WARNING
The court hearing this matter directs that the following notice should 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
311 Jarvis Street, Toronto
Date: October 4, 2022 Court File No.: CFO-21-15816
BETWEEN:
CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO Applicant,
- AND -
J.J. (Respondent mother)
- AND -
D.B. (Respondent father)
Before: Justice W. Kapurura
Heard on: September 26, 2022 Reasons for decision released on: October 4, 2022
Counsel: Laura Goldfarb, counsel for the applicant society Danielle Tavernese, counsel for the respondent, J.J. Martha Chamberlain, counsel for the respondent, D.B. Emma Byrnes, counsel for the Office of the Children’s Lawyer (“OCL”).
Part One – Introduction
1The following are the court’s reasons regarding an access motion that was heard by this court on September 26th, 2022.
2The Catholic Children’s Aid Society of Toronto (“the Society”) brought a motion seeking to suspend the Respondent mother (J.J.)’s in-person access visits with the child C.B.
3The Respondent father supports the Society’s motion while the Respondent mother and the OCL oppose the Society’s request.
4C.B. is 8 ½ years old. He is currently placed with the father, D.B., pursuant to a final supervision order dated September 27th, 2021. The mother is having access with C.B.
5The primary issues to be determined at this motion are:
i. What is the applicable legal test under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the Act”) for varying a final access order on a temporary basis? ii. Has the Society met the legal test? iii. If so, what access order should this court make?
Part two – Background facts
6The initial protection application was filed by the Society on February 8th, 2021. The Society became involved with the family due to the following concerns:
i. Constant interviewing and coaching by the mother. ii. The mother’s ongoing allegations that C.B. was being sexually abused by his father and grandfather.
7On September 27th, 2021, an order was made finding the child C.B. to be in need of protection pursuant to section 37(2) (h) of the Act. C.B. was placed in the care and custody of the father, subject to the supervision of the Society, for a period of six months.
8A final order for access was granted in favour of the mother as follows:
- Mother shall have access with C.B. agreed to between her and the Society, but at a minimum once per week for at least two (2) hours, in person, and at least once per week video visits, with supervision, if any, in the Society’s discretion.
9The matter was then scheduled to return on March 27th, 2022, for a status review.
10The Society issued a status review application on March 2nd, 2022, seeking C.B’s continued placement in the care of the Respondent father, subject to the supervision of the Society, for a further period of three months. In the status review application, the Society requests that the Respondent mother’s access with C.B. be at the discretion of the Society.
11A psycho-educational report was completed in April 2022. In the report, C.B. was diagnosed with ADHD (combined type) and a learning disability. Recommendations were made on page 10 of the report. There is a recommendation that the parents learn about ADHD.
12The Society’s access motion was initially scheduled to be heard on July 21st, 2022. The mother attended and requested an adjournment of the motion as she indicated that she was in the process of retaining a lawyer.
13Given the nature of the order that is being sought by the Society, all parties agreed that the mother should get an opportunity to retain legal counsel.
14At the July 21st, 2022, appearance, this court commented to the Society’s counsel that the following clause in their notice of motion was vague:
i. The mother to follow through with the feedback session with Dr. Collins and any recommendations made by Dr. Collins' psychological report dated April 14, 2022.
15The court’s concern was that the Society should, in the notice of motion, have provided specific details of the recommendations that they sought the mother to comply with. Dr. Collins provided five items under the recommendations section. However, some of the terms, with examples below, are not clear as to what the mother is required to do on her own:
Paragraphs 3 : An in-depth and comprehensive assessment of C.B.’s social/emotional functioning is indicated to determine to what extent the conflict between his parents, and his mother’s ongoing preoccupation with the possibility of his having suffered sexual abuse has affected his psycho/social development. From the information provided, it does appear that C.B. can feel impelled to provide his mother with information that aligns with her views and increases her concern. This requires further exploration and elucidation.
Paragraph 4 : Dependant on the mother’s willingness to engage meaningfully in treatment, and the outcome of an assessment of C.B, a course of parent/child work could be implemented, directed at assisting the mother to view C.B. as an individual in his own right, rather than as a vehicle to receive her troubling projections.
