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.

Court Information

Ontario Court of Justice

Date: 2020-04-14

Court File No.: Woodstock C104/19

Between:

Children's Aid Society of Oxford County Applicant

— AND —

C.L. C.S. Respondents

In Chambers Endorsement

Per: Covid-19 Protocol April 14, 2020

PAULL J.:

Background and Evidence

[1] As a result of Covid-19 the Children's Aid Society ("Society") has temporarily suspended all supervised access programs and parenting support programs. The pandemic has also caused the suspension of all but urgent OCJ family matters.

[2] The motion before the court was brought by the respondent, C.L. on an urgent basis for a return of the child to the parent's care or the return of the child to C.L.'s care with her residing with the paternal grandparents.

[3] The motion and supporting affidavit were reviewed without responding materials pursuant to the Notice to the Public dated March 19, 2020, which outlined that urgent motions would be initially assessed to determine if prima facie urgency existed, and to give directions if appropriate on further filings and any hearing ordered.

[4] This is the court's ruling on whether prima facie urgency is made out on the moving party's materials filed.

Background and Evidence

[5] The respondents, C.L. (mother) and C.S. (father) are the parents of one child, N.S. born […], 2019.

[6] The child has been in the temporary care of the Society since September 27, 2019.

[7] The child had been in the care of both parents pursuant to an interim order dated August 14, 2019 but was removed to a place of safety on September 27, 2019 because the parents, particularly C.S., were noncompliant with terms of supervision.

[8] The interim Society care order was made in Reasons for Judgment released on November 25, 2019, Children's Aid Society of Oxford County v. C.L., 2019 ONCJ 923.

[9] The child has remained in the temporary care of the Society with C.L. exercising almost daily access supervised by the Society, until Covid-19 resulted in the suspension of its supervised access program. Since that time the respondents have had no face-to-face contact with N.S.

[10] C.L.'s affidavit in support of the motion consists of four short paragraphs which start with the statement that, "CAS is keeping our son from us, blaming Covid-19". It states that all Society programs have been suspended, however, they have done everything asked of them.

[11] The affidavit concludes with a statement that the paternal grandparents are agreeing to C.L. going back to reside in their home with the child until the Society completes drug testing on C.S.

[12] The Society previously supported the plan that C.L. and the child reside with the paternal grandparents with C.S. residing apart. Following September 27, 2019, it was C.L. and C.S. who were refusing to reside apart in order that the child could be placed in the mother's care alone. As noted in the Reasons this unfortunate position by the parents was a significant factor that resulted in the Society care order of November 25, 2019, and the court strongly encouraged the mother to reconsider her position.

Analysis

[13] C.L.'s urgent motion in this case is based on the suspension of all face-to-face access with her son as a result of Covid-19 concerns.

[14] The issue of when an urgent hearing is justified was reviewed in detail by Pazaratz J. in Ribeiro v. Wright, 2020 ONSC 1829. I agree and adopt his analysis. I also agree with Pawagi J. in Children's Aid Society of Toronto v. T.F., 2020 ONCJ 169, that the court's reasoning in Ribeiro v. Wright is equally applicable, with modification, to child protection cases.

[15] There is no presumption that the existence of Covid-19 automatically results in a suspension of in person parenting time or that its existence will automatically result in an urgent hearing.

[16] The court in Ribeiro v. Wright, in the context of the custody and access matter, noted that Covid-19 concerns are of grave importance, however at paragraph 10 noted that, "a blanket policy the 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. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever."

[17] The court at paragraph 21 provided that Covid-19 parenting issues will be dealt with on a case-by-case basis by considering the following:

a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behaviour or plans by the other parent which are inconsistent with Covid-19 protocols.

b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that Covid-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all Covid-19 considerations, in a child focused manner.

d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

[18] Unfortunately, the supporting affidavit filed by C.L. provides virtually no evidence or particulars. However, the suspension of all face-to-face contact between the parents and a very young child is a circumstance that can warrant an urgent motion to ensure that the Society has made all reasonable efforts to explore other alternatives for access other than supervised by the Society while at the same time maintaining strict Covid-19 safety precautions.

[19] As it has done in other cases, the Society is likely offering virtual contact through FaceTime or another mode of social media as an alternative to face-to-face contact. Given the young age of N.S. (10.5 months old) this method of contact is likely to be of little or no benefit to him. It may however be necessary in the short term if there is no other option available given the protection concerns that have previously been found by the court and the strict safety measures required by Covid-19.

[20] The court will require further evidence to determine the issue in this case.

[21] C.L. appears to indicate in her affidavit that she is prepared to temporarily reside apart from C.S. and return to the paternal grandparents as a means to have her son placed in her care until C.S. has addressed the issues which were clearly outlined in the previous Reasons. This position of a short-term separation from C.S. so that C.L. can have N.S. returned to her care was a plan previously supported by the Society but one that she was unwilling to entertain. This unfortunate decision on her part resulted in N.S. being in foster care much longer than necessary had she taken a more child focused view.

[22] If it is in fact her position at this time to reside apart from C.S in order to have the child returned, she shall provide a detailed Plan of Care to the Society confirming the particulars of the plan that she and the child reside once again with the grandparents.

[23] I take judicial notice of the fact that at the present time social distancing and Covid-19 awareness and safety precautions are both commonplace and critically necessary to ensure our individual and collective safety.

[24] As such, the plan provided by C.L. shall also include specific details of the safety measures she and the grandparents are proposing to address Covid-19 concerns. In addition to these details she would need to provide clear evidence that the safety measures are and will be strictly adhered to.

[25] Urgency has not been established with respect to the claim of returning the child to the parents care jointly, and this portion of the motion is dismissed. The lack of face-to-face access during this pandemic is not a reason to return the child to parents who by their conduct or circumstances have been found unable to provide a safe and risk-free home. These findings were made in the previous Reasons.

[26] While C.L. provided insufficient evidence to support her motion, prima facie urgency is established by the Society suspending all of her face-to-face access with her young child.

[27] To be clear, this should not be taken as confirming that the current order will necessarily be varied in any manner sought by C.L. Likewise, it should also not be taken as a finding that Covid-19 concerns will automatically justify the Society's apparent position that for the foreseeable future this child should have no physical contact with his parents.

[28] Further, I do not accept that the Society is "blaming" or using Covid-19 to keep this child from his parents as alleged by C.L. This comment by her shows extremely poor insight into both the protection concerns clearly outlined by this Court in the previous Reasons and the reality of the unprecedented and significant threat that Covid-19 represents. The Society's suspension of supervised access and other programming was clearly a reasonable and necessary response in the circumstances. The question is whether in the particular circumstances of this child and family there is another alternative.

[29] What is required is a comprehensive analysis of the best interests of this child, considering the totality of the circumstances. This will require that C.L. provide the specifics of her new plan(s) to either reside with the child with the grandparents again, or that her access take place in their home.

[30] It will require the Society to undertake its due diligence to review the merits of the plan(s) to see if a less restrictive approach will address both the protection and Covid-19 safety concerns.

Directions

[31] The respondent C.L. shall serve and file by April 30, 2020 sworn evidence addressing the particulars of her plan(s) as directed herein.

[32] The Society shall serve and file responding materials by May 15, 2020.

[33] The motion shall proceed as a basket matter based on the written materials filed.

Released: April 14, 2020

Signed: "Justice S. E. J. Paull"