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 File and Parties

DATE: August 31, 2023 COURT FILE NO.: C42738/22 ONTARIO COURT OF JUSTICE

B E T W E E N:

CHILDREN’S AID SOCIETY OF TORONTO APPLICANT

• and –

B.H. and D.K. RESPONDENTS

COUNSEL: Linda Hofbauer, for the Applicant Elizabeth Julien-Wilson, for the Respondent, B.H. Mira Pilch, for the Respondent, D.K.

HEARD: August 29, 2023

JUSTICE S.B. SHERR

Endorsement

Part One – Overview

[1] The respondents B.H. (the mother) and D.K. (the father) are the parents of a 4-year-old girl (X), who is the subject of this amended status review application.

[2] The parents had a second child (N) who died in November 2021 at the age of 14 months. N drowned in a bathtub. The father faces criminal charges arising from this incident. The father’s criminal release terms preclude him from having contact with X except through a mutually agreed upon third party or through a family court order. He is also prohibited from leaving Canada.

[3] X remained in the mother’s sole care until April 27, 2022, when she was brought to a place of safety by the applicant, the Children’s Aid Society of Toronto (the society). The mother was criminally charged with failure to provide X with the necessaries of life. These charges were laid after neighbours reported that X had been wandering alone outside without a shirt at the end of March 2022.

[4] The mother’s criminal release conditions preclude her from having contact with X except in the direct and constant presence of a society worker, or as ordered by a family court. Her criminal charges remain outstanding.

[5] X was briefly placed with a kin caregiver after being removed from the mother’s care. However, this placement broke down and X has been in the care of the society since June 2, 2022.

[6] On November 15, 2022, Justice Roselyn Zisman found X to be a child in need of protection pursuant to clause 74 (2) (n) of the Child, Youth and Family Services Act, 2017 (the Act). She ordered that X be placed in interim society care for 6 months. The parents’ access to X was ordered to be in the discretion of the society, a minimum of twice each week for the mother and once each week for the father, and in accordance with any criminal undertakings either is subject to.

[7] The parents’ access to X has been supervised by the society since X came into society care.

[8] The society issued its status review application on April 11, 2023. The society sought an extension of the interim society care order for four months.

[9] On May 3, 2023, this case was placed on the Assignment Court list for October 12, 2023, to be heard in the November 2023 trial sittings.

[10] On July 14, 2023, the society issued an amended status review application seeking to place X with the father’s girlfriend (V.P.), subject to terms of society supervision for six months.

[11] The society has now brought this motion to place X in the temporary care and custody of V.P., subject to terms of supervision. In the alternative, the society seeks a temporary order permitting it to arrange graduated access between V.P. and X. [1]

[12] The father and V.P. support the society’s motion.

[13] The mother opposes the society’s motion. She asked in her responding affidavit for a temporary order that X be placed in the temporary care and custody of her mother (the maternal grandmother). In the alternative, she seeks a temporary order permitting the society to arrange graduated access between the maternal grandmother and X. [2]

[14] The court read three affidavits filed on behalf of the society and affidavits from the mother and the father. V.P. signed a consent agreeing to the terms sought by the society. Neither V.P. nor the maternal grandmother filed affidavits.

[15] The issues for the court to determine on this motion are:

a) Do X’s best interests require a temporary change in placement to either V.P. or the maternal grandmother pursuant to subsection 113 (8) of the Act, and if so, on what terms and conditions?

b) What access orders between X and V.P. and X and the maternal grandmother are in X’s best interests?

Part Two – Legal considerations

[16] Subsection 113 (8) of the Act sets out the legal test to change a child’s temporary care and custody on a status review application. It reads as follows:

Interim care and custody

113 (8) If an application is made under this section, 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.

[17] Two lines of cases have developed regarding the interpretation of this subsection.

