Children’s Aid Society of St. Thomas and Elgin v. A.L.M.W., 2016 ONCJ 571

File No: 71/15 DATE: 2016-09-12 CITATION: Children’s Aid Society of St. Thomas and Elgin v. A.L.M.W. , 2016 ONCJ 571 ENDORSEMENT Applicant: Children’s Aid Society of St. Thomas & Elgin Respondents: A.L.M.W.; R.W.; K.F. Date of Hearing: July 28 & September 12, 2016 Counsel: Joyce Dittrich for the Applicant Allen Skuce for R.W. Keli Mercereau for A.L.M.W.

Greg Parrack for K.F. ____________________________________________________________________________ This is a motion by the maternal grandfather to vary an interim order dated June 1, 2015 which placed his grandchildren in the temporary care and control of the Applicant. The June 1 st order was made without prejudice to motions by the parents; however, neither has brought an individual interim placement motion. Background A.L.M.W. was born […], 1995. She resided in the care of her father, R.W. from about 2001 until 2013. R.W. is the moving party in the matter before me today.

A.L.M.W. is the biological mother of the subject children. The Applicant generally alleges R.W. and A.L.M.W. were involved with the London CAS in the late 90’s after which they then became involved with the Applicant in October of 2002 remaining under its supervision until February of 2005 and again between November of 2010 and June of 2012. In the course of both interventions, the focus was A.L.M.W. ’s behaviors at home, at school and in the community and R.W.’s response to the same. By 2012, it was obvious A.L.M.W. was exhibiting undefined mental health deficiencies.

On […], 2013, A.L.M.W. gave birth to S.F. after which she resided intermittently with her father or S.F.’s father, K.F. As a consequence of A.L.M.W. ’s issues during her childhood, the Applicant opened a file respecting S.F. and A.L.M.W. became a voluntary client. On […], 2014, A.L.M.W. gave birth to B.F.and the voluntary agreement continued. A.L.M.W. ’s mental health declined significantly following B.F.’s birth. She was given advice and direction by the Applicant and related professionals but she refused to enter into a treatment program.

A.L.M.W. had a delusional mistrust of any professional – whether her family doctor, a mental health counselor, a psychiatrist or the Applicant’s worker. In 2014, her delusions began to seriously impact her parenting. She avoided taking the children to see their doctor and she avoided attaching to them. In 2015, her mistrust of professionals deepened and the children’s medical needs were being ignored. As well, A.L.M.W. was clearly overwhelmed with the demands of two infants and she was faced with repeated crises in meeting their basic needs in the home.

In addition to her mental health issues, A.L.M.W. was a habitual user of marihuana and after the birth of her children, her use became chronic. As she was monitored by various professionals in the community, fears for the children’s physical and emotional safety due to chronic neglect heightened. S.F. and B.F. were apprehended from their mother’s care on May 28, 2015 and have been out of her care since. They remain in the same foster home they were taken to on the day of their apprehension.

The protection application sought findings under subsection 37(2)(b)(i) & (ii) and the disposition sought was an eight month society wardship term. The plan of care anticipated A.L.M.W. abstaining from the use of all non-prescribed drugs, seeking drug addiction counselling and, most critically, seeking and cooperating with mental health counsellors and treatment. Following the apprehension, A.L.M.W. entered into a new relationship and her use of drugs accelerated when she moved into more hard-core types. She did not seek out the recommended programs notwithstanding that they were laid out for her.

In the year following apprehension, her life’s circumstances were spiralling out of control.

Following apprehension, A.L.M.W. had access with her children three times weekly. The materials filed for this motion are not clearwhere she initially exercised her access; however, in October of 2015, it appears the visits occurred in her home and that R.W. supervisedthem. In November of 2015, the Applicant was considering a placement application from the paternal family in Owen Sound. In response,R.W. asked the Applicant to assess his home as a placement option. The Applicant undertook a kin assessment in response to R.W.’sapplication and reported to him on December 3, 2015. His application was rejected.