16The court anticipated that the Society would address the court’s concern during the period of adjournment. However, the Society did not address the concern.
17The matter was then adjourned to August 11th, 2022.
18On August 11th, 2022, the mother attended court without counsel. Duty counsel, Ms. E. Cameron, assisted her. The mother requested a further adjournment of the motion, advising that the lawyer she was retaining was no longer going to assist her. The mother stated that she was in the process of finding another lawyer.
19The court was satisfied that the mother was making a genuine effort to retain legal counsel.
20This court then invited the parties to make submissions regarding the terms of adjournment.
21The Society sought to have the mother’s visits suspended, without prejudice, pending the hearing of the motion. As per the Society’s Affidavit dated August 9th, 2022, the mother had temporarily paused her in-person visits with C.B. as she advised that she needed to ‘take a break’. The mother had indicated that she was going to spend some time in British Columbia with her family and friends. Further, the mother had indicated that she was moving apartments and would have a new place in Toronto for November 2022.
22The OCL told the court that C.B. was enjoying his in-person visits, but the in-person visits would require consistency.
23The court was concerned about potential prejudice to the child given the mother’s adjournment requests.
24The court adjourned the motion to September 26th, 2022. An order was made, on a temporary without prejudice basis, suspending the mother’s in-person access. The mother was granted two virtual (video) visits every week.
25On September 26th, 2022, the mother attended with counsel and the access motion was heard as scheduled.
26The Society’s request is to vary the final order of the Honourable Justice Weagant dated September 27th, 2021, by suspending the mother’s in-person access until the mother has complied with five (5) conditions listed in the Society’s notice of motion.
27The conditions being sought by the Society are as follows:
i. The Respondent mother to follow through with the feedback session with Dr. Collins and any recommendations made by Dr. Collins' psychological report dated April 14, 2022. ii. the mother to attend at her family doctor to seek a referral to a psychiatrist for a consultation to determine the need for pharmaceutical interventions and shall follow through with any treatment recommendations. iii. the mother begins and engages in regular counselling to address her early trauma. iv. the mother shall attend a parenting/attachment program to help her better understand child development and how her actions impact on the child's well-being. v. The mother complies with the terms of supervision set out in the order of September 27, 2021 and cooperates with the Society to address the ongoing concerns, sign consents to communicate with collaterals.
28The Society identifies the following concerns in support of their request:
a. The mother raises her voice (including towards Society staff) during visits. b. The mother has threatened to sue the agency for the ‘abuse her son is experiencing’. c. On May 17, 2022, the mother told C.B. that she has been talking to journalists about the abuse he has experienced. d. The mother is coaching C.B. on the parenting arrangements he should have. e. The mother continues to make unsubstantiated sexual assault allegations against the father and the paternal grandfather. f. On June 16th, 2022, C.B. brought a toy to his visit and reported to the mother that the toy had been given to him by Society staff. The mother questioned C.B. about the toy until the child started crying. g. The mother has made audio and video recordings of C.B. during visits. h. The mother has asked C.B. how he feels about testifying in court.
29The Society’s materials also provide the following positive information about the mother’s visits:
a. The mother comes prepared to her visits with snacks (and items from home), and sets up the room for C.B. The mother and C.B. engage in various activities together during visits and C.B. enjoys the activities he engages in with his mother. b. The mother is affectionate with C.B. when she arrives and leaves, hugging and kissing him, and C.B. reciprocates this affection c. When the mother is focused, her visits go well.
30In her response to the Society’s motion, the mother filed two affidavits. In her materials, the mother states that:
a. She would agree to the other terms sought by the Society, with her in-person visits not being suspended. b. She agrees to have the visits continue to be supervised. c. That she will not discuss any aspect of litigation or encourage C.B. to discuss sexual allegations. d. That she has taken steps to address the Society’s concerns and will co-operate with the Society. e. That she has taken steps to address the recommendations of Dr. Rex Collins in his psychological assessment report, dated April 14, 2022. f. She was recently prescribed anxiety medication which she is finding to be helpful. g. Her physician recently made a referral for a psychiatric consultation. h. She agrees to attend a parenting program.
