Children’s Aid Society of Toronto v. S.G., 2011 ONCJ 746

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 one or more of 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 . . . 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) or 76(11) (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 Registry No. CFO 11 11036 B3 DATE: 2011·XII·14 CITATION: Children’s Aid Society of Toronto v. S.G. , 2011 ONCJ 746 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — S.G and C.K.S., Respondents. Before Justice Ellen B.

Murray Heard on 8 December 2011 Decision released on 14 December 2011 Sharon D. Greene .......................................................................... counsel for the applicant society Margarida M. Pacheco ................................................................ counsel for the respondent mother Kenneth Snider .............................................................................. agent for the respondent father

[ 1 ] JUSTICE E.B. MURRAY:— On July 19, 2011, the court made an order on consent placing the child A.G., born February […], 2010, in the care of his mother, Ms. S.G.. The placement was to be supervised by the Society and subject to eleven conditions. The Society now brings an early status review application and a motion, asking that A.G. be removed from Ms. S.G.’s care and returned to temporary Society care. The early status review application asks for a further 6 months of Society wardship. [ 2 ] The Society alleges that Ms.

S.G. has breached six key conditions, and that A.G.’s physical and emotional heath will be jeopardized if he continues in her care, at least if Ms. S.G. is not in supportive housing in which her care-giving is monitored. Ms. S.G. is scheduled to be evicted on December 16, 2011, from the supportive housing which she has enjoyed at Massey Centre. The eviction is taking place because she has failed to comply with Massey Centre rules. [ 3 ] Ms. S.G. opposes the motion.

She submits that she has breached only one condition—to participate in counselling—and that this breach occurred because she did not have sufficient Society support. She is adamant that she has not put A.G.’s health at risk, and states that she has appropriate accommodation planned. [ 4 ] A.G.’s father, Mr. C.S., supports the Society’s motion. [ 5 ] In deciding this motion, I have reviewed the affidavits filed, as well as prior agreed statements of fact, applications and answers, and plans of care.

HISTORY OF THE CASE [ 6 ] A review of the background and history of this case is set out below. [ 7 ] Apprehension February 16, 2010. A.G. is born February […], 2010, and apprehended two days later. At the time, Ms. S.G. was 17 years of age. She was diagnosed with a mild intellectual disability. Mr. C.S. was 43 years of age. They met on the internet. Ms. S.G. lived with her mother, Ms. D.B. Ms. D.B. had a history of pursing on-line relationships with men, and encouraging her daughter in the same behaviour. Ms. S.G. had made contact with Mr. C.S. online, believing that he was a teenager.

An arrangement was made for him to come from Montreal to Toronto, and Ms. D.B. and Ms. S.G. took him into their home where he commenced a sexual relationship with Ms. S.G., and she became pregnant. Mr. C.S. promised them various financial benefits. [ 8 ] Police contacted the Society about the situation before the child’s birth. The Society had contact with the family five years earlier, because of reports from Ms. S.G.’s sister, Ms. T.B., that Ms. D.B. was supporting Ms.

S.G., who was then twelve years old, in involvement in internet pornographic chat rooms. [ 9 ] The society apprehended A.G. because of concerns about Ms. S.G.’s cognitive limitations, her unsafe internet behaviour and the risks this would pose to an infant residing with her, the failure of grandmother to offer a safe environment, and Mr. C.S.’s “predator-like” behaviour. [ 10 ] Ms. S.G.’s relationship with Mr. C.S. terminated after the apprehension. [ 11 ] April 7, 2010. A.G. is temporarily returned to Ms. S.G. under the Society supervision after Ms.

S.G. has established herself in Rosalie Hall, a supportive residence. Two days later, Ms. S.G. says that she is not ready to parent, and asks that he be returned to the Society care. The Society takes the child into care. [ 12 ] June 24, 2010. On consent, an order is made finding that A.G. is a child in need of protection pursuant to s. 37(2)(

l) of the Act, and an order of Society wardship is made. [ 13 ] October 20, 2010. On consent, a further order of 3 months the Society wardship is made. [ 14 ] March 29, 2011. On consent, a temporary order placing A.G. in Ms. S.G.’s care subject to the Society supervision is made. She is living in and attending school at Massey Centre, a supportive residence for young mothers. [ 15 ] July 19, 2011 On consent, a final order is made placing A.G. in Ms. S.G.’s care for six months subject to Society supervision. The conditions in the order are similar to those in the temporary order made in March.