This kin assessment was filed as evidence on themotion today and will be extensively referred to below. A.L.M.W. ’s relationship with her father became troubled early in 2016 and on the uncontradicted evidence of the Applicant, A.L.M.W. asked to have the visits moved to the Applicant’s supervised access facility in January of 2016. The visits returned to A.L.M.W. ’s home in February of 2016 but they were supervised by CAS staff rather than R.W.. Unfortunately,her personal circumstances were deteriorating rapidly due to her mental health and drug use.

In March of 2016, the frequency andduration of her access was reduced. The Applicant continued to supervise her visits and R.W. visited once weekly for two hours. As a result of A.L.M.W. ’s deteriorating lifestyle, the Applicant amended the protection application on April 26, 2016 asking for Crownwardship without access. About this time, A.L.M.W. was clearly questioning whether she could parent in the future and, in the result,R.W. issued a motion for party status to present his plan for interim and permanent custody of the children.

Issues On the submissions, the issues will focus the test to be applied on R.W.’s motion; who bears the onus; the weight to be given to thecontent and conclusions of the December 3, 2015 kin assessment of R.W.’s home; the weight to be given to evidence of R.W.’s pastparenting; and, the weight to be given to the fact that the children have been in care for over a year. The Test R.W. and A.L.M.W. argue I should apply the test defined in subsection 51(2)(

b) suggesting that if terms can protect the children in hiscare, he is prima facie entitled to placement. The Applicant did not respond to these submissions directly but focused its attention on thestatus quo since the June 1, 2015 order and the results of the kin assessment. In my mind, the test is defined in subsection 51(6) of the Child and Family Services Act (hereafter “the Act”). The June 1, 2015 order issued without prejudice to the parent’s responses. Passage of a year would likely extinguish their withoutprejudice status; nevertheless, such status was not extended to R.W..

In the result, he is faced with varying an interim order. The onus under subsection 51(6) rests with the moving party and it entails two steps. The first step is to prove a material change in circumstances. On these facts, I am of the view the amendment of the protectionapplication to Crown wardship without access is a material change in the circumstances of the children and their extended family. R.W.is, on this fact alone, entitled to move onto the next step in the variation process. The second step is to prove that the order sought today is in the best interests of the children.

Had R.W. moved for placement immediately following the apprehension, the test for placement in his care would not have includedconsiderations under subsections 51(2)(a) & (b). Access to those provisions is restricted to persons “who had charge of the childimmediately before intervention under this Part”. On the facts tendered, R.W. clearly does not fit within this definition. R.W. would havebeen considered as a “person” in subsection 51 (2) (

c) assuming both parents’ consented; or, in his own right as a “relative of the child”as defined in subsection 51(3.1) which clearly fixes the test under both (2)(

c) and (3.1) as “best interests”. I will address best interests below. Status Quo Should the fact that the children have been in the care of the same foster family since May 28, 2015 be given any weight? From the perspective of the Applicant or the foster parents, the short answer is no. Until a Crown wardship order is made, circumstancesin the foster home, including length of stay, should not be used as a comparative in context of any placement decision: L.(R.) v.Children’s Aid Society of the Niagara Region, (ON CA), [2002] O.J. No. 4793, O.C.A.

Without any evidence of the children’s attachments to the foster home and its occupants, the general principles enunciated in CatholicChildren’s Aid Society of Toronto v. M.(C.), (SCC), [1994] 2 S.C.R. 165 cannot be applied today. Without similarinformation, the Court of Appeal’s reference at paragraph 9 in L.R. v. Children’s Aid Society of the Niagara Region, supra to its priordecision in G. (C.) v. C.C.A.S. of Hamilton-Wentworth respecting sensitivity to the circumstances of foster parents cannot be applied.

