Children’s Aid Society of Brant v. A.A., 2020 ONCJ 535

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7), 87(8) and 87(9) of the Act . These subsections and subsection 142(3) of the Act , which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re 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) Prohibition re identifying person charged .— 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. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(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. ONTARIO COURT OF JUSTICE CITATION: Children’s Aid Society of Brant v. A.A., 2020 ONCJ 535 DATE: November 20, 2020 COURT FILE No.: Brantford C 78/20 BETWEEN: Brant Family and Children’s Services o/a The Children’s Aid Society of Brant Applicant — AND — A. A. M. J. D. A. B. A. Respondents

Before Justice A.D. Hilliard Heard on November 2, 2020 Reasons for Judgment released on November 20, 2020 E. Lee................................................................................. counsel for the applicant society E. Van Looyen................................................................... counsel for the respondent A.A. A. Macdonald..................................................................... counsel for the respondent M.J. L. Henry............................................................................... counsel for the respondent D.A. C.

Zeran............................................................................... counsel for the respondent B.A. T. Simpson............................................ counsel for the Office of the Children’s Lawyer, legal representative for the child N.J-A.

Hilliard, J.: [ 1 ] This is a hearing under s. 94 of the Child Youth and Family Service Act ( CYFSA) to determine the placement of the child, N.J-A., during the period of adjournment, or more commonly known as a temporary care hearing. [ 2 ] There is a preliminary issue to be determined on this hearing that was raised indirectly by the Respondent father during argument: what is the effect of the kinship services agreement entered into by the Respondent mother and the Respondent grandparents prior to the Society bringing this protection application?

The determination of this initial issue has a direct bearing on the test to be applied under s. 94(2). Background : [ 3 ] The Respondents, A.A. and M.J., are the biological parents of the child, N.J-A. The Respondents, D.A. and B.A., are the child’s maternal grandparents. The child, N.J-A, is 9 years old. [ 4 ] In 2013, a final court order was made granting the Respondent mother custody of the child, with access to the Respondent father pursuant to conditions regarding alcohol consumption during and prior to access.

The Respondent father never commenced a motion to change to alter the terms of that 2013 order. [ 5 ] In May 2019, a Kinship Services Agreement (KSA) was entered into between the Society, the Respondent mother, and the maternal grandparents. The Respondent father was not a signatory to the agreement nor was he given notice about the agreement prior to its execution. The KSA places the child in the care of the maternal grandparents given concerns about the Respondent mother’s illicit substance use.

The KSA was of limited duration and was renewed twice by agreement, with the final KSA expiring in May 2020. [ 6 ] The Society determined that the Respondent mother had not made sufficient progress to have the child returned to her care upon the expiration of the KSA in May 2020 and commenced a protection application.

The relief sought by the Society in its protection application is the child being placed in the care of the maternal grandparents under terms of supervision, with access to the parents in the discretion of the Society. [ 7 ] On May 15, 2020, a without prejudice consent order was made placing the child in the care of the maternal grandparents subject to Society supervision. The Respondent parents were granted access in the discretion of the Society. Positions of the Parties : [ 8 ] Counsel for all parties argued that the Respondent mother is the individual who has “preferential treatment” under s. 94(2)(

a) of the CYFSA . As the Respondent mother conceded that she is not in a position to seek the return of the child to her care, the analysis to be conducted falls under s. 94(2)(

c) which involves a best interests determining to assess the competing claims of the Respondent father and the Respondent grandparents. [ 9 ] Although the Society’s submission was that intervention commenced with the KSA in May 2019, when specifically asked during oral submissions under which

section of the CYFSA the KSA fell, the Society’s position was that the KSA does not come within the purview of any of the legislative provisions of the Act . The Society submits that the KSA is akin to a safety plan rather than an intervention such as a temporary care agreement under s. 75.

[ 10 ] The Respondent father raised the issue of him not being advised of the KSA being entered into, and not being given the opportunity to be the alternate caregiver for the child, as a breach of procedural fairness.

