Children’s Aid Society of London and Middlesex v. M.F.G.W., 2022 ONSC 1626

Case Background

This case involved a Status Review Application initiated by the Children’s Aid Society (CAS) concerning two children:

• S.W. (17 years old)

• S.H. (6 years old)

A 2018 order placed both children under a six-month supervision order with their mother. However, due to continued concerns about the mother’s mental health, instability, and lack of engagement with services, CAS sought:

• Termination of the supervision order for S.W. (who had relocated to New Brunswick).

• Extended care for S.H. and eventual custody for kin caregivers L.B. and Q.B.

Key Issues for Determination:

1. Do the children remain in need of protection?

2. If so, what are the appropriate custody and care orders?

3. What access arrangements should be made for the parents?

Legal Framework

The court’s decision was guided by statutory provisions from the Child, Youth and Family Services Act, 2017 (CYFSA) and principles from established case law.

1. Paramountcy of the Child’s Best Interests

• CYFSA, s. 1(1): The primary purpose of the Act is to promote the best interests, protection, and well-being of children.

• The court emphasized that any decision must prioritize the child’s welfare over parental rights (Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), at para. 37).

2. Determination of Child in Need of Protection

• CYFSA, s. 74(2)(b)(i): A child is in need of protection if there is a risk of physical harm due to a parent’s actions, failure to act, or inability to provide adequate care.

• The court found that both children remained in need of protection due to the mother’s mental health issues, instability, and lack of engagement with services.

• The Supreme Court of Canada in M.(C.) (1994) confirmed that a status review hearing does not reconsider the original protection order but evaluates whether continued protection is necessary.

3. Status Review Application & Court’s Authority

• CYFSA, s. 113: Allows a children’s aid society to seek a Status Review Application if there are ongoing concerns about a child's protection.

• CYFSA, s. 114: Grants the court discretion to vary or terminate an order based on the child’s best interests.

• In Children’s Aid Society of Oxford County v. W.T.C., 2013 ONCA 491, the Ontario Court of Appeal held that determining a continued need for protection does not require proving the initial grounds under s. 74(2) but instead assessing current risks and circumstances.

4. Custody Orders for Kinship Caregivers

• CYFSA, s. 102(1): Allows the court to grant custody to a non-parent (e.g., kin caregivers) when it is in the child’s best interests.

• The B family (L.B. and Q.B.) provided a stable home for S.H. and were granted custody under this provision.

• In Children’s Aid Society of Toronto v. H.F., 2020 ONCJ 526, the court reaffirmed that kin placements must be prioritized when they provide stability and permanence.

5. Access Orders

• CYFSA, s. 104: The court may order access where it is in the child’s best interests.

• CYFSA, s. 105(1): Requires the court to grant access unless it determines that continued contact with the parent is not in the child’s best interests.

• The court granted limited and supervised access to the parents, with discretion given to L.B. and Q.B.

Findings and Court Decision

1. Continued Need for Protection:

• The court found that both children remained in need of protection under s. 74(2)(b)(i) CYFSA due to:

  • The mother’s ongoing instability, housing issues, and failure to engage with mental health services.

  • The father of S.H. (T.J.H.) being incarcerated with a history of addiction and instability.

  • The father of S.W. (C.S.) having no involvement in the proceedings.

2. Disposition Orders in the Best Interests of the Children:

S.W.:

• The court terminated the previous order concerning S.W. as he was now living independently with paternal family in New Brunswick and no longer required intervention.

S.H.:

• Custody was granted to L.B. and Q.B. under s. 102 of the CYFSA.

• The caregivers were granted full decision-making responsibility and authority to obtain government identification for S.H. without parental consent.

• The court rejected the mother’s and T.J.H.’s claims for custody due to their instability.

3. Access Orders for Parents:

• The court ordered:

  • Weekly video access (minimum 15 minutes per parent).

  • In-person access every four months, arranged in advance.

  • L.B. and Q.B. were granted discretion over supervision of visits.

  • The caregivers were permitted to travel internationally with S.H. without parental authorization.

Key Considerations and Evidence

• Expert Testimony (Dr. Sas):

  • The mother displayed paranoid ideation, was disorganized in thought, and lacked insight into her mental health issues.

  • The mother’s erratic behavior during visits confused S.H. and made access challenging.

  • Recommended permanent placement for S.H. with the B family.

• Parental Involvement:

  • The mother frequently missed visits and exhibited unpredictable behavior.

  • The father of S.H. (T.J.H.) was incarcerated and struggled with addiction.

  • The father of S.W. (C.S.) was absent from the proceedings.

• Children’s Well-Being:

  • S.W. was thriving in New Brunswick with his paternal relatives.

  • S.H. was well-adjusted in the care of L.B. and Q.B., benefiting from stability and structure.

Conclusion

The court prioritized the best interests of the children, ensuring permanency and stability for S.H. with her kin caregivers and terminating the supervision order for S.W. Parental access was permitted but subject to restrictions to protect the children’s well-being.

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Children's Aid Society of the Regional Municipality of Waterloo v. A.C. and D.C.

Overview

This case involves child protection proceedings under the Child, Youth and Family Services Act, 2017 (CYFSA) regarding an 8-year-old child, L.K.C. The case stems from a status review application and summary judgment motions filed by the Children’s Aid Society of the Regional Municipality of Waterloo (the Society) and the father (D.C.), both seeking custody of the child.