The provisions affecting Ms. S.G. are summarized below: 1. Maintain a safe home. 2. Ensure safe and appropriate supervision of A.G.; including child care/babysitting arrangements. 3. Continue residing at Massey Centre until another appropriate residence, approved by the Society, is located. 4. Insure that a safe child-centered plan is in place developed in consultation with the Society, prior to any move from Massey Centre. 5. Inform the Society worker of any change in your phone number. 6. Follow the rules and expectations of Massey Centre to the best of your ability. 7.

Actively follow up on service referrals and recommendations made by Massey staff with respect to enhancing your parenting skills and any self care issues.

8. Access and successfully complete individual counselling services to enhance your understanding of setting appropriate boundaries with partners, keeping yourself safe, self esteem issues, and goal setting. 9. Do not allow access between A.G. and Mr. C.S. without prior Society approval. 10. Make yourself available for announced and unannounced visits from the Society workers. 11. Ensure that A.G.’s medical, nutritional, instrumental, and emotional needs are met consistently.

STATUTORY TEST [ 16 ] Subsection 64(8) of the Child and Family Services Act sets out the test for an interim custody motion brought while a status review application is pending: [ 17 ] “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 interest require a change in the child’s custody.” [ 18 ] There is judicial disagreement about the

interpretation of this provision. Justice John Kukurin in Children’s Aid Society of Algoma v. S. S. and M. C. , 2010 ONCJ 332 , 192 A.C.W.S. (3d) 167, [2010] O.J. No. 3507, 2010 Cars​well​Ont 6012 (Ont. C.J.), held as follows: Subsection 64(8) does not create a presumption in favour of whoever has care and custody of a child. It goes further than a presumption. The use of the words ’shall remain’ implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child require a change in the status quo.

In my view, the use of the word ‘require’ in this provision is not accidental. ‘Require” is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation. [ 19 ] Justice Peter B. Annis in Children’s Aid Society of Ottawa v. E.S. , [2011] W.D.F.L. 2516, 2010 ONSC 7182 , [2010] O.J. No. 5684, 2010 Cars​well​Ont 9948 (Ont. Fam. Ct.), understood Justice Kukurin to mean that a standard of proof above proof on the balance of probabilities applies on a section 64(8) motion.

Justice Annis’ view was that the required standard is simply the balance of probabilities. He worried that imposition of a higher burden on such a motion would make a society reluctant to intervene, “even though it concludes that a point has been reached where it is in the best interests of the children to do so”. [ 20 ] I agree with Justice Kukurin’s view of the issue. I do not read his decision as proposing a standard of proof higher than the balance of probabilities. As the Supreme Court of Canada held in F.H. v.

McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41, 380 N.R. 82, 260 B.C.A.C. 74, 83 B.C.L.R. (4th) 1, 439 W.A.C. 74, [2008] 11 W.W.R. 414, 297 D.L.R. (4th) 193, 61 C.P.C. (6th) 1, 60 C.C.L.T. (3d) 1, 61 C.R. (6th) 1, [2008] S.C.J. No. 54, 2008 Cars​well​BC 2041, there is only one standard of proof in a civil case, and that is proof on a balance of probabilities. There are no degrees of probability within that civil standard.

I read Justice Kukurin as highlighting the priority which subsection 64(8) gives to one best interest factor -- the importance of maintaining continuity of care for a child -- when a party wishes to disturb the status quo established by a final order before trial of a status review application. [ 21 ] It must be kept in mind that on a s. 64(8) motion, a court is being asked to vary an order that has previously been determined to be in a child’s best interests. That order has been based on either findings made after a trial, or on indisputable evidence presented at a

summary judgement motion, or on facts upon which that all parties have agreed. A 64(8) motion is usually—as is the case here—being argued on untested affidavit evidence. [ 22 ] Justice to the parties and the child requires that such a decision be made very carefully, only when it is clearly necessary to do so before trial. This prevents unnecessary changes in a child’s custody, and disruption of hard-won stability. [ 23 ] In my view, on such motions, the moving party must first establish that there has been a material change in circumstances related to the child’s best interests.

If there has been such a change, then it must be demonstrated that it is necessary, in protecting the child’s best interests, to change the existing order before trial of the status review application. The Act sets out certain factors, in addition to continuity of care, which may be relevant in assessing a child’s best interests. [i] FINDINGS OF FACT Agreed Statement of Fact [ 24 ] The starting point for my analysis is the agreed statement of facts which formed the basis for the order of July 19, 2011, placing A.G. in Ms. S.G.’s care under a supervision order. [ 25 ] That statement acknowledged that Ms.

