Children’s Aid Society of Halton v. J.A1., 2011 ONCJ 624

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. COURT FILE No.: Halton 547/10 DATE: 2011·01·18 Citation: Children’s Aid Society of Halton v. J.A1. , 2011 ONCJ 624 ONTARIO COURT OF JUSTICE BETWEEN: The Children’s Aid Society, Region of Halton Applicant, — AND — J.A.1 (Mother) Respondent J.A.2 (Father) Respondent Before Justice Sheilagh M.

O’Connell Heard on December 9, 2010 Endorsement released on January 18, 2011 Diane Skrow ............................................................................................... for the applicant society Pawel Wojtis ........................................................................................... for the respondent mother

John Legge .............................................................................................. for the respondent father ENDORSEMENT S. O’CONNELL, J. [ 1 ] This is a temporary care and custody motion regarding M. A., who is 9 years old. The motion was heard on December 9, 2010. The Society commenced its protection application on November 29, 2010 seeking society wardship of the child M. A., born [], 2001, (“M.A.”) and temporary care and custody of M.A. pending the protection hearing.

The temporary care and custody hearing was adjourned to December 9, 2010 to permit the parents to file responding materials. M.A. was apprehended by the Society on November 24, 2010. Overview: [ 2 ] In its protection application dated November 29, 2010, the Society seeks a finding that M.A. has been “abandoned” by his mother, one of the Respondents, pursuant to section 37(2) (

i) of the Child and Family Services Act , and sought a seven month society wardship order. In its notice of motion and supporting affidavit of child protection worker Megan Heudier, dated November 26, 2010, the Society sought an order for the temporary care and custody of M.A.. It is not in dispute that M.A. was in the Respondent mother’s care and charge at the time of the Society’s apprehension of the child.

The Respondent mother does not agree that she has abandoned M.A., but rather that she was no longer able to care for him. [ 3 ] At the return of the temporary care and custody motion on December 9, 2010, the Society presented a new plan of care for M.A., served upon the Respondent mother that morning, in which the Society substantially changed its position, although it had not amended its protection application.

In its new plan of care, dated December 8, 2010, the Society is now seeking to place M.A. with the Respondent father under the supervision of the paternal grandparents for a period of seven months, and that any access between M.A. and his mother take place as arranged and agreed between the parties in accordance with an order made in the family proceedings in the Ontario Superior Court of Justice. The Society did not file any updated or supporting affidavit evidence in support of the change in its position on the temporary care and custody motion.

The Society appears to be relying upon the father’s evidence. [ 4 ] The Respondent father supports the Society’s changed position. The Respondent mother strongly opposes placing M.A. in the temporary care and custody of the Respondent father under the paternal grandparents’ supervision. It is her position that M.A. should remain in a specialised residential treatment program for autistic children. Background Facts: [ 5 ] The Respondents are the biological parents of M.A..

It is not disputed by the parties that M.A. is a severely autistic child and has been diagnosed with Pervasive Development Disorder/Autism (“PDD/Autism”). According to the Respondent father’s Affidavit, sworn December 6, 2010, “M.A. ’s PDD/ Autism is “debilitating…M.A. is severely autistic and is able to communicate by pointing to objects that he desires, making gestures and sounds and directing people to desired objects.” M.A. was diagnosed with PDD/Autism in May of 2004.

Both Respondents agree that M.A. sometimes exhibits violent behaviour, physical aggression with adults and children, crying and yelling, constant agitated movements, uncontrolled urination and defecation, and that there was a very significant deterioration in M.A.’s behaviour prior to his apprehension.

However both Respondents strongly disagree about the reasons for the deterioration in M.A.’s behaviour and the best treatment plan for M.A.. [ 6 ] The Respondents separated on September 7, 2008 when the father was charged with assaulting the mother and removed from the former matrimonial home as a result of the criminal charges. M.A. has lived with and been in the de facto care and control of the Respondent mother since the parties separated, until his apprehension by the Society on November 24, 2010.

Since May 21, 2009, the Respondent father has exercised supervised access to M.A. at the Halton Supervised Access Centre, pursuant to a Consent Order of Justice Price of the Ontario Superior Court of Justice, dated May 21, 2009. [ 7 ] The parties have two children. Their youngest child, E.A., born December […], 2007, is not subject to these child protection proceedings. E.A. resides with the Respondent mother and has done so since the parties’ separation.