Although the Respondent father concedes that at all relevant times he was an access parent and not a custodial parent, he takes the position that he was unfairly and inequitably prevented from the decision-making process regarding the care of his son at a time when the Respondent mother was admittedly, not in a position to be the primary caregiver. [ 11 ] The Respondent mother and grandparents’ positions align with one another.

The submissions on behalf of the mother and grandparents were that it is in the child’s best interests to remain with the maternal grandparents in whose care he has been in since May 2019. [ 12 ] The OCL presented the views and preferences of the child, indicating his wish to go and reside primarily with the Respondent father. The OCL also took the position that the analysis is a best interests test under s. 94(2)(

c) in determining whether to place with the father or the grandparents. [ 13 ] When specifically asked about the effect of the KSA agreement, all counsel agreed that it has no effect on the analysis. There was also consensus amongst all counsel that the KSA does not fall under the purview of s. 75 of the Act . Effect of Kinship Services Agreement : [ 14 ] The reason that it is necessary to determine what impact, if any, the KSA had on the parenting arrangements with respect to the child, is because of the wording of s. 94(2). The legislation requires courts to assess on a preferential basis the person(

s) who had charge of the child prior to intervention under

Part V of the Act , not necessarily the custodial parent: 94(2) CUSTODY DURING ADJOURNMENT – Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child, (

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

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

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

d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody. [ 15 ] The relevance of the KSA to the analysis is two-fold: (1) when did the Society intervene pursuant to

Part V of the Act ? and (2) who had charge of the child at the time of intervention under

Part V? [ 16 ] Section 94(2) falls under

Part V of the CYFSA . The wording of s. 94(2)(

a) refers specifically to “intervention under this Part” referring to

Part V of the Act .

Section 75 of the CYFSA provides the legislative framework for voluntary agreements: 75. TEMPORARY CARE AGREEMENT –

(1) A person who is temporarily unable to care adequately for a child in the person’s custody, and the society having jurisdiction where the person resides, may make a written agreement for the society’s care and custody of the child. [ 17 ]

Section 75 of the CYFSA is contained within

Part V. Although agreements under s. 75 are voluntary insofar as they involve arrangements made for children to be removed from the care of a parent without formal court process, these agreements do constitute intervention by a society under

Part V as set out in s. 94(2)(a). [ 18 ] All parties agreed that the KSA is not a temporary care agreement (TCA) pursuant to

section 75 of the CYFSA as the child was never placed in the care of the Society. I agree with that assessment. The KSA entered into between the Respondent mother, the Respondent grandparents, and the Society was a voluntary arrangement formalized by a written agreement. There is no provision in the CYFSA governing voluntary agreements between parents, grandparents or other care givers, and the Society where a child is not taken into Society care but rather placed in the care of an alternate caregiver.

The KSA in this case is therefore nothing more than a contract between the Respondent mother, the Respondent grandparents, and the Society, formalizing a safety plan for the child to ensure appropriate mitigation of the protection concerns. [ 19 ] If the child had been taken into the care of the Society by way of a TCA and then placed with the maternal grandparents, the analysis would be much simpler. A TCA is an intervention under

Part V of the Act which crystalizes in time the removal of a child from the care of a parent for the purposes of s. 94(2). However, there was no such removal in this case. [ 20 ] The uncontroverted evidence is that the child was placed in the care of the maternal grandparents by the Respondent mother in May 2019. The Respondent mother was at that time the sole custodial parent. The Respondent father had no custodial rights pursuant to the 2013 final order. As this was a voluntary placement by the Respondent mother and not a removal by the Society, I find that in May 2019 there was no intervention under

Part V of the CYFSA . [ 21 ] The Respondent grandparents had continuous care of the child from May 2019 until the commencement of the child protection application in 2020. The Respondent father continued to have access with the child during the period of time N.J-A. was in the care of the maternal grandparents. The Respondent father did not commence a motion to change to seek an order that the child be placed in his custody given the Respondent mother’s inability to care for him. The Respondent deposes in his affidavit, sworn August 14, 2020, that he is in the process of commencing a motion to change child support, given that the child is no longer in the care of the Respondent

mother. I note, however, that at the time of argument, the Respondent father had yet to commence his motion to change. [ 22 ] Although it would have been preferable for the Respondent father to have been at least notified of the intention to place the child with the maternal grandparents, I find that there is no statutory requirement for the Respondent mother to have notified him. This is not a situation where the parents were granted joint custody by way of a final order under the Children’s Law Reform Act .