31Counsel for the child did not file materials for this motion. However, OCL counsel made the following submissions:
i. The child, C.B., has been consistent and clear in his views that he enjoys his in-person visits with his mother. ii. In the long term, C.B. wants to expand his visits with his mother. iii. Suspension of the mother’s visits would stall progress on C.B.’s visits with his mother. iv. The request sought by the Society is too drastic.
Part three – legal considerations
32Section 104(1) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the Act”) provides as follows:
104 (1) The court may, in the child’s best interests, (a) when making an order under this Part; or (b) upon an application under subsection (2), make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
Emphasis added
33According to Justice Kukurin in Children’s Aid Society of Algoma v. A.B., 2012 ONCJ 351, if a claim is made for an interim variation of a prior (final) access order, section 104 is the applicable provision (previously section 58 under the repealed Child and Family Services Act).
34In a different decision, Justice Kukurin lays out the test to be applied when addressing an access variation claim as follows:
5The criterion for making an access order is the best interests of the child. …
6Although not spelled out in the Act, it is logical that some change in circumstances from the time that the order was made be demonstrated. …
[7] The status quo is represented by the existing order. The person who wants to change that order has the onus of demonstrating not only that some change in circumstances has taken place, but also: (a) that this change in circumstances renders the existing order no longer in the best interests of the child(ren); and (b) that the new order sought now represents what is in the best interests of the child(ren).
[ Children’s Aid Society of Algoma v. C.P., 2013 ONCJ 740 ]
35When a person is directed in Part V of the Act to make a determination in the best interests of the child, section 74(3) of the Act provides a list of considerations to be taken into account. Such considerations include a child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.
36The courts have held that access terms should be proportionate to the risk concerns. In Children’s Aid Society of Brant v. A.C., 2020 ONCJ 505, Justice K.A. Baker stated that:
14… The party seeking to impose restrictions on a parent’s contact or access to a child must demonstrate that it is necessary and that the limit is proportionate to the risk. Any such terms should be child and harm specific and be supported on the evidence.
18Access is the right of the child. It is not in my view, reasonable to create a situation where access is apparently contingent upon terms that are unrealistic or even unachievable. …
37Subsection 1(1) of the Act provides that the paramount purpose of the Act is to promote the best interests, protection and well-being of children.
Part four – Analysis
38The court accepts the Society’s evidence that the mother’s conduct during visits has negatively impacted her visits with C.B. The mother continues to make unsubstantiated sexual assault allegations against the father.
39The allegations the mother makes against the father are very serious. Even though the Society has not verified the sexual abuse allegations, the mother continues to repeat the allegations.
40However, a review of the file shows that some of the concerns raised are not new. At the time of the initial protection application, the mother was also making sexual abuse allegations against the father.
41As per the Society’s evidence, the mother has made disturbing statements to the father and Society staff in C.B.’s presence.
42Given these challenges, the question is whether it is in C.B.’s best interests to suspend his visits with his mother as requested by the Society.
43The Society did not provide the court with sufficient evidence to show how the mother’s conduct has impacted C.B.
44The court agrees with OCL counsel’s submission that the order sought by the Society is too drastic.
45The court further agrees with the submission made by Ms. Chamberlain, counsel for the father, that at this time, the parties (including the Society), do not have a clear understanding of the mother’s mental health.
46The mother’s circumstances are a reminder of the reality of a child protection litigant.
47In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, Justice Benotto stated the following;
68The courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. As Justice L’Heureux-Dubé noted in her concurring reasons in G. (J.), at para. 113, “women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings”. She continued at para. 114:
As well as affecting women in particular, issues of fairness in child protection hearings also have particular importance for the interests of women and men who are members of other disadvantaged and vulnerable groups, particularly visible minorities, Aboriginal people, and the disabled. As noted by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745 (1982), at p. 763:
Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups…such proceedings are often vulnerable to judgments based on cultural or class bias.
Similarly, Professors Cossman and Rogerson note that “The parents in child protection cases are typically the most disadvantaged and vulnerable within the family law system . . . .”: “Case Study in the Provision of Legal Aid: Family Law”, in Report of the Ontario Legal Aid Review: A Blueprint of Publicly Funded Legal Services (1997), 773, at p. 787.
69Poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings. If we do not face up to this reality we risk forgetting the hard-learned lessons of the past by exacerbating pre-existing inequities and harms. The miscarriages of justice outlined in the Report of the Motherisk Commission (2018: Ontario Ministry of the Attorney General) speak, by way of example, to the significant imbalance between parents and Children’s Aid Societies, noting that parents, even when represented by counsel, were “simply overpowered” (at p. 121). Fairness in the child protection context demands recognition of these dynamics.
48C.B. is eight and a half years old. He is at an age and stage where he can freely express his views. He has special needs, having been diagnosed with ADHD and a learning disability. C.B.’s views and preferences are that he wants to maintain in-person visits with his mother. OCL counsel further advised that C.B. is enjoying those visits.
49The preamble to the Child, Youth and Family Services Act (“the Act”) provides that the Act aims to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child (“the Convention”). Article 12 of Convention provides that:
- States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
50The preamble to the Act further provides that:
The Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard.
51Accordingly, it is critical that as this court looks for the appropriate remedy to address the protection concerns that have been raised by the Society (during the mother’s visits), the child’s voice is also considered.
52Another consideration is the child C.B.’s special needs. C.B. was diagnosed with ADHD and a learning disability.
53In M.P. v. Windsor-Essex Children’s Aid Society and S.G, 2022 ONCJ 298, Justice Vickerd applied Article 23 of the Convention in a child protection matter where the child had special needs.
54Article 23 of the Convention reads as follows:
States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.
States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.
Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.
55Accordingly, C.B. must continue to enjoy a full and decent life, in conditions that ensure dignity.
56The mother has now retained counsel. Most of the allegations against the mother pertain to a period when the mother was self represented.
57After the mother retained counsel in this proceeding, the following has transpired:
i. the mother has signed consents to allow the Society to contact her family doctor and her counsellor. ii. The child protection worker has contacted the mother’s family doctor and the Society is working on a list of questions to forward to the family doctor. iii. Even though the visits are temporarily occurring as virtual visits only, no major access incidences have been reported. iv. The mother has reported that her family doctor has made a referral to a psychiatrist.
58This court finds that suspending C.B.’s in-person visits with his mother on an ongoing basis would be contrary to C.B.’s best interests. His counsel has been clear that C.B. is enjoying the in-person visits and is looking to expand his visits with his mother.
59This court agrees with OCL counsel’s submission that suspending the visits on an ongoing basis would stall progress in this matter.
60According to section 1 of the Act, this court must find the least disruptive course of action in addressing the protection challenges.
61This court finds that the request sought by the Society has far-reaching consequences. Further, the Society’s request does not consider C.B.’s views and preferences, including the need to exercise caution given C.B.’s special needs.
62At the same time, it is necessary to put conditions in place to manage the mother’s conduct during visits. There is no doubt that the mother’s conduct during visits has become disruptive to the smooth flow of her visits with C.B.
Part five – Conclusion
63Accordingly, for the reasons above, this court finds that it is in C.B’s best interests to vary the final access order of the Honourable Justice Weagant dated September 27th, 2021, by adding the following terms:
i. The Society shall have the discretion to end an in-person visit early if the mother is not complying with directions or instructions from an access supervisor. The visit may also be ended if the mother’s conduct is interfering with the visit. ii. The other terms ordered on August 11th, 2022, which were made on a temporary, without prejudice basis, shall continue. iii. the mother shall not discuss adult issues with the child and shall not discuss court-related matters with the child. iv. the mother shall not video or audio record the child during visits.
64The Society’s request to suspend the mother’s visits is hereby dismissed.
65The mother’s in-person visits with C.B. which were suspended on August 11th, 2022 on a temporary without prejudice basis, are hereby reinstated.
66The terms of this order shall be reviewed at the next court date, to assess compliance and whether any other additional access terms are required or necessary.
67This matter is adjourned to November 30th, 2022, at 10:30 a.m. for a case conference (by video conference).
Released: October 4, 2022 Signed: Justice Wiriranai Kapurura