However, given that this is an interim motion, the passage of time will merit weight in a consideration of the children’s’ interest in beingmoved prior to a trial. This will be discussed below. Past Parenting Past parenting is at issue today on the Applicant’s submission that since the kin assessor is mandated to read all information respectingan applicant’s past parenting (see below), what is identified in the assessment report respecting past parenting achieves evidentiary value

due to s. 50 of the Act. With respect, I do not agree.

Section 50, as written, does not ascribe any evidentiary value to historic information just because it describes past parenting and the caselaw is clear that historic information is not automatically admissible for the truth of its content given that most of it will be in the form ofhearsay: Children’s Aid Society of London and Middlesex v. B.(B.), (ON SC), [2000] O.J. No. 235, S.C.J.; CatholicChildren’s Aid Society of Toronto v. L.(J.), [2003] O.J. No.1772, O.C.J.; Children’s Aid Society of Toronto v. L.(L.), 2010 ONCJ 48 , 83 R.F.L. (6th) 431, O.C.J.

When facing this sort of evidence, and in addition to basic hearsay submissions, the cases suggest that admissibility of this type ofevidence should also be argued in context of the relevancy of a fact to the proceeding at hand - meaning that the court must find ahistoric fact is logically connected to the present circumstances of the person applying for custody and that it is probative to the specificrisk issues before the court; the connection must be clear, not speculative.

The parties focused their submissions on the broad principles respecting past parenting evidence and hearsay; they did not focus theirsubmissions on the specific evidence sought to be tendered. In context of the Applicant’s submission, a kin assessor is not a “court” as the term is used in s. 50 and to leave any consideration ofrelevancy to her would result in an abdication of this court’s gatekeeping role to a party who is also preparing a potential piece ofevidence.

In any event, if the content of a kin assessment has any evidentiary value, it will be for the provisions regulating its preparationto identify such value, not s. 50. The Kin Assessment In submissions, counsel for the Applicant presented the findings and result of R.W.’s December 3, 2015 kin assessment as if it had beenprepared with the same care and attention demanded of a risk investigation and, in the result, suggests it should be treated similarly bythe court from an evidentiary perspective. Again, and with respect, I do not agree.

The kin assessment is an internal tool each society is mandated by statute to prepare to quickly identify red flags respecting a placementapplicant’s potential to harm a child and to facilitate an early identification of placement plans for children in its care which it can orcannot support. Every placement prospect must submit to the kin assessment process and I do not read any authority supporting a society’s ability tobypass the process in total.

It may have authority under s. 10 of the regulation to refuse to undertake an assessment or bypass a step butreasons for these decisions must be formally documented which, in itself, supports a feature of the process. There is no appeal process built into the regulation and it does not appear any of the internal review provisions in the Child and FamilyServices Act are available to an applicant who feels aggrieved by the process or decision. Assessors may be trained to follow the steps in the mandated form but otherwise, they have no particular expertise in weighing theinformation they receive.

The regulation does not identify a mandated standard for an assessment of the information received with theresult that the assessment of the information can become quite subjective. When the process as a whole is considered together with the factors just mentioned, it appears the process leading to the final reportlikely does not meet principles of fundamental justice and a court should not be bound by its result.

Since the process may fall short of meeting principles of fundamental justice, the evidence supporting rejection or approval merits noindependent weight unless it is confirmed by evidence at the hearing. The assessment report itself may be admitted at a hearing but onlyto bring context to the evidence tendered and submissions. It should never be admitted as an independent piece of evidence. In this motion, the Applicant filed the kin assessment as an exhibit to the assessor’s affidavit but which otherwise remained silent aboutthe document.

No one challenged the Applicant’s right to use the unsworn and unexplained assessment or the Applicant’s right to treat itas evidence; the only specific issue raised was bias. Barring a motion to strike, I am therefore required to address this document in lightof the submissions. The primary issue arising from the Applicant’s use of the assessment report is the manner in which the assessor applied the informationshe secured and whether the information secured is capable of supporting the decision reached.

