Children’s Aid Society of Toronto v. K.D., 2011 ONCJ 55

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 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.— 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.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85. —

(3) Idem. — 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. Toronto (North York) Registry No. C51183/10-A5 DATE: 2011·II·07 CITATION: Children’s Aid Society of Toronto v.

K.D. , 2011 ONCJ 55 ONTARIO COURT OF JUSTICE IN THE MATTER OF a motion to vary an interim care and custody order under subsection 51(6) of the Child and Family Services Act , R.S.O. 1990, c. 11, respecting Isaiah D. (born on 14 July 2001) and Joshua D. (born 16 March 2005), children in need of protection; BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — KERRI D. and RICHARD B., Respondents.

Before Justice Robert J. Spence Heard on 31 January 2011 Reasons for Judgment released on 7 February 2011 STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. 11 [as amended], subsection 1(1), subsection 1(2), subclause 37(2)(b)(i), subsections51(2), subsection 51(6), subsection 57(1), subsection 64(8) and subsection 65(1). CASES CITED Catholic Children’s Aid Society of Toronto v. A. (Kristina) et al., 2008 ONCJ 801, [2008] O.J. No. 3582 (Ont. C.J.). Catholic Children’s Aid Society of Toronto v. F. (Laura) and M. (Daniel), , 119 A.C.W.S. (3d) 605, [2002] O.J.

No.5120, 2002 Cars​well​Ont 4513 (Ont. C.J.). Children’s Aid Society of Algoma v. S. (April) and W. (Thor) (No. 2), 2004 ONCJ 24, [2004] O.J. No. 1726, 2004 Cars​well​Ont 1631(Ont. C.J.). Children’s Aid Society of Halton Region v. S. (Kim) and S. (Hans), 2004 ONCJ 76, 131 A.C.W.S. (3d) 67, [2004] O.J. No. 2512, 2004Cars​well​Ont 2398 (Ont. C.J.). Children’s Aid Society of Simcoe County v. B.(B.J.) and C.(D.), , 20 R.F.L. (6th) 74, [2005] O.J. No. 3907, 2005Cars​well​Ont 4412 (Ont. Fam. Ct.). Children’s Aid Society of Toronto v. D.-R. (Lana) and R. (Martin), 2007 ONCJ 706, 170 A.C.W.S. (3d) 363, [2007] O.J.

No. 5512 (Ont.C.J.). Children’s Aid Society of Toronto v. L. (Landys) and L. (Edward), [2003] W.D.F.L. 444, [2003] O.J. No. 3281, [2003] O.T.C. 755, 2003Cars​well​Ont 3154 (Ont. S.C.). Children’s Aid Society of Toronto v. M. (Douglas) J. (Gabrielle) and M. (Leila) (No. 2), , 111 A.C.W.S. (3d) 85, 15O.F.L.R. 125, [2002] O.J. No. 243, 2002 Cars​well​Ont 154 (Ont. C.J.). Children’s Aid Society of Toronto v. M. (Douglas), J. (Gabrielle) and M. (Leila) (No. 5), , 122 A.C.W.S. (3d) 1072,[2003] O.J. No. 1947, 2003 Cars​well​Ont 1882 (Ont. C.J.). Children’s Aid Society of Toronto v. S. (Tasha), 2009 ONCJ 491, [2009] O.J.

No. 4525, 2009 Cars​well​Ont 6588 (Ont. C.J.). Family and Children’s Services of Rainy River v. B. (Courtney), G. (Jesse) and Big Grassy First Nation, 2009 ONCJ 111, 176 A.C.W.S.(3d) 753, [2009] O.J. No. 1090, 2009 Cars​well​Ont 1367 (Ont. C.J.). Kenora-Patricia Child and Family Services v. P. (Michelle), P. (Kai) and S. (Brian), 2004 ONCJ 78, 131 A.C.W.S. (3d) 676, [2004] O.J.No. 2514, 2004 Cars​well​Ont 2399 (Ont. C.J.). Samantha Levenson ....................................................................... counsel for the applicant society Roma S.

