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.
87.— (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.
87.— (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.
Court Information
Date: April 2, 2020
Court File No.: CFO 19-15607
Ontario Court of Justice
Endorsement
Justice: M.B. Pawagi
Parties
Applicant: Children's Aid Society of Toronto
Counsel: Ms. Persad
Respondents: T.F. (mother) and K.M. (father)
Counsel: Ms. Lowo for T.F.; Ms. Campbell for K.M.
Nature of the Case
[1] This is my ruling on the society's 14B motion dated March 30, 2020 seeking an order enabling the society to suspend all in-person access to the mother due to the COVID-19 crisis.
Facts
[2] The current order, made on consent on January 31, 2020, placed the child (now age 18 months) in the temporary care of his father, subject to the supervision of the society, with specified access to his mother as follows:
- Every Thursday and Sunday from 10 a.m. to 5 p.m.;
- Overnight access exercised at the maternal grandmother's home every Saturday overnight (with mother permitted to be present);
- Further or other access as approved by the society.
The overnight access at the maternal grandmother's home is not presently taking place, but the specified access with the mother is taking place, along with additional access approved by the society.
Positions of the Parties
[3] The society's 14B motion seeks the following relief: an immediate variation of the access order, on a without prejudice basis, to be at the discretion of the society, and the scheduling of an urgent motion date for a hearing on the issue of access. The society intends to exercise its discretion by suspending all in-person access until further notice.
[4] The mother and father both filed 14B motions in response taking the position that the court should not vary access without a hearing, as access is not a procedural or uncomplicated matter that may be dealt with by 14B motion. Their counsel are available on the hearing dates proposed by the society to address the issue of access.
[5] The parties each rely on the submissions in their 14B motions only, with no affidavits attached.
Analysis and the Law
[6] Due to the COVID-19 crisis, the Ontario Court of Justice issued an announcement (updated March 28, 2020) that all family court matters scheduled up to May 29, 2020 shall be adjourned for 8 to 12 weeks, with exceptions for certain urgent matters as specified in the protocol (such as place of safety hearings pursuant to s.90 of the Child, Youth and Family Services Act). Any other requests for an urgent hearing are to be determined by a judge.
[7] The Society's urgent request in this case is based on its COVID-19 Pandemic Response issued March 18, 2020; namely, that the society is suspending all in-person access visits until further notice in cases where access is in the discretion of the society, and the society is seeking orders varying access to be at the society's discretion in cases where there are specified access terms. The society submits that its response is "in accordance" with the Provincial Government's direction on social distancing.
[8] The mother has been spending a substantial amount of time with the child, including additional time approved by the society, as per the January 31, 2020 order. The parents are in agreement that it is in the best interests of the child for this access to continue. The parents submit they are adhering to COVID-19 directives. The society makes no allegation that the mother is engaging in behaviour that is inconsistent with any such directives. The society makes no allegation that the father, who has primary care of the child, would fail to protect the child should any concern arise.
[9] The question of when an urgent hearing is justified was addressed recently and in depth by Pazaratz, J. in Ribeiro v. Wright, 2020 ONSC 1829. While that case concerned a domestic matter, his reasoning is equally applicable to child protection matters: "A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child" (at para. 10).
[10] I agree with and adopt his analysis. Pazaratz, J. notes that COVID-19 concerns are of grave importance, but what must also be considered is the importance to a child of maintaining parental relationships. He concludes, at para. 20 of his decision, that there is no presumption that the existence of the COVID-19 crisis automatically results in the suspension of in-person parenting time, and furthermore, there is not even a presumption that raising the COVID-19 crisis will automatically result in an urgent hearing.
[11] The society here is relying solely on its blanket policy and presumptions. The society provides no specific evidence of behaviour by the mother that is inconsistent with government COVID-19 protocols.
Conclusion
[12] The society's 14B motion is dismissed.
[13] This order is without prejudice to the society's ability to bring a further 14B motion should specific COVID-19 problems arise.
[14] The issue of costs is reserved to the return date.
Justice M.B. Pawagi