Had there been a joint custodial regime, the Respondent father most certainly would have been entitled to notice, and to an opportunity to care for the child prior to placement with the maternal grandparents. [ 23 ] In this case, however, the Respondent father was an access parent at the time the KSA was entered into. The Respondent father’s evidence is that he was aware for a number of years that the Respondent mother was struggling with illicit substance misuse.

Despite the concerns the Respondent father deposes he had for years, to date he has still not commenced a motion to change the final order granting the Respondent mother custody. [ 24 ] The Respondent father also deposed in his affidavit that he had raised, with child protection workers at the Society, his concerns about the Respondent mother’s substance misuse for a number of years prior to the protection application being commenced.

His evidence in this regard supports an inference that the Respondent father was in contact, whether regularly or periodically, with child protection workers at the Society, and was aware of their involvement with the Respondent mother. [ 25 ] I find that the Respondent father acquiesced to the child’s placement with the maternal grandparents at least and until the commencement of the child protection application.

The evidence is clear that the Respondent father became aware of the KSA in November 2019 and yet did not bring a motion to change seeking custody, despite his evidence that he is able and willing to care for the child on a full-time basis.

Despite the assertion of his parental rights in his affidavit evidence, the Respondent father has done nothing to pursue a claim for custody beyond responding to this protection application. [ 26 ] The result of the KSA being entered into on a voluntary basis and the child not being taken into the care of the Society is that statutory intervention by the Society did not crystalize pursuant to

Part V of the CYFSA until the issuance of the protection application in 2020. At the time the protection application was commenced, I find that the Respondent grandparents had charge of the child for the purposes of s. 94(2). Temporary Care and Custody : Placement during adjournment : [ 27 ] The test under s. 94(2) is a laddered approach, starting with the child remaining in the care of the person(

s) who had charge of the child prior to intervention under

Part V of the Act . Having determined that the Respondent grandparents had charge of the child prior to intervention, the analysis must begin with a consideration of the evidence of what protection concerns exist regarding the grandparents’ care of the child. Unless there is sufficient evidence to convince me that the child cannot be adequately protected from harm or risk of harm in the care of the Respondent grandparents, I must make an order that the child remain in their care. [ 28 ] There are no protection concerns regarding the care the Respondent grandparents are providing for the subject child.

The protection concerns set out in the evidence relate only to the Respondent mother.

Although the Respondent father’s position is that the Respondent grandparents are attempting to alienate the child from him and interfering with his relationship with the child, none of those concerns are protection concerns falling within the enumerated grounds under s. 74(2) of the CYFSA . [ 29 ] Although there are no protection concerns related to the care the Respondent father provides for the child, the legislation is clear that a child cannot be removed from the care of the person who had charge of the child prior to intervention unless a court is satisfied that there are sufficient protection concerns to do so.

In this case there are none. [ 30 ] The test is not a best interests test in this case due to the intervening event of the KSA placing the child in the care of the Respondent grandparents. The legislation is mandatory rather than permissive as to what order shall be made during the period of adjournment. The legislation does not permit me to engage in an analysis as to what placement would be in the child’s best interests at this stage of the proceedings.

I am therefore precluded from considering the child’s stated views and preferences to live with his father rather than his grandparents in determining his placement under the s. 94(2) analysis. [ 31 ] Although the Respondent father may be successful at a trial in persuading the court that placement of the child with him is the disposition that is in the child’s best interests, at this stage of the proceedings the legislative presumption that the child must remain in the care of the person(

s) who had charge of him prior to intervention, must prevail. As there is no evidence before me that there are any protection concerns related to the Respondent grandparents, the child must remain in their temporary care and custody until the final disposition of this matter. With or without terms of supervision : [ 32 ] Prior to imposing terms of supervision upon the Respondent grandparents, I must be satisfied that there is sufficient evidence that such terms are necessary.