There is no argument about theassessor’s use of current information; it arises in her use of the historic information. Ontario Regulation 206/00 defines the Procedures, Practices and Standards of Service for Children before they are placed in a homeother than with the person having charge before intervention. On the facts of this case, the provisions of

section 7 of the Regulationwould apply. Subsection 7(1) stipulates that “before a child is placed in the care of a relative…., the Society shall conduct an evaluation of theproposed plan for the care of the child to determine whether the person is capable of providing the child with a safe home environment”. The kin assessor is directed in subsection 7(2) what information he/she is to secure and from whom for the purpose of identifying a safehome environment. The regulation offers no help how the information is to be applied.

The assessment form, however, does offer somedirection where the information secured should be focused wherein it mandates the assessor to: 1. Review records that might identify past child protection “concerns” of every potential caregiver that are currently relevant;

2. Records that identify current child protection “concerns”; and, 3. Whether the identified “concerns” (past or current) require mitigation and further assessment or planning. The assessor is directed to consider these factors but neither the Regulation nor the form identify a standard to define her considerations. However, it is clear to me that the form directs the assessor to reach her conclusions based on the connection between the historic information she reads and the applicant’s existing parenting strengths and weaknesses in evaluating whether he can provide a child with a safe home environment.

Unfortunately, it appears the connection between history and current circumstances is subject to significant blurring by the use of the word “concern” in the form. A concern can be quite speculative and subjective depending how it is defined. In my experience, a “concern” is almost always used by social workers in context of a worry arising from something that previously occurred which might result in something inappropriate down the line.

What occurred in the past is rarely defined in a specific context and what inappropriate occurrence might ensue is rarely well defined or supported by a fact base drawn from probative evidence; it almost always boils down to a “gut feeling”. Nevertheless, once the three areas having potential impact on safety are considered, the assessor must define how they might impede a “safe home environment” to justify acceptance or rejection.

What is a safe home environment should be given liberal construction having regard to the purposes defined in s. 1 of the Act. “Environment” covers both the place and persons with whom the child will reside. Safe, in context of the regulation, means the home and caregivers do not presently pose a risk of harm as defined in subsection 37(2) of the Act. This is a minimum standard demanded by the Act itself. Unfortunately, this is the only clear standard and the regulation offers no assistance where risks are not presently identified but may arise in the future considering the applicant’s history.

In my mind, it is more than appropriate to reject an applicant who has not mitigated historic risks that were the subject-matter of a finding in need of protection. The reasons are self-evident. However, where a future risk is suggested based on an historic “concern” that did not clearly result in a finding, I am of the view these concerns should be left to terms to be defined in the order or agreement that will eventually bind the approved placement.

Whether terms are appropriate to cover all of the identified future considerations can be debated in court or with the society as an agreement is hammered out and, in the result, avoid the speculation that so frequently accompanies decisions based on concerns. How the assessor writes the report is a matter for his/her training; however, where the report is called into question in court, the Applicant must offer evidence from the assessor that clearly defines the link between the applicant’s present parenting strengths or weaknesses and the historic information if history is used to deny the application.

In this case, R.W.’s history was the basis for most of the assessor’s findings. Analysis: The Kin Assessment The kin assessor rejected R.W.’s application because of his historical involvement with children’s aid societies; current concerns; age of the children; vulnerability of the children; level of future support required from the Applicant; lack of insight into past parenting problems; inability to demonstrate significant change; lack of informal supports; and, his motivation for the application for placement.

Each of these factors will be considered individually in context of admissibility and relevancy and ultimate weight. Historical Involvement with Societies The assessor spoke of 10 investigations in the late 90’s by the London CAS after it opened a file for ongoing services for A.L.M.W. ’s parents. I have no idea how the assessor knew what the London records indicated since the assessment report states the London files had not yet been received (or even requested) by the time of its writing. The assessor offered only general information about these investigations.