Mungol .......................................................... counsel for the respondent mother, Kerri D. Tammy W.-Y. Law .................................................... counsel for the respondent father, Richard B. B. Helen Miller, agent for Lisa A. Johnson ............ counsel for the Office of the Children’s Lawyer, legal representative for the children JUSTICE R.J.

SPENCE:— 1: NATURE OF THE CASE [1] The Children’s Aid Society of Toronto (“society”) has brought a motion to vary an existing temporary supervisionorder, seeking to bring the two children, Isaiah D., age 9 years, and Joshua D., age 5 years, into the care and custody of the society. Thechildren currently live with the mother under that temporary supervision order. Both the mother and the father[1] oppose the society’smotion. 2: THE ISSUES

[ 2 ] There are two issues: 1. At the protection application stage, what is the test to vary a temporary care and custody order where there has previously been a finding that the children are in need of protection? and 2. Should the existing temporary order be varied by requiring these two children to be brought into care? 3: BACKGROUND [ 3 ] For the purpose of this motion, the salient background facts can be summarized fairly briefly. The society had been attempting to work with the parents on the issues of domestic violence since about June 2008.

However, the domestic violence continued unabated, including incidents resulting in criminal charges against the father. Despite this, the mother opted to maintain her contact with the father. Finally, in June 2010, the society commenced a protection application, seeking a supervision order with the mother, with certain conditions. [ 4 ] On 10 June 2010, Justice Harvey P. Brownstone made an order placing the children in the temporary care and custody of the mother subject to four terms and conditions: 1.

Mother and the children not to remain in their current residence and will temporarily change daycare and school, and live in a residence approved by the society; 2. Mother not to allow father to have contact with the children, unless approved in advance by the society; 3. Mother to co-operate with the society by signing consents to release information, be available for announced and unannounced visits, and allow the society workers to meet privately with the children; and 4.

Mother and children to attend counselling for victims of domestic violence. [ 5 ] On 11 January 2011, the parties attended court and filed a statement of agreed facts (“SAF”), agreeing to some of the history of domestic violence. They also agreed to the statutory findings in respect of the children and, as well, to a finding that both children were in need of protection, pursuant to subclause 37(2)( b )(

i) of the Child and Family Services Act , R.S.O. 1990, c. 11, as amended (“Act”). I made those two orders. The SAF also sought a six-month supervision order with the mother, but I did not make that dispositional order, as the lawyer representing the children requested an opportunity to first speak with her clients. I adjourned the matter to 22 February 2011. [ 6 ] On 26 January 2011, the society amended its protection application. Instead of requesting a six-month supervision order, the society was now seeking a six-month society wardship order.

At the same time, the society brought the within motion seeking to have the children placed in the temporary care of the society, pending the hearing of the amended protection application. [ 7 ] In support of its motion, the society alleges that the mother has breached the first two terms of the temporary supervision order, first by moving into a residence not approved of by the society and, second, by allowing the children and the father to have contact with each other without the society’s approval.

There is agreement by the parents that they did breach these two terms. 4: ISSUE 1 — The Test to Vary the Temporary Order of 10 June 2010 [ 8 ] At the outset of its argument, the society submitted that the test for a variation was based solely on what was in the “best interests” of the children. The rationale for such a test, according to the society, is that the court had previously made a finding that the children were in need of protection, on 11 January 2011. [ 9 ] On behalf of the father, Ms.