[18] The two lines of cases are summarized by Justice Melanie Sager in paragraphs 14 to 17 of Catholic Children’s Aid Society of Toronto v. W.P.P., 2020 ONCJ 388 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; Catholic Children's Aid Society of Toronto v. K.G., 2020 ONCJ 208; CAS Algoma v. S.S., 2010 ONCJ 332; and, Children’s Aid Society of Toronto v. S.G., 2011 ONCJ 746.

[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 and Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., M.E., and I.B., 2020 ONSC 1435.

[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.”

[19] Justice Sager endorsed the second line of cases. Her reasons for doing so include:

a) The introduction of the Act in April 2018 ushered in legislation with a very clear mandate to make decisions that are informed by a child’s experiences, best interests and views and preferences.

b) The introduction of the Act has resulted in a movement towards a more liberal approach towards judicial interpretation of child protection legislation, which approach was approved by the Ontario Court of Appeal in Children's Aid Society of Toronto v. J.G., 2020 ONCA 415. At paragraph 45, Justice Benotto writes, “The CYFSA is remedial legislation enacted for the protection of society’s most vulnerable children. It must be liberally construed to the benefit of the child.”

c) The legislation does not include the word material. That omission is deliberate.

d) It is not appropriate to import the definition of material change as set out in domestic case law into child protection proceedings, citing this court in Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, where this court wrote, “Domestic cases are private disputes. Child protection cases involve the intrusion of the state into the autonomy of family life.”

e) Justice Sager asked at paragraph 32 of her decision: Why import the words, “material change” into legislation that is remedial and child focused? This will create in some cases an unnecessarily high bar for a party to reach and is contrary to the court’s obligation to liberally construe the legislation to the benefit of the child.

f) A flexible and liberal approach towards interpreting subsection 113 (8) of the Act is necessary in order to recognize that the best interests of some children will require a placement change due to some change in their life or the lives of their caregivers, possibly not material, while other children may require a significant or consequential change before a placement should be varied on a temporary basis within a Status Review Application. In many Status Review Applications, the factors of stability and continuity will have heightened importance. The flexible approach allows us to consider the individual child before the court and her particular circumstances and needs.

[20] Justice Sager concluded at paragraph 34:

[34] 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.

[21] This court adopted Justice Sager’s flexible approach to subsection 113 (8) in Children’s Aid Society of Toronto v. C.B., 2021 ONCJ 49. Justice Sager’s approach was also adopted by Justice Roselyn Zisman in Catholic Children’s Aid Society of Toronto v. K.A.V., 2022 ONCJ 36, in CAS Niagara v. M.L., 2021 ONSC 4062 and in DCAS v. P.A., 2022 ONSC 606.

[22] All counsel agreed that the flexible approach should be applied in this case and the court has done that.

[23] So, what change in circumstances is required in this case to make a finding that X’s best interests require a change in placement?

[24] The factors that support requiring a very significant change of circumstances, at the very highest end of the spectrum are:

a) The trial is imminent and the trial judge will be better positioned to assess the competing plans after a full presentation and testing of the evidence.

b) X requires stability and continuity. Moving her at this point to one of the proposed caregivers risks further disruption if the trial judge finds that the other proposed caregiver is the better placement.

c) The maternal grandmother proposes to take X to England for a substantial portion of the time pending trial, disrupting her access with her parents.

d) X has only had two supervised visits with V.P. and only resumed in-person visits with the maternal grandmother in July 2023. Being placed with either of them without a transitional period of increased access would likely be very difficult for her.

[25] The factors moving the case down somewhat from the highest end of the spectrum are:

a) X would be moved out of society care to either a family or community placement. When this is in a child’s best interests it is consistent with the primary and secondary purposes set out in section 1 of the Act.

b) X has been in the society’s care in excess of the statutory timelines set out in subsection 122 (1) of the Act.

c) X starts junior kindergarten in September. Ideally, she would start and finish school in the same school this year.

d) Both V.P. and the maternal grandmother have been assessed as appropriate caregivers.