It is not articulated how many of the 10 investigations were not confirmed or how any of the confirmed investigations might relate to R.W.’s present ability to parent S.F. and B.F.. Considering the hearsay that will likely define these records and considering the lack of clarity respecting what information the assessor had from London, the London information merits no weight.

This finding has nothing to do with the standard for admitting hearsay evidence but is focused on my sense that the assessor spoke with someone in London and the hearsay may now be at the third or fourth level which significantly diminishes its reliability. The assessor read R.W. and A.L.M.W. ’s St. Thomas files as she is mandated to do. She spoke generally of the number of St. Thomas investigations respecting R.W.’s parenting of A.L.M.W. . On the evidence before me today, there are only references to two investigations - in 2002 and 2010 – which resulted in some form of action.

All other references identified in the evidence today (the 2011 A.S.F.) were not confirmed. In the result, only the above two openings should have been considered relevant. The 2002 opening began with allegations of A.L.M.W. ’s inappropriate behaviors at school and quickly morphed into an investigation of what was termed as R.W.’s decision to expose A.L.M.W. to religious ceremonies which focused demons and exorcisms. A.L.M.W. presented as afraid of what she had witnessed.

The Applicant had R.W. assessed by a psychiatrist who reported in 2003 that his religious beliefs were “eccentric” but not delusional and his exposure of A.L.M.W. to these beliefs did not put her at risk of harm . The supervision order arising from this intervention was

terminated on February 10, 2005. In November of 2010, A.L.M.W. was charged with criminal offenses under the Y.C.J.A. and R.W. refused to allow her to return home given her refusal to follow his house rules. A Temporary Care Agreement was executed and A.L.M.W. was eventually sent to a specialized treatment home where her behaviors stabilized. She returned home under a supervision order in August of 2011 and this order was terminated in June of 2012.

Barring evidence to the contrary, the terminations in 2005 and 2012 support a finding today that the parenting deficiencies and risks leading to the prior supervision orders had been resolved to the Applicant’s satisfaction. If an assessor proposes to apply risks and/or parenting deficiencies that are followed by a termination order to an applicant’s present circumstances, her reasons for doing so must be clearly and cogently stated and just as clearly connected to the applicant’s present capacity to safely meet the needs of the children.

In the evidence today, there is no allegation that R.W. has resumed his eccentric religious practices since 2002 or that he presently attends any form of religious service. In this circumstance, there is no defensible reason to apply the 2002-05 circumstances to today’s evaluation. But for the current issues arising from the historical information identified below, the 2010–12 evidence does not clearly articulate a definition of R.W.’s parenting deficiencies at the time.

The evidence is, however, clear that A.L.M.W. ’s behaviors were out of control in 2010 and her conduct was likely the precursor to her present mental health issues. If R.W. experienced parenting problems in this timeline, they were those of a father raising a teenage daughter who was, at times, out of his control in the home. How this might relate to S.F. and B.F. now is unclear. In the result, I give the assessor’s conclusions respecting alleged 2010-12 parenting deficiencies no weight.

Age and Vulnerability of the Children Nothing in the evidence today or that was articulated in the kin assessment would support applying age and vulnerability against R.W.’s application for placement as there is no evidence about the children in the motion materials from R.W., A.L.M.W. or the Applicant. There is nothing remotely describing their needs in the kin assessment or a suggestion by the assessor that she considered them.

It is as if the children’s needs are seen by the parties to exist independent of the issues today or in the assessment when, by statute, all the issues to be decided today and in the assessment revolve around their needs and interests. As an example, S.F. has been diagnosed with spina bifida yet no one saw fit to tell me how this impacts parenting him on a daily basis. I heard about it only because the diagnosis was mentioned in passing by R.W. when he complained that the Applicant had not included him in training for changing S.F.’s catheter.