The Respondent father exercises supervised access to E.A. pursuant to the same family court order referenced above. [ 8 ] The family has been involved in family court proceedings in the Superior Court of Justice since the parties separated. The issues of custody and access are still being litigated. The Respondent mother has claimed an extensive history of domestic violence by the Respondent father in those proceedings and in these proceedings. The police charged the father with several counts of assault, and on June 22, 2010, after a trial, the father was convicted of one count of assault against the mother.

The father’s sentencing took place on January 5, 2011, but the trial judge reserved the sentencing decision. The father has also pleaded guilty to a charge of mischief under $5,000.00 and received 12 months probation for wilfully damaging a neighbour’s car. [ 9 ] The Respondent father denies that he has been violent towards the mother, except in self-defence and deposes in these proceedings that the mother has assaulted him on many occasions during their marriage.

The father deposes that his one conviction of assault against the mother (he was acquitted on all other charges) is for “one count of assault for self defence in excess.” [ 10 ] On November 19, 2010, in the Superior Court of Justice family court proceedings, the parties consented to an order for an assessment of the issues of custody and access pursuant to

section 30 of the Children’s Law Reform Act . This assessment is pending and

an assessor has been agreed to by the parties to conduct the assessment. Events Leading to Apprehension: [ 11 ] The Society apprehended M.A. on November 24, 2010 when the mother brought M.A. to the Milton District Hospital and advised the Society that she could no longer care for M.A.. Prior to that date, the mother had contacted the Society on October 24, 2010 because she was having difficulty with M.A.’s behaviour. The Society’s intake worker noted in the referral that she could hear the child yelling in the background.

According to the mother, she did not hear from anyone at the Society for seven days after her initial call. [ 12 ] The mother had observed that between September and November of 2010, M.A.’s behaviour had deteriorated significantly and that this was most likely due to his removal from IBI therapy (for autistic children) and the introduction to a new life skills school environment. After M.A.’s diagnosis in 2004, M.A. was referred to the Erin Oaks Autism Services where he was on a waitlist for two years. M.A. started receiving IBI therapy consistently in January of 2007.

Unfortunately, the funding for M.A.’s IBI therapy ended in March of 2009 and the treatment also ended. According to the Erin Oaks’ psychologists, M.A. did not make any significant gains and he had reached his maximum ability to learn. M.A. was also enrolled in a language therapy program at the Trillium Hospital from 2005 to 2006 (the POPS program), and also had occupational, speech and language therapy from different treatment providers during this same time period. In October of 2008, the mother received funding to hire two respite workers to assist her with M.A.’s treatment and care.

At the time of the Society’s involvement, the mother was working with one primary respite worker as well as receiving assistance from her mother, M.A.’s grandmother. M.A. was also enrolled in special needs soccer during the summers of 2009 and 2010. [ 13 ] M.A.’s paediatrician since 2002, Dr. Michael Lester, who assisted the family in the referral for M.A.’s initial diagnosis and in obtaining the funding for the IBO therapy, observed the following in his report dated November 22, 2010: Today, M.A. is nine years old and has regressed significantly.

In my office, I have observed M.A.’s escalating behaviour…Mom is exhausted and has often come to my office crying…I don’t believe these issues will be resolved solely on week or weekend respite. As far as I am concerned, this family has exhausted all forms of services that are available to children as severe as M.A..

For the well-being of E.A. and Ms J.A.1’s health and situation, I formally recommend that Mathew be placed in a permanent residential home that will meet his developmental needs as a child with severe autism. [ 14 ] According to the mother’s Affidavit sworn December 2, 2010, in addition to M.A.’s paediatrician, M.A.’s school principal, teachers, long term IBI therapist, and primary respite worker all are of the opinion that M.A.’s best interests are served by placing him in a residential treatment home with staff who are properly trained to deal with highly autistic children. [ 15 ] In early November 2010 on three separate occasions, M.A.’s school principal contacted the Respondent mother and requested that M.A. be removed from school on because of his behaviour.