[26] Considering the factors in paragraphs 24 and 25 above, the court finds that there should be a significant change in circumstances before it finds that X’s best interests require a change in temporary placement this close to trial. The court needs to exercise considerable caution before doing so.

[27] Lastly, in assessing X’s best interests, the court considered the relevant best interest factors set out in subsection 74 (3) of the Act which reads as follows:

Best interests of child

74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

Part Four – X

[28] The evidence before the court is that X is emotionally struggling.

[29] X has had multiple placements since being removed from the mother’s care. The mother has claimed that several of X’s caregivers and the father have either abused or neglected X.

[30] X was seen at the George Hull Centre in April 2023 because she was exhibiting increased behavioural challenges. The George Hull Centre has recommended that X requires stability and consistency.

Part Five – Changes in circumstances

[31] There have been changes in circumstances since X was placed in the society’s care on June 2, 2022. At that time, no family or community plans had been presented. Now there are two plans to consider. The maternal grandmother was approved as a caregiver by International Social Services and V.P. was approved as a caregiver by the Halton Children’s Aid Society (Halton CAS) kinship team.

[32] The issue for this motion is whether these changes are sufficient to require a change in placement to either the maternal grandmother or V.P. on a temporary basis.

Part Six – The mother’s plan to temporarily place X with the maternal grandmother

[33] The mother’s temporary plan is for X to live with the maternal grandmother pending the trial of the matter.

[34] At the trial, the mother plans to ask the court to have X returned to her care, or in the alternative, placed with the maternal grandmother until such time as the court finds that X can be returned to her.

[35] The maternal grandmother resides in England. She came to Canada in July to spend time with X and the mother. The maternal grandmother plans to return to England in September 2023 for one month – there is a 60th birthday celebration that has been planned for her.

[36] The mother proposes that X go with the maternal grandmother to England and attend at a daycare there for the month of September. The maternal grandmother would then return to Canada until the trial is completed. The mother proposes to move out of her home in Toronto and the maternal grandmother would reside in the home with X.

[37] The maternal grandmother plans to return to England once this case is completed.

[38] The society and the father oppose this plan.

[39] The following are positive aspects of the mother’s plan:

a) The maternal grandmother has been approved as an appropriate caregiver for X by International Social Services.

b) The parents and X lived with the maternal grandmother in England until X was 7 months old.

c) The maternal grandmother is employed as a nurse in England. She has her own home and is financially stable.

d) X has extended maternal family members who live in England.

e) The maternal grandmother traveled to Toronto in July 2023 and has regularly attended visits with the mother. This shows a commitment to X.

f) X would have the ability to share her culture and heritage with the maternal grandmother.

g) X would move out of society care and live with a family member.

[40] However, the mother did not meet her onus under subsection 113 (8) of the Act. X’s best interests do not require a change in placement to the maternal grandmother at this time for the following reasons:

a) X is struggling and requires a stable and consistent placement. Placing X with the maternal grandmother on a temporary basis runs a real risk of destabilizing her. She will need to adjust to a new placement and if, after a trial, the court finds it is in her best interests to be placed with V.P., she will have to move yet again.

b) The mother’s plan does not provide X with the stability and continuity she requires. X would be uprooted from Canada for one month, live in a new placement away from her parents and would be attending a new daycare. Then, she would be moved again, back to Canada and have to start at a new school.

c) X would not have access with her parents during September if she goes with the maternal grandmother to England. X looks forward to these visits. This disruption to her relationship with her parents is not in her best interests.

d) X did not have in-person parenting time with the maternal grandmother from age 7 months until July 2023, when she was four years old. If X is to be placed with the maternal grandmother, it is in her best interests to be transitioned into that home, with gradual increases in access.

e) The society has raised serious concerns about the maternal grandmother’s ability to support X’s relationship with the father. The maternal grandmother has called the father a murderer to society workers and on one occasion, in front of X, she agreed with the mother who said, “See, they are still making her see him after everything”.