This is a life-changing diagnosis for S.F. and a potential game-changing diagnosis for anyone who proposes to parent him. It is disturbing that this evidence was ignored. In the result, the conclusion that R.W. cannot parent because of vulnerabilities or age merits no weight. Level of Future Support Required from the Applicant This heading is not specifically described in the form or the regulation. It may relate to future mitigation but as written, the assessor has inserted conclusions beyond those she is mandated to consider.

On my reading of the kin assessment, the conclusion that the Applicant would somehow be overwhelmed with service demands from R.W. appears to be rooted in the 2010-12 historical evidence where R.W. admitted he was struggling parenting a teenager with behavioral issues. It also appears to be connected to the assessor’s view that each historic investigation will likely be repeated in the future thereby creating additional demands on the Applicant’s workforce.

In my mind, R.W.’s 2010-12 admissions are referenced without a present context and any consideration of financial or workforce cost to a society is an absolutely irrelevant consideration in a kin assessment at this point in the litigation. I understand that the Legislature has emphasised speedy permanency planning in all child welfare cases where an apprehension occurs and that the Regulations may even promote the identification of those placements which should be cost efficient.

However, these considerations do not override the purposes identified in s. 1 of the Act; and, until the “other purposes” identified in subsection 1(2) are subsumed by the paramount purpose defined in subsection 1(1), applicants for placement deserve a fair and balanced assessment of their application without being penalized if they might ask for assistance in the future. We have not reached the point yet where subsection 1(2) is subsumed by subsection 1(1). The application before me may be 15 months old but it remains a protection application and a finding in need of protection has not occurred.

The fact that A.L.M.W. will not likely challenge finding does not alter this reality. A family placement merits weight at this point irrespective of the level of services that might have to accompany it. Lack of Insight into Past Parenting Problems Subject to the current concerns identified below, this conclusion is not supported either in the historic evidence or in the current evidence respecting the children and merits no weight. My reading of the kin assessment suggests the insight issue is, in essence, an opinion based on the assessor’s sense of the depth of the historic investigations by London and St.

Thomas rather than a focused conclusion weighed in consideration of the present needs of the children. If it is otherwise, I cannot figure it out.

It is important that any person who is called upon to make decisions in the child welfare industry remind him/herself that the pool ofrelatives/extended family/community who might apply for placement will often present with histories marked by some level of parentingweaknesses which, in turn, may or may not be adequately understood by the placement applicant.

In the result, we should not promote standards that seek to identify a perfect placement but one which presently does not run afoul of thethreshold for State intervention identified by the Court of Appeal in Re: D. (M.G.L.), (1984) (ON SCDC), 41 R.F.L.(2d) 176. This threshold is fairly low but I am of the view it is the standard a kin assessor should apply on a family placement application where afinding has not yet been made.

If the evidence supports the placement, the Applicant and parents can argue the terms needed to addressweaknesses that might exist now or might arise in the future in the interests of the children. Potential or undefined weaknesses should notbase a rejection. The above threshold will change as subsection 1(2) is subsumed by subsection 1(1). That threshold need not be discussed today. Inability to Demonstrate Significant Change R.W. demonstrated sufficient change in 2005 and 2012 to support the termination of the Applicant’s involvement.

In that regard, I amuncertain against what backdrop the assessor has considered change and what she means by “significant”. Lack of Informal Supports This conclusion did not appear to be specifically discussed in the assessment and I am unsure where the supporting information comesfrom. Further, there is no evidence showing how S.F. and B.F. might require any level of informal support. Current Concerns Three areas that are relevant to present parenting arise out of the historic evidence. The first is R.W.’s continued use of marihuana.

He told the assessor he has regularly used marihuana since he was 11; that he usedthroughout the 2002 and 2010 interventions; and, the reason he continues regular use is because “I just like to get high”. This is clearly an existing risk issue with a connection to his history. While we may be at a crossroads respecting the legality of one’s useof this drug, that does not change the fact that the purpose of the drug is to alter one’s mind or mood. If a person needs to do so on afrequent basis, this will always, barring evidence to the contrary, present as an impediment to safe parenting.

