“Section 113(8) of the CYFSA states that during a status review, 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 interests require a change in the child’s care and custody.
There are two lines of authorities about the threshold to vary a supervision order in a status review pending its final resolution, one line of cases being more stringent than the other. These lines of authorities consider the amount of threshold change that must be demonstrated, in the context of the statutory framework and policy considerations. In so doing, courts also consider the child’s best interests using the factors in section 74(3), as section 113(8) directs.
At ¶ 14-17 of Catholic Children’s Aid Society of Toronto v. W.P.P., 2020 ONCJ 388, Sager J. summarized the two lines of authorities as follows:
[14] One line of cases enumerates a test that mandates a material change in the circumstances of the child such that a change in placement is required to meet her best interests. These decisions emphasize the need to demonstrate a material change or a significant change before it will alter a care and custody arrangement found to be in the child’s best interests following a trial or based upon agreed findings of fact set out in a Statement of Agreed Facts.
[15] The courts in these decisions stress the importance of not interfering with a status quo created by a final order lightly especially when the affidavit evidence on the motion to vary the final placement on a temporary basis is untested. Due to the importance of stability and continuity of care for a child in a child protection proceeding, some courts have interpreted subsection 113(8) and more specifically the use of the words “require a change” to mean that the court must find that the change in circumstances is significant such that it creates a need for a change as opposed to the change being “merely desirable”. See: Kawartha-Haliburton Children’s Aid Society v. A.R. and D.F., 2020 ONSC 2738 (CanLII); Catholic Children’s Aid Society of Toronto v. K.G., 2020 ONCJ 208 (CanLII); CAS Algoma v. S.S., 2010 ONCJ 332 (CanLII); and, Children’s Aid Society of Toronto v. S.G., 2011 ONCJ 746 (CanLII).
[16] The other line of cases state that it is not necessary to import the test of material change in circumstances into subsection 113(8) of the CYFSA and rather what is required is to demonstrate that there has been sufficient change that effects the child’s best interests requiring a change to her placement. What is sufficient depends on the circumstances of the case. See: The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), 2016 ONSC 5925 (CanLII) and Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., M.E., and I.B., 2020 ONSC 1435 (CanLII).
[17] At paragraph 26 of The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), Justice P.W. Nicholson rejects the need to find a material change in circumstances and says, “Although the order at the conclusion of a child protection application is considered a final order, child protection proceedings in general should be considered fluid until the matter is finalized either by termination of all protection orders or a crown wardship order. Therefore, the court is not bound to find a material change in circumstances before a final order made under a child protection application can be varied. The court is called upon at this stage to determine what is in the best interests of the child.”
At ¶ 19-34, Sager J. determined that the more flexible approach should apply. She considered the purposes of the legislation, principles of statutory interpretation and she distinguished the requirement to find a “material change” found in other kinds of family law cases as not being appropriate in child protection litigation. In the end at ¶ 34 she wrote:
In order to determine whether there should be a temporary change to a final care and custody order on a Status Review Application, the court must consider all of the relevant and reliable evidence on the motion within the context of the case as a whole, and decide if the evidence demonstrates that a change in the child’s life has taken place that impacts their best interests requiring a temporary change to their placement pending final adjudication of the Status Review Application.
In Children’s Aid Society of Brant v. A.H., 2020 ONCJ 49, Hilliard J. agreed with Sager J.’s approach on the threshold issue of change. However, she added a further nuance that a different amount of change may be appropriate when the request is to change a placement, versus a request to change parenting time. Hilliard J. referred to the test to change parenting time as being “significantly lower”.”