Law argued that the society’s motion was a motion to vary under subsection 51(6) of the Act and, accordingly, she argued, the test was whether there had been a material change in circumstances since the making of the temporary supervision order on 10 June 2010. [ 10 ] Any authority the court has to make a change in the children’s temporary placement, must ultimately emanate from the Act itself. In other words, there must be a statutory authority upon which the society is relying in order to seek the intended relief. [ 11 ] As this is a child protection case, I must look to

Part III of the Act. There are a number of sections in

Part III that deal with the making of custody orders. I first turn to subsection 57(1) [my emphasis]: 57. Order where child in need of protection.—

(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under

section 57.1, in the child’s best interests : 1. Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months. 2. Society wardship — That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

3. Crown wardship — That the child be made a ward of the Crown, until the wardship is terminated under

section 65.2 or expires under subsection 71(1), and be placed in the care of the society. 4. Consecutive orders of society wardship and supervision — That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. [ 12 ] This

section of the Act does employ a “best interests” test before the court makes a dispositional order. However, it is apparent from this

section that the various options available to the court are in respect of final orders only, not temporary orders. In the instant case, the society is seeking to vary a temporary order, pending disposition of the amended protection application. Accordingly, I conclude that this

section has no applicability to the society’s motion. [ 13 ] Subsection 64(8) provides [my emphasis]:

(8) Interim care and custody. — If an application is made under this

section , the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody. And, subsection 65(1) of the Act provides [my emphasis]: 65. Court may vary, etc .—

(1) Where an application for review of a child’s status is made under

section 64 , the court may, in the child’s best interests , (

a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order; (

b) order that the original order terminate on a specified future date; (

c) make a further order or orders under

section 57; or (

d) make an order under

section 57.1. [ 14 ] Both of the foregoing subsections employ a “best interests” test, in the former case, when the court is varying a temporary order, and in the latter case, when the court is varying a final order. However, both of these subsections apply only to orders made under

section 64, namely, a status review. In the instant case, no final dispositional order has been made, and the parties are not yet into a status review proceeding. They are still litigating within a protection application (amended). Therefore, this

section does not apply to the society’s present motion. [ 15 ] The only other statutory provision that deals with custody in a child protection case, is found in subsections 51(2), and following, which state [my emphasis]:

(2) Custody during adjournment.— Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child, (

a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; (

b) remain in or be returned to the care and custody of the person referred to in clause ( a ), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; (

c) be placed in the care and custody of a person other than the person referred to in clause ( a ), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or (

d) remain or be placed in the care and custody of the society, but not be placed in, (

i) a place of secure custody as defined in

Part IV (Youth Justice), or (ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety. . . .

(6) Power to vary.— The court may at any time vary or terminate an order made under subsection (2). [ 16 ] In the present case, the society’s amended protection application is on adjournment. It is in that context that the society now comes before the court seeking to vary the existing temporary order made by Justice Brownstone on 10 June 2010. The court’s power to vary that temporary order is found in subsection 51(6). And the power to vary that temporary order is discretionary (“may . . . vary”).

There are no criteria set out in subsection 51(6) for the court to employ in deciding when to exercise its discretion. [ 17 ] Subsections 1(1) and (2) of the Act state [my emphasis]: 1. Paramount purpose.—

(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children .

(2) Other purposes.— The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are: 1. To recognize that, while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent. 2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered. . . . [ 18 ] Thus, the overarching philosophy of the Act is that whatever orders the court makes, it should take into account the “best

[18] Thus, the overarching philosophy of the Act is that whatever orders the court makes, it should take into account the “bestinterests, protection and well being of children” and, at least in part, to further those purposes in the “least disruptive” manner. [19] I propose to consider a number of cases in order to assist me in determining whether a specific test for varying atemporary order has evolved from the case law. [20] In the oft-cited case of Catholic Children’s Aid Society of Toronto v. Laura F. and Daniel M., , 119A.C.W.S. (3d) 605, [2002] O.J. No. 5120, 2002 Cars​well​Ont 4513 (Ont.

C.J.), Justice Heather L. Katarynych had occasion to considerthe operation of subsection 51(6). At paragraph [10], she stated [my emphasis]: [10] No statutory criteria are provided for the exercise of the court’s power to vary an interimorder. It is an exercise of judicial discretion, dependent on a variety of factors, all of which must bebrought to bear on the motion evidence to ascertain whether a variation of the “status quo” makescommon sense within the statutory scheme provided by

Part III of the Act for child protection.[2] At paragraph 14, she stated [my emphasis]: [14] I disagree with the society’s submission that my decision on this variation motion is simplya matter of deciding what is now in the child’s “best interests”, given the length of time that this childhas spent in interim society care. . . . [3] [21] In Children’s Aid Society of Toronto v. Landys L. and Edward L., [2003] W.D.F.L. 444, [2003] O.J. No. 3281, [2003]O.T.C. 755, 2003 Cars​well​Ont 3154 (Ont. S.C.), Justice Susan G. Himel considered what test, if any, ought to be applied in dealing witha variation motion.