The Society sought to place the child in the primary care of the father with the termination of its supervision. The father sought sole custody, with supervised access for the mother (A.C.) and the maternal grandmother. The mother opposed this, citing concerns over parental alienation, and requesting therapeutic reintegration counseling to restore her relationship with the child.

Legal Framework

1. Child Protection & Best Interests of the Child

Under Section 1(1) of the CYFSA, all decisions affecting a child must be made with the paramount consideration of the child’s best interests, safety, and well-being.

The best interests test under Section 74(3) of the CYFSA considers multiple factors, including:

• The child’s views and wishes, given due weight based on age and maturity.

• The child’s emotional, physical, and developmental needs.

• The importance of maintaining family relationships.

• The need for stability and permanency in the child’s care.

In Catholic Children's Aid Society of Hamilton v. R.M. and N.M., 2015 ONSC 5101, the court reiterated that stability and permanency are critical factors in child protection proceedings and that legal proceedings should not be used to delay decision-making.

2. Summary Judgment in Child Protection Cases

Rule 16 of the Family Law Rules, O. Reg 114/99 permits the court to grant summary judgment where there is no genuine issue requiring a trial. The burden of proof is on the moving party to demonstrate that the case can be decided based on affidavits and documentary evidence.

The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 set out the modern test for summary judgment, emphasizing that trials are not always necessary when a fair and just determination can be made based on available evidence.

The Ontario Court of Appeal in Kawartha-Haliburton CAS v. M.W., 2019 ONCA 316 confirmed that summary judgment is appropriate in child protection cases when the best interests of the child require timely decision-making and no genuine issue requires a trial.

3. Custody and Access Orders Under CYFSA

Under Section 102 of the CYFSA, the court may grant custody of a child to a parent or another caregiver where it is in the child’s best interests. In this case, the court determined that the least disruptive placement for the child was with the father.

Regarding access, Section 104(1) of the CYFSA provides that the court may make or vary an access order where it is in the child’s best interests. Furthermore, Section 104(2) requires that if a custody order removes a child from the care of one parent, the court must make an access order unless it is not in the child’s best interests.

In Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, the Ontario Court of Appeal clarified that access orders must be tailored to the child’s specific needs and circumstances, considering potential long-term impacts.

4. Parental Alienation and Reunification Counseling

The court considered expert recommendations regarding the mother’s role in the child’s life. Dr. Kristen McLeod, a trauma and attachment specialist, advised that the child exhibited shame-based behaviors and that parental reunification should be a goal.

Ontario courts have recognized the importance of gradual reintegration in cases involving parental alienation or high conflict custody disputes. In Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423, the court emphasized that access arrangements should be structured to facilitate healthy parent-child relationships, even where the child initially resists contact.

Key Facts

1. Background & Parental History

   • The mother (A.C.) had a history of criminal activity, drug use, and child protection involvement dating back to 2006.

   • The child was apprehended multiple times due to unsafe conditions in the mother’s home.

   • In May 2019, the court placed the child in the father’s care under a supervision order by the Society.

   • The mother was subsequently incarcerated for drug-related offenses.

   • The father has criminal history and past substance abuse but has been maintaining a stable home environment.

2. Child’s Current Well-being

   • The child experienced emotional and behavioral challenges, including violent outbursts and suicidal ideation in school.

   • He has been in trauma counseling since November 2020.

   • Despite past issues, reports indicate that he has adjusted well in the father’s care and expressed a desire to stay with him.

3. Access & Supervision Issues

   • The mother had supervised visits but missed multiple scheduled access periods.

   • She was concerned that the father was alienating the child from her and his maternal relatives.

   • The maternal grandmother had supervised visits, which were terminated by the father after a phone call between the child and the mother.

   • A psychologist recommended that parental reunification should be a goal and suggested a gradual reintegration process.

Court's Decision

Findings

• The child remains in need of protection, and returning him to the mother was not in his best interests due to her continued instability.

• A Section 102 custody order was granted in favor of the father.

• The father had not sufficiently encouraged the child’s relationship with the mother and maternal relatives, warranting an access order.

Orders Issued

1. Custody: The father was granted sole custody of the child.

2. Access for the Mother:

   • Supervised phone calls once a week.

   • In-person supervised visits every two weeks for four hours, increasing to overnight access after 30 days.

   • The mother’s continued access was conditional on her progress in reunification therapy.

3. Access for the Maternal Grandmother & Sibling (J.C.):

   • Monthly visits for four hours.

4. Counseling:

   • The child was to continue therapy.

   • The mother was allowed to write a letter to the child to be presented through the therapist.

5. Future Reviews:

   • The parents could revisit access arrangements in February 2022 through the Unified Family Court if disputes remained.

Key Takeaways

• The court prioritized stability and permanency for the child.

• Despite the mother's rehabilitative efforts, her past criminal and drug history led the court to find that she was not yet ready for full custody or unsupervised access.

• The court intervened to ensure continued contact between the child and his maternal relatives, rejecting the father’s stance that access should be at his discretion.

• The decision reflects a balanced approach, recognizing the child’s desire to stay with the father while ensuring gradual reconnection with the mother.