The second was R.W.’s historic decision to “buy” A.L.M.W. ’s compliance with his rules in the home by giving her marihuana. Thispractice clearly suggests a decision-making deficiency, particularly given that the practice continued after 2010 when the Applicantcalled R.W. out on the issue. He declared his embarrassment with his decisions but his embarrassment was not enough to halt thepractice. This practice does not have an immediate cause-effect safety impact in regard to S.F. and B.F. from the perspective of supplying themwith marihuana.

However, it presents a clear risk if R.W.’s plan is approved wherein R.W. must choose between the daily grind involvedin parenting and how he will address his parenting obligations when external (work and personal) demands on his time or patienceconflict with his parenting duties. The third area with current relevancy is how his relationship with A.L.M.W. is defined on an ongoing basis. Historically, he was seen togive into her demands easily and if this trend were to continue, A.L.M.W. could logically undermine his otherwise honest parentingefforts.

In the exit interview for the assessment, R.W. appears to admit that he applied for placement only to appease A.L.M.W. . If this isaccurate, the risk that she would interfere in his parenting of the children grows exponentially. A fourth issue is finances but is not directly connected to his history. R.W. easily has the income to support the addition of two children into his household but his debt load is appropriately identified as acurrent issue. His mortgage appears average but the monthly cost has not been identified. However, his credit card debt has beenidentified and it is high.

R.W. indicates he has taken part time work to pay down this particular debt. If the children are placed in hiscare, he will have to give up his weeknight work shifts to personally care for them or farm out this aspect of parenting to others. Best Interests At the close of submissions on the first day, I advised the parties that they needed to focus best interests and I adjourned to allow R.W. torespond to the current concerns identified in the kin assessment report. On the first day, best interests submissions were ignored in favorof submissions focusing subsections 51(2)(

a) and (b). Unfortunately, submissions on the second day focused best interests only incontext of the current concerns, not on the basis of the evidence as a whole. The difficulty faced by the parties in context of best interest submissions was, I suspect, due to the fact that no evidence was adduced byany of the parties specific to the children’s needs and interests with the result that focusing many of the subsection 37(3) criteria waseither impossible or speculative.

In particular, there is no relevant evidence to allow an assessment of subsections (3).1 & 2 although the Applicant focused these criteriain its second day submissions. However, its submissions were based on the fact that the spina bifida diagnosis merits weight on its own.This is rejected. I have no idea what limitations accompany the diagnosis generally or specific to S.F.. I have no idea what is involved inthe need to change a catheter. I have no idea what the daily demands of the child may be arising from the diagnosis or any special talents

required to meet them. R.W. did not mention the aforementioned criteria. He had not offered any of the type of evidence that based my decision to reject the Applicant’s submissions respecting S.F.’s needs. In regard to S.F., R.W.’s failure to give any space in his materials to the spina bifida diagnosis is fatal. I do not intend to make an order that might change after a trial without anything supporting R.W.’s present ability to manage this apparently special need. Subsections (3).3, .4, .9, 11 & .12 appear either irrelevant or difficult to apply at the interim stage. They merit no weight.

R.W. offered some brief comment about relationships so subsections 37(3).5 & .6 can be considered. From his perspective, R.W. claims a close relationship exists between the children and him because he supervised A.L.M.W. ’s access between October of 2015 and March of 2016 which also included some overnight visits. With respect, this conclusion remains unsupported factually. As set out above, it appears R.W. did not supervise the access over the entirety of the period alleged: he appears to have done so between October and mid-January but not afterward.

The frequency of his time with the children after January of 2016 is also unclear. It is not at all clear how often the overnight visits he referred to in his affidavit occurred before A.L.M.W. ’s access was reduced by the Applicant (as R.W. acknowledged) in December of 2015. This reduction appears to be earlier than the reduction acknowledged by the Applicant and this detracts from R.W.’s supervisory obligations which in turn support the relationship he alleges. Most importantly, he did not identify any parenting responsibilities he assumed during the supervised visits that he undertook.