At paragraph [42], she stated [my emphasis]: [42] The statute does not provide that the moving party on a variation motion must demonstrate amaterial change in circumstances. However, in order to give effect to the statutory scheme, andrecognizing that stability and continuity for children is desirable, it is appropriate to impose a thresholdtest of material change in circumstances. . . . [22] This threshold test of material change (or at least some change) in circumstances has been employed by a number of othercourts. See, for example, Catholic Children’s Aid Society of Toronto v.

Kristina A. et al., 2008 ONCJ 801, [2008] O.J. No. 3582 (Ont.C.J.); Children’s Aid Society of Algoma v. April S. and Thor W. (No. 2), 2004 ONCJ 24, [2004] O.J. No. 1726, 2004 Cars​well​Ont 1631(Ont. C.J.); Kenora-Patricia Child and Family Services v. Michelle P., Kai P. and Brian S., 2004 ONCJ 78, 131 A.C.W.S. (3d) 676,[2004] O.J. No. 2514, 2004 Cars​well​Ont 2399 (Ont. C.J.); Children’s Aid Society of Simcoe County v. B.J.B. and D.C., , 20 R.F.L. (6th) 74, [2005] O.J. No. 3907, 2005 Cars​well​Ont 4412 (Ont. Fam. Ct.); Children’s Aid Society of Toronto v.

Lana D.-R. and Martin R., 2007 ONCJ 706, 170 A.C.W.S. (3d) 363, [2007] O.J. No. 5512 (Ont. C.J.); Family and Children’s Services of RainyRiver v. Courtney B., Jesse G. and Big Grassy First Nation, 2009 ONCJ 111, 176 A.C.W.S. (3d) 753, [2009] O.J. No. 1090, 2009 Cars​-well​Ont 1367 (Ont. C.J.); Children’s Aid Society of Toronto v. Douglas M., Gabrielle J. and Leila M. (No. 2), , 111A.C.W.S. (3d) 85, 15 O.F.L.R. 125, [2002] O.J. No. 243, 2002 Cars​well​Ont 154 (Ont. C.J.); and Children’s Aid Society of Halton Regionv. Kim S. and Hans S., 2004 ONCJ 76, 131 A.C.W.S. (3d) 67, [2004] O.J.

No. 2512, 2004 Cars​well​Ont 2398 (Ont. C.J.).[4] [23] Justice Himel also stated, at paragraph [33] [my emphasis]: [33] The purpose of the CFSA, is stated in

section 1 which says, “The paramount purpose of thisAct is to promote the best interests, protection and well being of children.” It is also acknowledged thatchildren’s services should be provided in a manner that provides the least disruptive course of actionthat is appropriate for the child. Section 51(6) must be read in the context of these principles. . . . [24] In Children’s Aid Society of Toronto v. Tasha S., 2009 ONCJ 491, [2009] O.J. No. 4525, 2009 Cars​well​Ont 6588 (Ont.C.J.), I was faced with a motion to vary a temporary order under subsection 51(6).

At paragraph [6], I stated [my emphasis]: [6] Subsection 51(6) of the Act states that a “court may at any time vary . . . an order made undersubsection (2).” The power to vary is discretionary. There is case law that concludes that, before avariation order is made, the party seeking the variation must first meet the threshold test of establishingthat there has been a material change in circumstances since the making of the last order. . . . I then went on to say, at paragraph [9] [my emphasis]: [9] At all times, the court must be guided by what is in the best interests, protection and wellbeing of the children.