The school principal requested that the mother seek medical attention for M.A. while the school contacted the school board’s autism itinerant to decide on what course of action to take. As a result, the Respondent mother, along with her mother and a respite worker stayed home for several days to care for M.A.. [ 16 ] On November 3 rd , 2010, the Society received a referral from Dr. Paulsen, an emergency room doctor at Milton District Hospital. According to the Society’s Affidavit, dated November 26, 2010, Dr.

Paulsen reported that M.A. is severely autistic and developmentally delayed and that the mother can no longer manage the child’s behaviour. The mother was increasingly concerned about the safety of her younger daughter E.A. given the child’s escalating aggressive behaviour. Dr. Paulsen advised the Society worker that even she felt nervous around the child as he was so active in the emergency department. Dr. Paulsen reported to the Society that the mother brought the child to emergency because she cannot manage his aggression and needs assistance. It was Dr.

Paulsen’s sense that community resources had been exhausted. The information from Dr. Paulsen was reported in the Society’s Affidavit dated November 26, 2010. [ 17 ] After the call from Dr. Paulsen, Society workers met with the mother and agreed to provide a child and youth worker from Bartimaeus to assist the mother in caring for M.A. during the day from 8:00 AM to 5:00 PM. On November 10, 2010, a placement meeting occurred at the Society’s office with the mother.

According to the Society’s Affidavit, the mother agreed to work with the child and youth worker and the worker’s hours were increased to include weekends and evenings from 5:00 PM to 8:00 PM. [ 18 ] On November 23, 2010, the child and youth worker was unable to attend the mother’s home due to a family emergency and no replacement was available. On November 24, 2010, the mother brought the child back to the Milton District Hospital along with the child and youth worker and dropped them both off at the hospital.

The hospital contacted the Society and when the Society’s worker contacted the mother later, the mother advised her that she could no longer care for M.A.. [ 19 ] The Society apprehended M.A. that day and arrangements were made to place M.A. at Ausable Child and Family Services in Rockton, a specialised residential treatment program for children diagnosed with Autism.

The Society’s Position: [ 20 ] In the Society’s original motion to apprehend M.A., the Society supported the mother’s position that M.A. should be placed in a specialised residential treatment program as a ward of the society for a period of seven months. In the Society’s original Plan of Care dated November 26, 2010, filed with its original protection application, the Society outlined the services it has provided and will provide M.A. and the services that the Respondent needs as follows: a. M.A. has been placed in a residential treatment program, Ausable Child and Family Services in Rockton, Ontario; b.

M.A. will receive an assessment of his needs and treatment plan. Details of the treatment plan are pending the assessment of his needs; c. The mother will seek counselling services through her Employment Assistance Program to work through the issues associated

with previous domestic violence that she has experienced. [ 21 ] At the return of the motion brought by the Society on December 9, 2010, as previously stated, the Society presented a new Plan of Care dated December 8, 2010, served upon the mother that day, substantially changing its position.

The Society was now seeking to place M.A. in the temporary care and custody of the Respondent father under the supervision of the paternal grandparents for a period of seven months, pursuant to terms and conditions of Society supervision. [ 22 ] Although the Society did not provide any updating affidavit evidence in support of the change in its position, I was advised by Society counsel that the Society workers did not have an opportunity to meet with the Respondent father and canvass his position until Monday, December 6, 2010, three days before the temporary care and custody hearing.

Based on this initial meeting with the Respondent father, the Society was satisfied that the Respondent father and his parents appeared to know a lot about autism, had been involved in M.A.’s care and treatment for autism in the past, and that his plan of care for M.A. was adequate to protect M.A.’s needs. In its new plan of care dated December 8, 2010, the Society outlines the services that it will provide to the father as follows: a. The Society will attend the home at least every 30 days to ensure that appropriate resources are in place and that M.A.’s needs are being met; b.

The Society will participate in service co-ordination meetings with service providers to ensure that a holistic view of services is provided to ensure that M.A.’s needs are being met and to make referrals to other services as required; c.

The Society will interview the father and the paternal grandparents on a regular basis to ensure that appropriate levels of supervision are in place and that M.A.’s needs are being met. [ 23 ] The Society sought a number of conditions of supervision while M.A. is in the temporary care and custody of the Respondent father which include the following, in addition to the usual conditions of supervision: a. The father shall provide the appropriate level of supervision for M.A. and a safe environment that will meet his needs; b. The father and M.A. will reside in the home of the paternal grandparents; c.