The assessor identified that he and the boys played well together, that R.W. exhibited age-appropriate behavior during play and the boys enjoyed the play-time they spent with him. However, I am not prepared to attribute under-defined playtime activities to an ability to assume parenting responsibilities without better evidence. As indicated above, there is no evidence whatsoever defining the boy’s relationships with any of the adults in their lives? With this lack of evidence comes the impossibility to assess the impact on the children of either granting or refusing R.W.’s motion.

I recognise granting the motion would allow a relationship to develop but that must be weighed against the possibility the children would be uprooted again after a trial. There is no evidence that delaying a decision until trial will have any favorable or adverse consequence for the children. Social scientists universally agree that multiple moves experienced by children creates a real risk of behavioral or emotional issues in the future with the result that moving the children now should be based on clear evidence they will not likely be moved again after a trial.

For these reasons, a best interests assessment using subsections (3).5 & .6 will have to await a solid factual foundation at trial. The risk of a move following this motion and again following a trial is the main consideration under subsection (3).7 in context of continuity. The children are very young and certainty respecting their future is important to their emotional and developmental well- being. R.W. responded to some of the current issues outlined in the kin assessment but his responses were, mainly, peripheral or semi- unresponsive to the specific thrust of the current allegations.

In the result, there remains factual conflict that will only be resolved after cross-examination by both sides at trial. This finding is specific to marihuana use and R.W.’s need to work part time to support some of his debt load. As specified above, marihuana appears to have been a significant component defining R.W.’s lifestyle. His claim today that he quit this past March is quite self-serving and adoption of his claim demands an assessment on a fulsome evidentiary record.

As indicated above, the financial issue is not whether R.W. can afford to raise two children; it is his need to take part time work to pay down one of his more significant debts. Whether this need has magically disappeared since last December (as R.W. alleges) will likewise, in the interests of the children, have to await a more fulsome evidentiary record. The current issues could give rise to a number of risk findings that may affect R.W.’s success at trial.

If his success at trial is uncertain and the children are delivered into his care today, the continuity factor in subsection (3).7 assumes some significant weight. The Applicant’s submissions respecting the residential status quo that has existed for 15 months merits no weight without any evidence how the children are functioning in their present environment. However, from the perspective of the children, I cannot ignore that they have resided in the same home since May 28, 2015 and given the passage of time, a move should occur only if it will more likely as not be the last one.

As indicated above, that is not yet clear. With some reluctance, I find the merits of a plan to keep the children where they are pending trial is in their interests respecting continuity. As referred to throughout, the failure of any of the three main parties to this motion to bring forward any information about the children also applies as “another relevant circumstance” defined in subsection (3).13 that merits consideration. In the child welfare industry, one would expect focused evidence about the children’s needs and interests from the society and I have noted its absence from the Applicant’s materials.

Indeed, my sense of the Applicant’s effort in responding to this motion is that of lazy litigation.

Nevertheless, the onus is on R.W. to prove the order he seeks is in the children’s best interests and his failure to discuss them or their needs as he sees them or the value to the boys of the time he has spent with them merits negative weight since it remains unclear by his silence how much about their needs and interests he truly understands. At trial, both the Applicant and the grandfather will have a considerable number of evidentiary gaps to fill – particularly as they focus on the children. Until that occurs, I do not intend to move the children.

Considering the submissions in this motion and the entrenched positions taken by each side, it does not appear to me that a settlement conference will resolve the issues between R.W. and the Applicant. I am prepared, if requested by counsel, to expedite a trial respecting the competing placement claims. I will adjourn the application to October 6, 2016 to hear positions in this regard. September 12, 2016 _____________________________________ Justice M.P. O’Dea