S.G. had experienced difficulty in attaining the goals set out in the Society’s plan of care, as well as in her own plan. She had failed to attend school regularly, and as a consequence had lost A.G.’s daycare spot. She had also failed to start individual personal counseling; this counseling was important, given Ms. S.G.’s history of risky behaviour with men on the internet. The statement acknowledged that Ms. S.G. wished to leave Massey Centre with A.G., but that she did not yet have appropriate supports and a concrete plan in place.

She hoped to leave in October, 2011. [ 26 ] The statement went on to say that “for the most part, Ms. S.G. has been doing well at Massey Centre, and is making appropriate use of their services and supports”. It noted that she was attending two days a week at the Early Years program with A.G.,

participating in a parent support program and in a breakfast program, and working with a mentor. Most important was the acknowledgement that, despite Ms. S.G.’s difficulties, she “has been observed to be appropriate in her interactions with A.G. and there are no concerns about the physical and emotional care of A.G.”. [ 27 ] The supervision order of July 19, 2011 set out conditions which the parties agreed were necessary to prepare Ms. S.G. to live independently with A.G.. Subsequent to the order, family service worker Lori Bell, in conjunction with Massey staff, advised Ms.

S.G. that she was expected, until she was successful in obtaining a daycare spot for A.G., to insure that he attended other programming at Massey five days a week. Other Relevant Facts [ 28 ] Other facts which emerge from the evidence are set out below. 1. A.G. is a child who is frequently sick. He is a fragile asthmatic, and requires careful attention. 2. A.G. has been losing weight over the past two months. 3. Two nurses and Ms. S.G.’s primary worker at Massey Centre are alarmed at Ms. S.G.’s treatment of A.G.. They say “staff” report that Ms.

S.G. “shovels food” into the child “without love or care”, that she ignores him, and that she is frequently angry at and rough with A.G.. 4. Ms. S.G. vehemently denies these allegations. She attributes A.G.’s weight loss to his illnesses, which she says occurred for “a few weeks” in August and ten days in October. 5. A pediatrician, Dr. Do, saw A.G. on October 26, 2011. Dr. Do found that Ms. S.G. had “appropriate knowledge” of feeding techniques, and at that point, was not concerned about the child’s weight loss. However, she was concerned about his respiratory condition. 6.

A Massey Centre nurse understood from Dr. Do that she had prescribed three different medications for A.G.’s respiratory problem, and had advised Ms. S.G. to make a follow-up appointment in early November. Ms. S.G. advised Ms. Bell that only one medication was prescribed, and that she had not been asked to take the child back to Dr. Do before February 2012. Ms. Bell asked Ms. S.G. to call Dr. Do to clarify what was expected. Ms. S.G. swears in her affidavit that she did so, and that her original understanding was correct. Ms. Bell deposes that she subsequently spoke to Dr. Do, who advised that Ms.

S.G. has not contacted her, and that the doctor is concerned about the child’s respiratory condition. 7. Ms. S.G. has not regularly attended the Early Years program with A.G.. She attended only three out of a possible approximately sixteen sessions in October. Ms. S.G. responds that she has attended regularly, except when the child was sick. Although A.G.A.G. was sick some of the time, this does not appear to account for most of the absences. 8. Ms. S.G. has been given notice to leave Massey Centre by December 16, 2011, because she has not complied with Massey Centre rules and expectations.

The material is not entirely clear as to what “rules and expectations” were not met, but it is apparent that Ms. S.G. : • has been absent from Massey Centre overnight without leave; • has not engaged in required programming with A.G.; • has failed to attend and participate in case conferences scheduled to evaluate her progress and plan for the future . It is clear that Ms. S.G. was warned for weeks prior to the eviction notice being given that her behaviour was endangering her tenancy at Massey House. 9. Ms. S.G. has also failed to attend meetings scheduled with her family service worker. 10. Ms.

S.G. has not been successful in obtaining another daycare spot for A.G.. She has missed meetings scheduled to obtain daycare subsidy. 11. Ms. S.G. did not until very recently follow up on information provided by Massey staff about other appropriate accommodation. 12. Ms. S.G. has not engaged in the personal counselling contemplated in by the order. Ms. S.G.’s evidence is that she followed up on three referrals given by Society staff. She rejected counselling at the Sherbourne Clinic as unsuitable at the intake stage.