The paternal grandparents shall supervise the father’s contact with M.A.; d. The father shall register M.A. in a special education program and arrange for transportation to and from that program; e. The father shall register M.A. in a York Region program that will meet M.A.’s social needs; f. The father shall ensure that appropriate resources are in place to meet M.A.’s needs identified in the assessment completed through Ausable Family Services where M.A. is currently residing; g.

The father shall take the necessary steps to arrange for M.A. to be seen and followed by a developmental paediatrician in his area. [ 24 ] At this time, it is not known to this Court if the assessment of M.A.’s needs by Ausable Family Services treatment home has been completed. No evidence was led by the Society or the other parties that the residential treatment home had completed their assessment of M.A.’s needs. No evidence was led by the Society regarding their assessment of the Respondent father’s and grandparents’ interaction with M.A..

It appears that the Society did not observe the Respondent and M.A. together prior to changing its position. The Respondent father’s position: [ 25 ] In his Affidavit dated December 6, 2010, the Respondent father states prior to separation, he was primarily responsible for managing M.A.’s behaviour as a result of his autism and accessing services and treatment for M.A.. The father states that M.A.’s behaviour has badly regressed because the Respondent father is no longer involved with his care and because M.A. is mimicking his mother’s “patterns of rage, aggression and violence”.

The father states that M.A. did not exhibit this behaviour prior to the separation. The father believes that he is capable of managing M.A.’s behaviour and getting M.A. back under control through real and consistent effort, through better management of his medication and through seeking out the assistance of as many local resources as possible. [ 26 ] The father has been a Special Education teacher for 10 years and would like to be given the opportunity to explore what care and treatment options are available for M.A..

He further states that his parents, who were closely bonded to M.A. prior to the separation, are attentive and capable adjunctive care providers. The father’s mother, M.A.’s grandmother, has had formal training as an Autism Intervener with the Geneva Centre for Autism and has a great rapport with M.A.. [ 27 ] The father states that he would immediately meet with Mathew’s paediatrician, Dr. Lester to discuss M.A.’s medication and to explore the possibility of referring M.A. to a paediatric specialist who deals specifically with children with PDD/Autism.

The father believes that he can care for M.A. with his parents’ support and with the following supportive services: a. Special services at home or respite services to provide for M.A.’s extra-curricular needs and extensive hyper-activity level; b. Formal assessment by a Child psychologist who deal with children with Autism Spectrum disorder and Pervasive Developmental disorder; c. Care by a paediatric specialist in autism who can properly monitor and prescribe effective medication to assist M.A.; d. Regularly attend events with the local

chapter of the Autism Society such as movie nights, camping, social skills training, fundraising, and other beneficial events.

The Respondent mother’s position: [28] As previously stated, the Respondent mother is opposed to M.A.’s placement with the Respondent father. It is herposition that M.A. can only be adequately protected in a specialised residential treatment home for autistic children and it is in M.A.’sbest interests to continue to be placed in this treatment home.

The mother states that her position is based on the recommendations of theprofessionals involved in M.A.’s care. [29] The Respondent mother states that her relationship with the father was marred by the father’s violence towards thechildren and herself and that throughout their relationship the father was abusive towards the children and her.

She further states that theRespondent father was not actively involved in M.A.’s care or treatment prior to the separation, that he refuse to meaningfully participatein M.A.’s treatment by not consistent participating in the IBI therapy and his “alleged advocacy” for M.A. was sparse at best. [30] She further states that the Respondent father has had a highly conflictual relationship with his own parents and that M.A.has never lived with the Respondent’s parents or at their home. She states that as a result of the father’s poor relationship with hisparents, visits to the grandparents’ home were rare.