These considerations may well change over time, particularly as a case may dragon from temporary care motion to trial. . . . [25] References to the primary and secondary purposes set out in

section 1 of the Act have also been made by other courtshearing motions to vary. See, for example, Children’s Aid Society of Toronto v. Douglas M., Gabrielle J. and Leila M. (No. 2), supra,and Children’s Aid Society of Toronto v. Douglas M., Gabrielle J. and Leila M. (No. 5), , 122 A.C.W.S. (3d) 1072,[2003] O.J. No. 1947, 2003 Cars​well​Ont 1882 (Ont. C.J.). [26] What do I conclude from these cases?

The cases reveal a judicial inclination first to ask whether there has been a real ormaterial change in circumstances before then to move on to decide whether the court ought to exercise its discretion to vary the existingorder. The need for a material change in circumstances may seem like an “invented” test, but it makes good common sense, when oneconsiders the importance of not lightly disrupting the status quo living arrangements for children, particularly when those livingarrangements are stable and relatively risk-free.

[ 27 ] But we also see repeated references to the “paramount purposes” of “best interests, protection and well being”, and the necessity of implementing those purposes in the “least intrusive” manner. [5] [ 28 ] So what is the “test”? First, what the test is not, is “best interests” simpliciter . If I were to accept the society’s position that the test is “best interests”, the following scenario could materialize.

On day 1, the court makes a temporary supervision order with the parents; on day 10, the parties agree to a finding in need of protection, but no final disposition; and then on day 11, the society comes back to court seeking an order that the children be brought into care, without any change in circumstances whatsoever , arguing that such an order would be in the “best interests” of the children. This strikes me as entirely illogical, given the thrust of

Part III of the Act. [ 29 ] As well, from all of the foregoing, and bearing in mind the stated purposes of the Act, I have concluded that the tests of “material change in circumstances”, alone, or “paramount purposes” of the Act, alone, do not adequately capture the intent of

Part III of the Act. Rather, all of those considerations are germane. And because of that, I have decided on the following four-step path — a flow chart, if you will — that takes into account all of the necessary considerations that must be examined on a motion to vary: 1. Has there been a material [6] change since the making of the previous temporary order? 2. If so, is that material change risk-based? In other words, is it a change that makes it either more likely, or less likely, to affect the risk of harm to the child? 3.

If the material change is risk-based, is it significant enough to vary the child’s placement, having regard to the length of time that the status quo has been in place and how soon trial is likely to occur? 4. In considering step number 3, is the requested variation proportional to the change in circumstances, having regard to the court’s mandate to be guided by the paramount purposes, as stated in subsections 1(1) and (2) of the Act? [ 30 ] These four steps are not individual factors to be weighed one against the other, or considered as a collective stew, but rather, a discrete step-by-step path to follow.

If the court cannot answer “yes” to each of these steps then, in my view, it is not appropriate to move on to consider whether the court should exercise its judicial discretion in favour of the requested variation. [ 31 ] As well, I wish to make it clear that given the foregoing statutory analysis, this approach pertains to any variation of a temporary placement order, irrespective of the fact that the society may have previously obtained a finding that the children are in need of protection.

In other words, the fact of the finding in need of protection does not, by itself, change the test that the society must meet, as the order continues to remain “custody during adjournment”. [7] 5: ISSUE 2 — Should the Requested Variation Be Made? [ 32 ] There is no question that the mother and father collectively breached the first two terms of the temporary supervision order. [ 33 ] I turn to the first condition, namely, the requirement that the mother not remain in her then-current residence and that she move to a residence approved by the society.

In fact, following Justice Brownstone’s order on 10 June 2010, the mother continued to remain in her residence; however, it is important to note that the society worker approved of the mother’s inaction, as the father was still in custody and, accordingly, he did not present a risk to the family. Further, the society told the mother that she could continue to remain in her residence until the father was released from jail. He remained in jail until on or about 4 November 2010. [ 34 ] Immediately upon the father’s release from jail, the society advised the mother of this fact.