f) The society has had difficulty managing the mother’s anger at visits and meetings. The society workers expressed concerns about the maternal grandmother’s ability to manage the mother’s conduct and set boundaries, if the mother acts inappropriately in front of X. The society has observed that the maternal grandmother remains quiet and does not redirect the mother when she acts inappropriately at visits.

g) The court was provided with little information about how the maternal grandmother would meet X’s special needs. It did not have an affidavit from the maternal grandmother.

h) The mother’s plan was unclear about the respective roles to be played by her and the maternal grandmother in caring for X moving forward. It appears that the mother is only seeking this placement pending trial and only as a fallback position if she does not succeed at trial in having X returned to her.

On the face of the evidence presented at this motion (and this may change after the evidence is fully tested at trial), any plan that includes the mother in parenting X at this time is very problematic and would not provide X with consistency and stability. The mother is still facing criminal charges. The society has set out serious concerns about her conduct at visits and about her making allegations against anyone else caring for X. The mother says that the society is confusing appropriate advocacy with inappropriate aggression. The trial judge will be in a much better position to assess this.

i) The father has alleged that the maternal grandmother was physically abusive to the mother when they resided together in England. The trial judge will be in a better position to test the reliability of this evidence.

Part Seven – The society’s plan to temporarily place X with V.P.

[41] The society’s plan is to place X in V.P.’s care subject to terms of supervision. One of those terms is that V.P. is to not permit the father to have access with X without its prior consent. The father and V.P. support the society’s plan. The mother opposes it.

[42] V.P. resides with her three children, ages 16, 13 and 2, in Oakville. The plan would be for X to attend daycare near her home in Oakville.

[43] The following are positive aspects of the society’s plan:

a) X would move out of society care and live with a community member.

b) Halton CAS conducted a kinship study on V.P. and approved her as a caregiver for X.

c) The society supports this placement.

d) V.P. has been very cooperative with the society. She is polite with its workers. She has signed all consents required, attended scheduled meetings and has followed society recommendations to improve the safety of her home.

e) V.P. has been observed by the Halton CAS worker to be a loving, calm and appropriate caregiver for her children.

f) V.P.’s home was observed by the Halton CAS worker as being clean and appropriate.

g) The society believes that V.P. understands the protection concerns.

h) The society believes that V.P. will comply with terms of supervision and its requirement that the father not have access with X without its prior approval.

i) The society believes that V.P. appreciates the importance of X’s relationship with both parents and will facilitate these relationships.

j) The society believes that V.P. appreciates the importance of fostering X’s cultural background.

k) X’s access with the parents would not be disrupted.

l) X would be able to begin school in Oakville in September.

m) V.P. has expressed to the society that she is prepared to care for X long-term, with or without the father.

[44] However, the society also did not meet its onus under subsection 113 (8) of the Act. X’s best interests do not require a change in placement to V.P. at this time for the following reasons:

a) X will be destabilized if she is temporarily placed with V.P. and then the trial judge finds that she should be moved again.

b) V.P. does not have a pre-existing relationship with X. V.P. just started going on visits at the end of July 2023 – the court was advised that two visits at the society office have taken place. Given X’s need for stability and consistency, it is not in her best interests to be placed with V.P. without seeing how she responds first to extended parenting time. If X is going to be placed with V.P., it is in her best interests that it be done in a transitional and child-focused manner.

c) V.P. recently expressed reservations to the society about caring for X. A society worker and the father deposed that V.P.’s concern was about her ability to manage the mother and not actually about caring for X. The court recognizes that one positive interpretation to these reservations is that they were indicative of reflective thought by V.P. Another interpretation is that V.P.’s commitment to caring for X is fragile and fraught with potential complications.

The evidence indicates that V.P.’s concerns about managing the mother’s conduct have merit. The society’s evidence is that the mother has been relentless in her criticism of the society, X’s caregivers, the father and V.P. It is not realistic to expect that this will change if X is placed with V.P.