The Respondent mother further states that the paternal grandparents were willing tooverlook and hide abuse within their family. [31] The Respondent states that given the Respondent father’s violent and angry history, and M.A.’s outbursts, there is aserious risk that the Respondent father may harm M.A. and the paternal grandparents would not report it to the proper authorities. Statutory Framework and Analysis: [32] Pursuant to subsection 51(2) of the Act,:

(2) 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 thisPart; (

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 onsuch 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. [33] The legal test that the Court must apply on a temporary care and custody motion is set out in section 51(3) of the Act: 51(3) The court shall not make an order under clause (2) (

c) or (

d) unless the court is satisfied that there are reasonable grounds tobelieve that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause(2) (

a) or (b). [34] The Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibilitythat if the child is returned to the parent having charge of the child prior to apprehension, it is more probable than not that he will sufferharm. Further the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervisionorder to the parent. (The Children’s Aid Society of Ottawa-Carleton v. T., (ON SC), [2000] O.J. No. 2273. [35] The Court must also consider the following as set out under section 51(3.1) of the Act:

(3.1) Before making a temporary order for care and custody under clause 51 (2)(d), the court shall consider whether it is in the child'sbest interests to make an order under clause (2)(

c) to place the child in the care and custody of a person who is a relative of the child or amember of the child's extended family or community. [36] In this case, it is not in dispute that that the mother had charge of M.A. immediately before the apprehension. The motheris not seeking a return of M.A. to her temporary care and custody. Whether the mother is unwilling and/or unable to care for M.A.pursuant to section 37(2) (

l) of the Act or she has “abandoned” M.A. pursuant to section 37(2) (

i) of the Act is ultimately a finding thatwill be made at the protection hearing. [37] However, given that the mother is not seeking a return of the child to her care, neither clause 51(2)(

a) nor clause 51(2)(b)applies in this case, and therefore the legal test under section 51(3) is not applicable. The Society and father both seek to have M.A.placed with him, either under section 51(2)(

c) or section 51(3.1) of the Act. The mother seeks to have M.A. placed in the society’s careunder section 51(2) (

d) of the Act. [38] The Act sets out no specific criteria in

section 51 where the competing positions are between subsections 51(2) (

c) and

51(2) (d). However, section 51(3.1) clearly directs the court to consider that before making a temporary order for care and custody underclause 51 (2)(d), “the court shall consider whether it is in the child's best interests [emphasis added] to make an order under clause (2)(c)to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family orcommunity.” [39] I am further guided by

section 1 of the Act, which sets out the philosophy of the Child and Family Services Act asfollows: Paramount purpose 1.

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

(2) 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 integrityof 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 beconsidered. 3.

To recognize that children's services should be provided in a manner that, i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children, iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their bestinterests, and iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community,where appropriate. 4.

To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural,religious and regional differences. 5.

To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, andthat all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage andtraditions and the concept of the extended family. [40] Some courts have interpreted the guiding principles above to mean that the court must always consider whether a “lessintrusive” can be made to protect a child when the competing interests to be considered are between clauses 51(2)(

c) and 51(2)(

d) of theAct. The court is mandated to carefully consider the least disruptive order for a child, to protect the autonomy and integrity of the familyunit wherever possible, and to respect a child’s need for continuity of care and for stable relationships within a family. (See, for example,Justice Spence’s decision in Catholic Children’s Aid Society of Toronto v. M.R. (ON CJ), [2003] O.J. No. 3965.) [41] However, in Children’s Aid Society of Toronto v. Lois P. and Nathan P. 2010 ONCJ 320 , [2010] O.J.

No. 3508,Justice Katarynych found that the Child and Family Services Act does not strictly require that an order made at an interim care andcustody stage of a child protection hearing be the “least intrusive” option available and that within the range of the options available atthat stage, the court’s choice of the adequate protection for a child rests on determinations of both availability and appropriateness in thecircumstances.

Justice Katarynych states the following at paragraph 97 of her reasons: It is not a requirement of the Child and Family Services Act that the order made be the "least intrusive" order available in the case.Within the scheme of

Part III of the Act, those words are invariably modified by two important adjectives: "available" and "appropriate."So it is that, when choosing an order for a child within the hierarchy of those available in

section 51 of the Act, the choice of an"adequate" protection for the child requires a finding of both availability and appropriateness in the circumstances. [42] In Catholic Children’s Aid Society of Toronto v. K.A. [2008] O.J.

No. 3582, Justice Murray considered the hierarchy ofcompeting choices under section 51(2) and sets out a different approach at paragraph 36 of her Reasons: When dealing with disputes between the Society and a family member other than person described in section 51(2)(a) (whom I havereferred to as the "primary parent"), the Act does not set out a presumption that a family plan which deals adequately with protectionconcerns is to be preferred to a Society plan for temporary care. However, in interpreting s. 51(2), courts have observed that the choicesset out in that

section are tiered, and represent ascending levels of intrusiveness into the family, and have held that a court shouldconsider the options set out sequentially, in other words, if a child cannot be returned to his/her primary caregiver, to consider afamily/community placement before considering a Society placement.