The society further advised the mother that, according to the supervision order, she needed to find a new place to live. The mother became argumentative and unco- operative and, as a result, the society began to prepare a motion to bring the children into care. However, three days later, the mother moved into the maternal grandmother’s home. This satisfied the society and it decided not to pursue its motion. [ 35 ] On 12 November, the mother left the maternal grandmother’s home and moved into the home of a church friend so that she could be closer to the children’s school.

Although the society was not told of this move beforehand, in principle it was not opposed to the move. However, the society worker first wanted to speak to the church friend to satisfy himself that the friend fully understood what was going on. The mother remained at the friend’s house only a few days before returning to the maternal grandmother’s home, where she has remained since. [ 36 ] While the mother certainly breached this term of the supervision order, it was not a breach that exposed the children to risk of harm.

In both cases — the move to the grandmother’s home, and the subsequent move to the friend’s home (before moving back again to live with the grandmother) — the society took no strong objection to the move. From the society’s perspective, it was more about the fact that mother made these moves without first seeking approval, as required by the supervision order.

I certainly am not critical of the society for insisting on strict compliance with the supervision order, and I can fully understand the frustration that the worker must have experienced in trying to keep tabs of mother’s whereabouts, as well as the whereabouts of the children. [ 37 ] After moving into the grandmother’s house, the mother quickly discovered that it was taking her 1½ hours to get the children to school and, therefore, the move to the church friend’s house on 12 November was an attempt to alleviate this travel time for both herself as well as the children. [ 38 ] As a result, in the foregoing four-step analysis, I would answer “yes” to step one (whether there has been a material change), but “no” to step two (whether that change is risk-based). [ 39 ] I now turn to the second condition in the temporary supervision order, namely, the requirement that mother not allow the children to come into contact with their father unless approved in advance by the society. [ 40 ] The undisputed evidence is that, once the mother realized she would have to remain at the maternal grandmother’s home, she made arrangements with another parent [8] whose child attended at the same school and who lived a short drive from the

grandmother’s home, to take the children to school and return them to the grandmother’s home at the end of each school day. [ 41 ] The problem occurred when that parent was unable to do so on two occasions in January 2011. In both instances, the mother called on the father and asked him to help out by doing the pick-ups and returns. The father agreed to do so. On those two days, the father picked up the children from the grandmother’s home and returned them at the end of the day.

On neither occasion did he spend any time with the children or the mother, apart from the immediate time required to effect these transitions. [ 42 ] Given the history of domestic violence, I consider this breach to be the far more serious of the two breaches. The society was right to require a term in the temporary supervision order that the children’s contact with the father be controlled, in order to avoid any possibility of a conflict between the parents that could spill over onto the children.

The fact that a conflict did not occur on those two occasions can be regarded as strictly fortuitous. [ 43 ] Again, referring back to the four-step analysis, I would answer “yes” to each of steps one and two, and (arguably) [9] “yes” to step three (weighing the risk against the status quo ). [ 44 ] However, it is important to examine the other material facts that have changed since Justice Brownstone made his temporary supervision order on 10 June 2010.

On the charge of assaulting the mother, the father spent approximately 88 days in jail, before pleading guilty and being released with time served. [ 45 ] Since his release, he appears to have made some very important strides toward rehabilitating himself, including: 1. reporting regularly to his probation officer; 2. maintaining a separate residence from the mother, not spending overnights at the mother’s home and not attending at her home when the children are present; 3. together with the mother, enlisting the members of their church to assist in mediating issues that might arise; 4. enrolling in the Partner Assault Response program offered by the court and attending regularly every week for two hours in the evening; 5. without any assistance from the society, registering in a parenting program at Yorktown Family Services shortly after his release from jail, where he attends every week for two hours; and 6. attending tutoring at JVS Toronto to complete his high school diploma and attending classes twice each week for five hours each day. [ 46 ] The father attached to his affidavit four impressive letters of reference: 1. from Yorktown Child and Family Centre, which comments not only on the father’s attendance at the program, but states that he is “well mannered . . . and his involvement and perspective has sparked meaningful group discussion and helped facilitate great conversations for other young fathers to learn from”; 2. from GED and Literacy Upgrade Program, which confirms the father’s registration and attendance at the program and states that he has “enthusiastically participated during each of his tutoring sessions, and we can confidently conclude that he will complete all program components and successfully write the GED examinations”; 3. from JVS Toronto (employment counselling), which confirms that the father has been “consistently meeting” with the counsellor since December and that “during each appointment [he] has demonstrated clear goals and has been compliant with all instructions given to him” and further that the father has “attended various job fairs, workshops and info sessions” and that the counsellor has “witnessed his personal and professional growth”; and 4. from Counterpoint Counselling & Educational Co-operative Inc., confirming the father’s acceptance into the Partner Assault Programme, effective on 17 December 2010. [ 47 ] No doubt, it is still early days for the father on his road to rehabilitation.