It would not be in X’s best interests to be placed with V.P. and then have this plan break down and have to be moved yet again. The trial judge will be in a better position to assess V.P.’s long-term commitment to X and her ability to parent X in challenging circumstances.

d) The evidence filed leaves the court with many questions about V.P.’s relationship with the father. The court recognizes that at trial, the father may allay the court’s protection concerns. However, on paper, the viability of any plan for parenting X that includes the father appears to be problematic. He is facing serious criminal charges arising from N’s death. He has been accused of extensive family violence by the mother. He was charged with assaulting her on one occasion and entered into a peace bond. The trial judge will be in a better position to explore questions such as:

i) What is the nature and quality of V.P.’s relationship with the father?

ii) How do V.P. and the father view what V.P.’s role will be with X in both the short and long term? Is it realistic? What will happen if the court chooses to place serious restrictions on the father’s involvement with X?

iii) What is the nature of the father’s relationship with V.P.’s children?

e) V.P. already has a busy home caring for 3 children, including one with some special needs. Little detail was provided about how V.P. plans to integrate X (and meet her special needs) into this busy household. V.P. did not file an affidavit.

f) The material indicates that V.P. has had previous Children’s Aid involvement. The father dismissed this as being a result of malicious allegations from V.P.’s ex-partner. The trial judge will certainly want further information about this to assess any risk concerns.

Part Eight – Summary regarding changing X.’s temporary placement

[45] To summarize, neither the society nor the mother met their onus to establish that a change in X’s temporary placement is required in her best interests pending trial. The trial is imminent and there are serious concerns and questions about both plans that need to be further explored before X is moved. The trial judge will be in the best position to assess the respective plans after a full presentation and testing of the evidence.

[46] It is critical to X’s stability that her next move be the last one for a long time.

Part Nine – Access

9.1 Legal considerations

[47] Subsection 104 (1) of the Act provides that the court may, in the child’s best interests, 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.

[48] In making an order under subsection 104 (1) of the Act, the court considered the relevant best interest factors set out in subsection 74 (3) of the Act set out above.

9.2 Best interests

[49] Although the court is not placing X with either the maternal grandmother or V.P. at this time, it is in X’s best interest to have increased access with them. There are several benefits to doing this including:

a) V.P. has only had two supervised visits with X. They went well but it would not be child-focused to place X with V.P. without first having gradual increases in access.

b) The maternal grandmother has had more visits with X this summer but they have been supervised and she has not visited with X alone. It would not be child-focused to place X with her without first having gradual increases in access.

c) In assessing X’s best interests it will assist the court to have evidence about how the maternal grandmother and V.P. manage extended access and how X adapts to these visits.

d) In assessing X’s best interests it will assist the court to have evidence about how the maternal grandmother manages the mother and V.P. manages the father around the access issues.

e) It will also assist the court to have evidence about V.P.’s ability to integrate X into her family.

f) It will provide X the opportunity to form deeper relationships with V.P. and the maternal grandmother.

[50] At this point, the plan to place X with V.P. appears to have more viability than the mother’s plan to have X returned to her or placed with the maternal grandmother. The mother still has a criminal prohibition against seeing X unsupervised. The society’s evidence about her judgment and conduct at visits is not encouraging. Sending X to England with the maternal grandmother would rupture her relationship with her parents – particularly the father.

[51] It will also be more challenging to arrange extended temporary access between X and the maternal grandmother pending the trial since the maternal grandmother will be in England in September.

[52] The court will make orders giving X a right of access to both V.P. and the maternal grandmother. This access will be in the sole discretion of the society. However, the court will give the society guidance about how it expects it to exercise its discretion.

[53] With respect to V.P., the society should begin unsupervised visits with X on weekends, so as not to interfere with X’s school schedule. The visits should quickly increase to single overnights and then full weekends. The father should not be present at these visits.