She deposes that other programs have a waiting list, although she does not say that she put herself on the lists. Ms. S.G. criticizes the Society for not doing more to help her find counselling, but there is no evidence that she asked for this help. 13. In October, Ms. S.G. had her social assistance payments suspended because she did not attend three consecutive meetings. She recently has been successful in having those payments restored. 14. It was not until the argument of this motion that Ms.

S.G. advised the Society that she planned to move with A.G. to the Family Residence when she is evicted from Massey Centre. She makes it clear that this is a temporary plan, and that she is looking for other accommodation. The Family Residence is a shelter. It does not offer supervisory monitoring. Ms. S.G. deposes that the shelter has a daycare program, but she does not know whether she will be able to place A.G. in that program .

ANALYSIS [ 29 ] In my view, there is no argument that there has been a material change in circumstances relevant to A.G.’s best interests since July 19, 2011. [ 30 ] Ms. S.G. has not made progress since the July 19, 2011 order towards being able to demonstrate that she can provide a safe home and appropriate care for A.G. in an independent living situation. She appears to have lost ground in one crucial respect—she has not ensured that A.G.’s medical needs are consistently met. I would have liked to receive a written report from Dr. Do, but absent this, I am still persuaded that the evidence indicates that Ms.

S.G. was mistaken about the directions given her by Dr. Do for A.G.’s care, and that she has failed to take appropriate steps to learn what medication and care are required. Dr. Do is concerned that A.G. is not receiving the careful attention he needs. [ 31 ] With respect to A.G.’s weight loss, I accept that this may be caused by illness. However, I am very concerned about the Massey staff’s observations about Ms. S.G.’s treatment of the child. I note that the report of these observations is second-hand hearsay, and that the staff persons who made the observations are not identified.

But I also note that two staff nurses and Ms. S.G.’s primary care worker are confident in relying upon these reports, and that they are very concerned. These observations come from more than one person, and span a number of weeks. Massey staff had not previously (prior to June 19, 2011) found fault with Ms. S.G.’s treatment of A.G.. There is no evidence that Massey staff have developed an unjustified animus against Ms. S.G.. These observations concern me because they call into question Ms.

S.G.’s ability, if she is not prompted during consistent supervision, to care for A.G. with the attention and patience that he requires. [ 32 ] In addition, Ms. S.G. has not been able to comply with other key conditions of the supervision order, conditions geared to positioning her to live independently and safely with A.G..

These conditions include the development of a “safe, child-centred plan” and appropriate accommodation prior to a move from Massey Centre, continued participation in recommended programming, completing individual counselling, and meeting with the family services worker. [ 33 ] Do the changes in circumstances noted require a return of A.G. to Society care? Subsection 64(8) directs me to keep the child in his mother’s care, unless his best interests require a change. [ 34 ] Counsel argues that Ms.

S.G. desperately wants to keep A.G. with her, that she is doing her best, and that it would be devastating for A.G. to be removed from her care now. She points out that Ms. S.G. is a young parent, caring for a child who is frequently sick, and juggling myriad demands for appointments. Ms. S.G. says that she will have the support of her sister, Ms. T.B. Ms. T.B. lives in Toronto, caring for four children of her own. Ms. S.G. does not make clear what assistance Ms. T.B. is ready to provide that she has not already offered to her since A.G. was born. [ 35 ] Even if I accept all Ms.

S.G.’s explanations for her failures to follow the plan contemplated and the conditions set out in the July 2011 order, what emerges is a picture of a young parent who is overwhelmed by the demands of caring for a young and fragile child. [ 36 ] Despite this, if Ms. S.G. was able to continue to reside in Massey Centre or in a similarly supportive situation, I would not return A.G. to Society care now. I would add further conditions to the supervision order, and allow the issue of his placement to be determined at the hearing of the status review application.

During argument, and in response to a question from me, Ms. S.G. agreed through counsel that she would continue to live at Massey Centre if this were possible. I expect that the fact that the Society has brought this motion is a sobering experience for Ms. S.G.. I expect that, if she could continue to live at Massey Centre, that she would work more closely with staff and with the family service worker to develop the skills necessary to keep A.G. safe in an independent living situation. [ 37 ] Yesterday, after the argument of this motion, Society counsel advised that Ms.

Bell has been successful in securing a reluctant agreement from Massey Centre to extend Ms. S.G.’s tenancy by one month, to January 16, 2012, if Ms. S.G. complies with certain conditions, which I have reproduced below in an appendix to this decision. If Ms. S.G. confirms by the return time of the motion today that she accepts these conditions, then I will leave A.G. in her care, subject to Society supervision and further conditions which I set out below, which are in addition to the conditions of the July 19, 2011 supervision order. 1. Ms. S.G. is to arrange an appointment with Dr.