One court observed that although section 51(3) of the Actspecifically directs a court to return a child only to the "primary parent" unless there are protection concerns that cannot be adequatelymanaged with a supervision order, that the philosophy behind this provision should inform a court's deliberations in other circumstances,such as a dispute about temporary custody between a family member other than the "primary parent "and the Society. These decisionsreflect the philosophy of the Act that mandates a court at all stages of a case to consider carefully whether a "less intrusive" order can bemade.

[ 43 ] In my view, when considering the guiding principles set out under

section 1 of the Act, the correct approach is as follows: when a court is faced with competing placements for a child under section 51(2)(

c) and 51(2)(

d) at a temporary care and custody hearing, the court must consider the least restrictive order available and appropriate in the circumstances of a particular case that is consistent with the best interests, protection and well-being of the child in question. The best interests test applied within these parameters should take into consideration the factors set out under section 37(3) of the Act that are relevant to the case being considered. Conclusion [ 44 ] Having considered all of the circumstances of this case, at this very early, interim stage of the child protection hearing, I conclude that M.A. is to remain in the temporary care and custody of the Society for the following reasons:

a) M.A. is a severely autistic child and there is credible and trustworthy evidence that his primary caregiver was unable to care for him, even with the assistance of two primary respite workers, and at the time of the apprehension, the assistance of one full-time respite worker and her mother. Professionals involved in M.A.’s care have recommended that M.A. be placed in a permanent residential treatment home that will meet the special needs of a child with severe autism;

b) M.A. has not lived with the Respondent father since September of 2008, more than two years and the Respondent father has only exercised limited supervised access to M.A. at a supervised access centre since May of 2009;

c) The Society met with the father apparently once on December 6, 2010 prior to significantly changing its position regarding an appropriate placement for M.A. that will meet the special needs of a child with severe autism. The Society did not file any updated affidavit evidence or any evidence at all in support of the change in its position. There is no evidence whether Society workers had observed the Respondent father and M.A. interact or whether the Society observed the interaction between M.A. and his grandparents prior to changing its position at the temporary care and custody hearing.

There is no evidence whether the Society met and interviewed the grandparents, key people in the Respondent father’s plan of care, as they have agreed to supervise the Respondent’s care of M.A.’s care. There is no evidence whether the Society contacted the professionals involved in M.A.’s care, in particular, Dr. Lester, to discuss their recommendations and opinions regarding an appropriate treatment plan for M.A.;

d) M.A. is currently in a residential treatment home that specialises in the treatment and care of autistic children. According to the Society’s original plan of care, M.A. will receive an assessment of his needs and treatment plan at this home. There is no evidence whether that assessment has been completed and what recommendations, if any have been made;

e) There is conflicting evidence regarding the Respondent father’s history of violence and anger management issues, and his conflictual relationship with his parents, if any. The Respondent father was convicted of assaulting the Respondent mother and the trial judge’s decision on the sentence has been reserved at this time. [ 45 ] In my view, more investigation is needed by the Society to determine whether the Respondent father’s plan of care for M.A. at this stage is adequate and appropriate to protect M.A. given the above circumstances.

Hopefully, the assessment of M.A.’s special needs by his residential treatment home is underway and that assessment should be completed before any further changes in his placement are considered. I recognise that the Society has an ongoing duty to keep pace with it investigation, but the abrupt change in the Society’s position at this stage in the proceedings was premature, given the concerns raised above. The Order [ 46 ] The least disruptive order available and appropriate in the circumstances of this case that is consistent with M.A.’s best interests, protection and well-being, is as follows:

a) The child, M. A. will remain in the temporary care and custody of the Children’s Aid Society, Region of Halton pending a full and comprehensive assessment of the child’s needs and treatment plan; [ 47 ] I thank counsel for the submissions during argument and I once again sincerely apologise for the delay in releasing these reasons due to personal circumstances. Released: January 18, 2011 Signed: “Justice Sheilagh O’Connell”