[54] Once the maternal grandmother returns from England in October, the society should arrange day visits on weekends. If X is with V.P. from Friday to Saturday, then X can spend Sunday with the maternal grandmother. There will not be much time to try overnight visits before the trial, but the society should attempt at least one overnight visit in November before the trial, provided that the maternal grandmother has appropriate accommodation. The mother should not be present at these visits.

[55] The society included a number of new access conditions in its notice of motion regarding the parents. It did not address those terms in submissions. The court finds that the existing access orders regarding the parents gives the society adequate ability to manage their access in X’s best interests. There will be no change to the existing order.

9.3 Who should have the right of access?

[56] The court will not make an order that V.P. or the maternal grandmother have a right of access to X. As recently set out at paragraph 40 by the Ontario Court of Appeal in Children’s Aid Society of Toronto v. T.E., 2023 ONCA 149 (T.E.), once a person has a right of access or custody to a child, they are a parent as defined in subsection 74 (1) of the Act. [3]

[57] The Court of Appeal set out in paragraph 52 that a parent has a statutory entitlement to party status pursuant to subsection 79 (1) of the Act. The court wrote at paragraph 49 that this status should be assessed at the time a motion is made to add the person as a party. [4]

[58] In Children’s Aid Society of Toronto v. R.E., 2023 ONCJ 366 (R.E.), Justice Maria Sirivar raised concerns about automatically adding parties in the middle of a case without proper process. In R.E., the child had been placed with his aunt on a temporary without prejudice basis. The society, relying on T.E., submitted that the aunt automatically became a party to the case because she had a right of custody, was a parent and parents have statutory party status pursuant to subsection 79 (1) of the Act. The child’s mother objected to adding the aunt, arguing that adding her would pit them against one another. The aunt agreed and withdrew her consent to being added as a party.

[59] Given that the maternal aunt no longer consented to being added as a party, did not have independent legal advice, and the operative order was a temporary without prejudice order, Justice Sirivar dismissed the society’s motion to add the aunt as a party.

[60] Justice Sirivar wrote the following at paragraphs 9 to 11 of her decision:

9 . The way the Society applies T.E. can have constitutional implications. As the mother articulated in this case, parents can be pitted against both the state and their families. The imbalance of power created by state intrusion in the life of the nuclear family is amplified by the potential emotional/psychological implications of adding family members as parties to the child protection proceeding.

10 . It is imperative that the process followed when adding parties is consistent with Charter values by ensuring procedural fairness to the other parties and to the proposed parties. Moreover, the process must not derogate from the Court’s ability to manage its own process and effectively case manage child protection proceedings.

11 . When the Society seeks to add a party, the process should include:

• notice to the Court; • notice to the parents with a meaningful opportunity to respond; • no service of documents until the party is added; • ILA (including duty counsel) to the proposed party to ensure that he/she understands: • the responsibilities associated with being a party such as filing materials and participating in motions and trial, if necessary; • costs associated with and the process for retaining counsel, including applying for legal aid and finding a lawyer; and • the possible implications of being added as party such as the relief sought being changed (interim society care v. in the care of the party) or the Society no longer providing assistance to caregivers. • ensuring that the relief sought in the Protection Application properly reflects the order sought if the party is added.

[61] If either the maternal grandmother or V.P. are given rights of access to X, according to the decision in T.E., they will be parents, statutory parties and entitled to party status on motion. If added as parties, they would need to be given time to file Answers/Plans of Care. They would be entitled to full file disclosure. Conversely, the other parties would likely be entitled to disclosure about records concerning them.

[62] And, as set out by Justice Sirivar in R.E., a proper process should be followed before adding a party, including time for the person to obtain independent legal advice.

[63] A temporary access construct that would entitle V.P. and the maternal grandmother to party status and require them to be added as parties on motion, is not in X’s best interests. Conceivably, such a motion could be brought on the eve of trial. The decision in T.E. sets out that a final decision about X’s placement could not be made without party status being first determined – and if V.P. or the maternal grandmother are defined as parents and entitled to party status, the court would have to add them as parties [5]. This result would derail the trial and leave X in limbo. This is not in X’s best interests.