Do as soon as possible, and follow her direction with respect to medication and care for A.G.. If an appointment cannot be arranged by December 16, 2011, then Ms. S.G. shall follow any directions given her by nurses at Massey Centre as to who she should consult about A.G.’s respiratory care. 2. Ms. S.G. is to weigh A.G. when directed by Massey staff, and is to attend the Breakfast Club regularly to address issues relating to feeding and weighing the child. 3. Ms.

S.G. is to attend with A.G. five days each week at the Therapeutic Access Centre, or if this centre is closed, at the Early Years Centre, except when that Centre is closed for holidays. 4. Ms. S.G. is to meet with Massey staff and Ms. Bell when required by them to do so. 5. If Ms. S.G. alleges that A.G. has an illness that is so severe that she cannot attend any of the above appointments, then she must obtain confirmation of the child’s illness from a Massey Centre staff nurse. 6. Ms. S.G. shall arrange as soon as possible to begin individual counselling, and shall immediately consult Ms.

Bell or Massey staff if she requires further assistance to arrange such counselling. 7. Ms. S.G. shall not be absent from Massey Centre overnight without obtaining prior staff approval. 8. Ms. S.G. shall follow all the rules governing tenants at Massey Centre, and shall comply with all reasonable directions from Massey

staff . [ 38 ] I may be spoken to about further appropriate conditions. [ 39 ] If Ms. S.G. sees fit to accept Massey Centre’s offer to extend her stay, then I am hopeful that she will be able to make progress that will allow her to be permitted to reside there longer, or that she will be able to locate another acceptable supported living situation. Given that the time that A.G. has already spent in the Society care exceeds the statutory limit, it is urgent that she make these efforts. [ 40 ] I appreciate that even if Ms.

S.G. does what is necessary to extend her stay at Massey Centre, that it is possible that within the month she may be in the same position that she was when this motion was brought, and the Society may have the same concerns it raised before me. If that is the case, the Society may renew its motion, relying on the same material which has been before me and any additional material it wishes to file. That motion should be brought before the case management judge. [ 41 ] If Ms.

S.G. does not today accept the conditions which would allow her to continue to reside at Massey Centre, then within two days time, A.G. will be living with her in a shelter in which she has little support in meeting the challenges involved in his care. Although the family service worker may be able to visit once or even twice per week, there will be no one to monitor Ms. S.G.’s treatment of A.G., her attention to his respiratory problems, and his weight on a daily basis.

Negligence in meeting the child’s physical needs can have drastic consequences for a child as young as A.G.. [ 42 ] In that case, A.G.’s best interests require that he be temporarily removed from Ms. S.G.’s care, and placed in the care of the Society. That is my order, if Ms. S.G. does not today confirm her acceptance of Massey Centre conditions. Released: 14 December 2011 Signed: Justice Ellen B. Murray [i] Subsection 37(3) provides: •

(3) Best interests of child.- Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant: • 1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. • 2. The child's physical, mental and emotional level of development. • 3. The child's cultural background. • 4. The religious faith, if any, in which the child is being raised. • 5.

The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family. • 6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community. • 7. The importance of continuity in the child's care and possible effect on the child of disruption of that continuity. • 8.

The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child's remaining with or returning to a parent. • 9. The child's views and wishes, if they can be reasonably ascertained. • 10. The effects on the child of delay in the disposition of the case.

• 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. • 12. The degree of risk, if any, that justified the finding that the child is in need of protection. • 13. Any other relevant circumstance. APPENDIX – C.A.S. v G. and S. 1. Ms. S.G. is to pay her rent in full. She is currently behind in her rent and owes $199.00. 2. Ms. S.G. is to attend the Regent Park Therapeutic Access Centre. However, if this Centre is closed, she is to attend the Early

Years Centre, 5 days a week (unless the Centre is closed for the holidays). 3. Ms. S.G. is to attend weekly meetings with Massey Centre staff and Ms. Bell. 4. Ms. S.G. is to comply with all directions from staff including: no last minute cancellations; and if the child is ill, Ms. S.G. must first see the staff nurse if she is available. 5. Ms. S.G. is to attend of individual counseling. 6. Ms. S.G. is to attend the Breakfast Club to address issues relating to the feeding and weight of the child.