It is premature to conclude that the children would not be at risk of harm were the mother and father to be together with one another in the presence of the children. The possibility of another domestic incident cannot be ruled out solely on the basis of the father’s efforts since his release from jail.

However, the court cannot but be impressed with the very significant steps that the father is taking on his journey to what everyone hopes will be a new and enlightened attitude toward his partner and an understanding of how domestic violence impacts on children — whether or not the children are physically harmed or even whether they are in the same room when that violence occurs. [ 48 ] The court certainly does not condone the mother’s willingness to allow the father to take the children to school and to bring them home on two separate days and to permit this to be done in an underhanded way by not contacting the society and explaining to the worker her difficult circumstances.

Nevertheless, the court must examine the totality of the circumstances surrounding this breach. The mother was indeed in a difficult situation. She had no one to take the children to school. And it was not simply a matter of having to endure a long travel time with the children. Rather, she herself had enrolled in school and was under a strong caution from the school not to be late for her classes. She asked the father to help out, in effect asking him to act as a mere functionary. She did all of this in the context of a father who had taken very significant steps toward self-improvement and rehabilitation.

And, at the end of the day, the children were not exposed to any harm. [10] [ 49 ] Returning to my four-step analysis, even if I were prepared to answer “yes” to step three [11] (weighing the risk against the status quo ), I would answer “no” to step four (the question of proportionality in the context of

section 1 of the Act). The children are living with their mother and their grandmother, and this is a family connection that ought not to be lightly tampered with. There is no evidence that the children are being other than well cared-for in that home. While the mother — and the father — definitely exhibited some bad judgment in respect of the no-contact term of the temporary supervision order, in my view the requested relief by the society does not meet the test of proportionality in step four of my analysis.

In my consideration of step four, I take into account the paramount purposes of the Act and, in particular, the need to implement those purposes in the “least disruptive” way. An order requiring the children to be brought into foster care is not, in my view, the least disruptive way to address what has occurred here.

6: CONCLUDING COMMENTS [ 50 ] For all of these reasons, I am dismissing the society’s motion. I am not making any changes to the temporary supervision order. However, I wish to convey my strongest possible caution to both parents. The terms and conditions that form part of the temporary supervision order are there for a reason. Both parents are ably represented by counsel and I have no doubt that, because of that capable representation, both parents understand the need for those conditions and why the court considers them to be an integral part of the supervision order.

I certainly encourage the father to continue along his present path. But until the court is satisfied that the father no longer poses a risk of harm to the children, his contact with them shall remain as is, namely, to be as approved by the society. And apart from this, the court needs to be satisfied that both parents are prepared fully to co-operate with the society and that they are at all times willing to be governed by court orders.

Until all of that happens, the society will continue to remain involved in the life of this family. [ 51 ] Finally, the message that I wish the parents to take away from these reasons for judgment is this: do not regard this outcome as some sort of “victory” over the society. Instead, consider it to be a warning by the court. I have accepted much of the parents’ evidence as sincere and having been presented to the court in good faith. It is my hope that the parents will not prove me to have been wrong, both for their sake and, more importantly, for the sake of their children.