[64] It is also not necessary to give V.P. or the maternal grandmother rights of access. Neither of them have asked to be parties. V.P.’s position is being put forward by the society and the father. She will be called by them as their witness at trial. The maternal grandmother’s position will be put forward by the mother and the mother will call her as her witness at trial. Neither V.P. nor the maternal grandmother need to have rights of access to X in this short interval before the trial.

[65] X has already had too much instability and uncertainty in her life. It is imperative that the trial proceed, as scheduled, in November.

[66] The Act differentiates between who has a right of access (an access holder) and who is the person to whom access has been granted (the access recipient) in subsection 105 (7) of the Act in the context of extended society care access orders. [6] This legislation codified the existing common law that had made these distinctions. See: Children’s Aid Society of Toronto v. E.U., 2014 ONCJ 299; Catholic Children’s Aid Society of Toronto v. A.M.Y., 2013 ONCJ 600.

[67] Subsection 105 (7) requires that the court differentiate between access holders and access recipients when making an order placing a child in extended society care. It does not prohibit the court from using these distinctions in other situations. Making these distinctions is even more important since the T.E. decision so that courts don’t inadvertently create parent and party status for a plethora of individuals who might have access with a child – some who would not even want to be parties.

[68] It is in X’s best interests that she have rights of access to the maternal grandmother and to V.P. X will be the access holder. V.P. and the maternal grandmother will be the access recipients.

[69] To be clear, neither V.P. nor the maternal grandmother are parties to this action.

Part Ten – Conclusion

[70] The court makes the following orders:

a) The society’s motion to place X with V.P. on a temporary basis is dismissed.

b) The mother’s motion to place X with the maternal grandmother on a temporary basis is dismissed.

c) X will have a right of access to V.P. That access will be in the society’s discretion. That discretion should be exercised in a manner consistent with the court’s expectations set out in this endorsement.

d) X will have a right of access to the maternal grandmother. This access will be in the society’s discretion. That discretion should be exercised in a manner consistent with the court’s expectations set out in this endorsement.

e) X will be the access holder. V.P. and the maternal grandmother will be the access recipients.

[71] The parties shall serve and file their amended Answers/Plans of Care by September 12, 2023.

[72] Counsel shall work together to prepare and file the Trial Management Endorsement Form at least 5 days before the Trial Management Conference.

[73] The Trial Management Conference will take place on September 19, 2023 at 10:00 a.m. by zoom videoconference. It is scheduled for one hour.

[74] The court thanks counsel for their excellent submissions.

Released: August 31, 2023

Justice Stanley B. Sherr

Footnotes

[1] This request was not in the society’s notice of motion. It was orally sought at the hearing of the motion.

[2] The mother did not serve a Notice of Motion. However, her placement request was clear in her affidavit. The mother also made an alternative request for increased access for the maternal grandmother at the hearing of the motion. The parties agreed that all claims should be heard on their merits.

[3] Paragraph 7 of the definition of parent in subsection 74 (1) includes an individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.

[4] Paragraph 3 of subsection 79 (1) states that the child’s parents are parties to any proceeding.

[5] The court in T.E. wrote the following at paragraph 28: Party status in child protection proceedings can arise in one of two ways: (i) pursuant to r. 7(5) of the Family Law Rules; or (ii) by way of provincial or federal statutes, which both define party status. The Family Law Rules provide a discretionary approach. The statutes are not discretionary: if a person is a “parent”, as defined by either statute, the court has no jurisdiction to find otherwise. (See Catholic Children’s Aid Society of Toronto v. D.L., 2014 ONCJ 587, 51 R.F.L. (7th) 251, at para. 21.)

[6] This is an important distinction as only access holders have the right to bring openness applications if they are served with a Notice of Intent to place a child for adoption.