) and (4) in determining the best interests of the child. S.O. 2009, c. 11, s. 6 . The additional requirements for non-parent custody applicants have been set out above.

[ 13 ] The applicants are bringing a motion to change the custodial terms of the existing order under

section 29 of the Act as opposed to bringing an original custody application under

section 21 . This raises the initial question whether the additional requirements apply to change motions. [1] [ 14 ] To answer that question, the court must examine the legislation in context. The amendments to the Act were made on the basis that it is in the best interests of children to ensure that the court have additional threshold information about families before it makes custody decisions and to provide safeguards against placing children in unsafe homes. There is a clear expressed intent that, when non-parents are applying for custody, the information threshold is greater.

Although the reality might be that many children are placed on agreement of parents with non-parents without court orders, the intention of the legislation is that, when non-parents are applying for a court order for custody of a child, the court must have this additional information before it endorses its approval of these arrangements through a custody order. Subject to my comments below, it seems to me that it is just as important to obtain this information on a motion to change, where a non-parent seeks custody, as it is on an originating application.

The intention remains the same: for the court to have threshold information about non-parents when they come to the court to ask for custody of a child. [2] [ 15 ] Where I do see a distinction is where the non-parent already has an order granting them custody rights to the child, the child has resided with the non-parent since the time of the existing order and the non-parent seeks a modification of the custody arrangement. That is the case here.

The non-parents are not asking for custody in the first instance (whether through application or motion to change), which would invoke the additional requirements, but rather are seeking to modify the form of custody, which relates to decision-making. In these situations, the court has already determined that it is in the best interests of the child to grant the non-parent custody rights and to reside in his or her home. [ 16 ] It does not appear to be the intention of the legislation to re-examine existing custody orders in favour of non-parents when cases are brought back to court on change motions.

If so, the legislation could have provided that the additional requirements apply when custodial non-parents are responding to a motion to change custody. That is not the case.

Examining the intention of the legislation (and in the absence of an explicit provision indicating that the additional requirements apply to this scenario), I see no merit in extending the additional requirements to change motions where the non-parents already have custodial rights and the child has been residing in the care of the non-parents since the existing order was made. [ 17 ] This does not preclude the judge from requiring the non-parents to provide some or all of the evidence set out in the additional requirements, if it is felt that this is in the best interests of the children. [ 18 ] Here, the best interests of the children would not be served by imposing these additional requirements on the applicants.

The society has had extensive involvement with this family due to Ms. C.J. The society is supportive of the applicants’ care of S.P. and E.J., wants them to have custody orders and has investigated the applicants, as required under the Child and Family Services Act well beyond the criteria set out in the additional requirements.

The applicants’ ability to care for the children has already been endorsed by the courts: by this court on 3 May 2006 when it granted them joint custody of S.P., and by the court in the child protection case concerning E.J., when it made the order placing E.J. in their care and custody. [3] S.J. has been in their care her whole life. The existing custody order has been in effect for four years. There is no evidence to suggest that any further information should be required from the applicants.

To require the applicants to comply with the additional requirements would provide no value to the court and would result in unnecessary delay and considerable additional legal fees for these applicants of modest means. None of this would benefit or further protect the child. [ 19 ] I do find that it is consistent with the intention of the legislation that the applicants complete the affidavit required by subsection 21(2) of the Act as this will provide the court with the evidentiary basis to make its decision. 4: THE ORDER [ 20 ] The applicants have leave to file their motion to change.

It is not necessary for them to comply with sections 21.1 , 21.2 and 21.3 of the Act as they already have custodial rights to the child who has been in their care since the making of the existing custody order.