The need for terms of supervision must be directly connected to the evidence of protection concerns related to the care the grandparents are providing for the child. It is insufficient for the Society to present evidence that there are protection concerns related to a parent who does not have care of the child. Those protection concerns can be addressed by the terms governing that parent’s access to the child. [ 33 ] As I indicated previously, there is simply no evidence of any protection concerns related to the Respondent grandparents’ care of the child.

The evidence is that the Respondent grandparents have been acting protectively and were a placement of safety for the child. They have worked cooperatively with the Society both prior to and after formal intervention by way of this protection application. There is no evidence before me to suggest that this cooperation will not continue. [ 34 ] I am not satisfied on the evidence before me that terms of supervision are required in order to ensure that the Respondent

grandparents continue to act protectively as temporary caregivers for the child. Access for the parents : [ 35 ] There is ample evidence to support a finding that the Respondent mother’s access to the child must remain supervised in the discretion of the Society. The historic and ongoing struggles the Respondent mother has had with illicit substance misuse support a finding that the child would be at risk of harm if in the care of the Respondent mother without supervision and overseeing by the Society.

This is not seriously contested by the Respondent mother. [ 36 ] Conversely, there are no protection concerns related to the care of the child by the Respondent father. There is evidence that the child is happy and content during the times he is spending with the Respondent father, and wishes to go and reside with his father, so long as the Respondent father is in a relationship with his current partner. [ 37 ] OCL counsel made it clear in submissions that the child is bonded and attached to the Respondent father, as well as his partner and her children.

That attachment and affection is an important consideration in determining what access the Respondent father should have on a temporary basis. I find that the Respondent father’s access with the child should be expanded from the current alternating weekend schedule. [ 38 ] I have considered the undisputed evidence that the Respondent father has, at times, refused to bring the child to his extracurricular activities.

Although it is conceded by the Society that this refusal does not rise to the level of a protection concern, I agree that given the evidence of how important extracurricular activities are to this child, it is a matter that should be addressed. [ 39 ] I find that the appropriate way in which to deal with this issue is through a court order requiring the Respondent father to take the child to any scheduled extra-curricular activities that occur during his access periods.

Involvement in extracurricular activities, such as hockey, are clearly important to this child, and I do not accept the Respondent father’s position that taking his son to hockey interferes with his parenting time. A parent supporting their child in their extracurricular pursuits can promote the parent-child bond and provides an opportunity for the Respondent father to demonstrate his commitment to, and support of, his son’s pursuits.

Conclusion : [ 40 ] The child, N.J-A, shall remain in the temporary care and custody of the Respondent grandparents with access to the Respondent parents. [ 41 ] A temporary care order shall issue as follows:

(1) The child, N.J-A, shall remain in the temporary care and custody of the Respondent grandparents.

(2) The Respondent mother shall have access to the child in the discretion of the Society as to location, duration, frequency, and supervision, which may include periods of access exercised in the home of the Respondent grandparents under their supervision.

(3) The Respondent mother shall not be under the influence of alcohol or illicit substances or prescription medications not prescribed for her during her periods of access with the child.

(4) The Respondent father shall have access to the child the first three (3) weekends of every month from Friday after school until Sunday at 7:00 p.m., which weekends shall be expanded to include the Friday or Monday if either is a holiday or P.A. Day., with pick up or drop off being either the Thursday after school or the Monday at 7:00 p.m.

(5) The Respondent father shall have extended access with the child over the Christmas holidays in 2020, which, failing agreement otherwise between the Respondent father and the Respondent grandparents, shall be from Christmas Day, December 25 at 12:00 noon until New Year’s Day, January 1, 2021 at 12:00 noon.

(6) The Respondent father shall have access with the child for the 2021 March Break (as designated by the school board attended by the child) from the Friday school ends at 4:00 p.m. until the following Friday at 7:00 p.m.

(7) The Respondent father shall take the child to all scheduled extra-curricular activities that occur during his parenting time. Released: November 20, 2020 Signed: Justice A.D. Hilliard