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.

DATE: January 18, 2024

COURT FILE NO. C30007/19

ONTARIO COURT OF JUSTICE

B E T W E E N:

CHILDREN’S AID SOCIETY OF TORONTO

KAREN FREED, for the APPLICANT

APPLICANT

• and – M.O., J.K. and M.B.

OLIVIA OPREA, DUTY COUNSEL, for the RESPONDENT, M.B.

RESPONDENTS

THE RESPONDENTS, M.O. AND J.K. not participating

HEARD: JANUARY 15, 2024

JUSTICE S.B. SHERR

Endorsement

Part One – Introduction

[1] On January 15, 2024, the court delivered oral reasons granting a motion brought by the Children’s Aid Society of Toronto (the society) to place C.O. (the child) in the temporary care and custody of the respondent, M.B. (the maternal aunt), subject to its supervision. The court ordered temporary terms and conditions relating to this placement, including permitting the maternal aunt to travel with the child to Ghana for one month, without the consent of the other respondents.

[2] This motion was brought within a protection application regarding the child, who is 5 years old. The society is seeking an order finding the child in need of protection, with a disposition placing the child in the care and custody of the maternal aunt, subject to terms of society supervision for 6 months.

[3] This temporary order was made on the consent of the society and the maternal aunt. The child’s biological parents, M.O. (the mother) and J.K. (the father) have not participated in this case, although they were served with the protection application. The father has sent a signed consent to the maternal aunt for the proposed trip to Ghana.

[4] The issue of the court’s jurisdiction to make the travel orders sought was raised at the previous court appearance. The judge hearing the matter adjourned the motion to be heard by this court.

[5] The society and the maternal aunt jointly submitted that the court has the authority to make the requested temporary travel orders. The court agreed. Counsel submitted that it would be helpful to child protection participants for the court to provide written guidance on the jurisdictional issue raised. The court agreed to provide these reasons.

Part Two – Brief background

[6] The society first commenced a protection application concerning the child on January 4, 2019, after removing the child from the mother’s care at birth.

[7] The society became involved due to concerns about the mother’s mental health. The mother acknowledged that she was unable to care for the child. The father did not present a plan to care for the child.

[8] The child was found to be a child in need of protection on April 25, 2019 by Justice Roselyn Zisman. The child was placed in the care and custody of a different family member, R. O.-W., subject to society supervision, for six months.

[9] On December 4, 2019, on the status review application, Justice Carolyn Jones made a final order placing the child in the care and custody of R. O.-W., subject to society supervision, for four months.

[10] On July 21, 2020, on a status review application, Justice Zisman made a final order placing the child in the care and custody of the maternal aunt (the final order), pursuant to subsection 102 (1) of the Child, Youth and Family Services Act, 2017 (the Act). The final order permitted the maternal aunt to obtain or renew government documentation for the child without the consent of any other party. Access to the child by the mother and the father was ordered to be in the discretion of the maternal aunt.

[11] The child has lived with the maternal aunt since July 21, 2020. The father now lives in Africa. The mother has not seen the child since July 2020.

[12] The maternal aunt contacted the society in February 2023. She felt that there had been an error in the final order. She had signed a caregiver consent, prepared by the society, setting out that she could travel with the child outside of Canada, without the consent of the mother and the father. However, that term was omitted from the final order. The society advised the maternal aunt to bring a motion to change the final order in Family Court.

[13] The maternal aunt also told the society that she was struggling with caring for the child. The child had been diagnosed with autism after the final order was made.

[14] The society worker attested that the maternal aunt has had challenges navigating the social service system without the assistance of the society. The maternal aunt has also expressed feeling overwhelmed trying to meet the child’s financial needs. At times, she has wavered about her ability to provide long-term care for the child.

[15] The society has provided the maternal aunt with considerable assistance and support since she called for help. The child is now receiving autism services weekly. The maternal aunt is receiving respite care for the child. The society also assisted her in obtaining additional funding for the child, including funding from the Children’s Aid Foundation. However, she is still struggling in managing all of the child’s needs.

[16] The society issued this protection application on December 21, 2023, seeking an order placing the child in the care and custody of the maternal aunt, subject to the supervision of the society for six months.

[17] The maternal aunt first advised the society that she planned to take the child on a trip to Ghana in March 2023. However, she never brought the motion to change the final order, as suggested by the society. The maternal aunt is not a sophisticated litigant and it is evident she is overwhelmed by the process. She did not go on the planned trip.

[18] In September 2023, the maternal aunt advised the society that she planned to travel to Ghana with the child in January 2024. In December 2023, the maternal aunt provided the society with details regarding how the child would be cared for on the trip.

[19] The society supports the maternal aunt and the child going on the trip to Ghana. It sought the travel orders on this motion as the maternal aunt requires them to take the child with her. The society submitted that the trip would be good for the maternal aunt and for the child.

Part Three – Analysis of court’s authority to order temporary incidents of custody

[20] The jurisprudence sets out that when a court makes a final custody order pursuant to subsection 102 (1) of the Act (a section 102 order) it can make any of the orders available to the court under section 28 of the Children’s Law Reform Act (the CLRA). See: Windsor-Essex Children’s Aid Society v. E.W., 2014 ONCJ 562 and subsection 102 (2) of the CLRA. Section 28 of the CLRA reads as follows:

Parenting orders and contact orders

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

[21] It is common for child protection courts, when making final section 102 custody orders to order incidents of custody dispensing with the consent of a parent, so that the child’s caregiver can obtain government documentation for a child and travel internationally with a child. See: Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 145; Children’s Aid Society of Toronto v. L.N., 2023 ONCJ 235; Catholic Children’s Aid Society of Toronto v. A.P., 2023 ONCJ 334; Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, affirmed on appeal, 2020 ONSC 4993. Children’s Aid Societies in Toronto now routinely include these requests in their applications for section 102 orders.

[22] In Catholic Children’s Aid Society of Hamilton v. V.A.N.E. and M.E., 2022 ONSC 4684, Justice Lene Madsen set out incidents of custody that the court can order when making a section 102 order as follows:

a. Decision-making responsibility; b. Time-sharing – regular and holiday schedules; c. Contact with persons other than a parent; d. Communication between parties; e. Prohibitions on changing a child’s residence; f. Any other order the court considers necessary.

[23] However, can the court order similar incidents of custody when making a temporary care and custody order?

[24] The court finds that it does have this authority.

[25] The society brought its motion pursuant to section 94 of the Act. Specifically, the society sought an order pursuant to clause 94 (2) (b) of the Act. Clauses 94 (2) (a) and (b) of the Act read as follows:

Custody during adjournment

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

[26] The maternal aunt was the person who had charge of the child immediately before intervention under Part V of the Act.

[27] Subsection 94 (6) of the Act sets out the terms and conditions that can be made in an order made under clauses 94 (2) (b) or (c) as follows:

Terms and conditions in order

(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,

(a) reasonable terms and conditions relating to the child’s care and supervision;

(b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

[28] While the Act does not specifically use the term “incidents of custody”, as it does in clause 28 (1) (b) of the CLRA, the jurisprudence informs the court that the term custody, used in the Act, includes “incidents of custody”. This makes sense as there are many elements involved in having custody of a child – the ability to obtain government documents for a child and to travel internationally with a child amongst them.

[29] Custody has been described as a “bundle of rights and obligations,” referred to as “incidents of custody”, which includes the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about the child’s education, religion, medical care and general health and activities. See: Young v. Young, (1993), 49 R.F.L. (3d) 117 (S.C.C.); Chou v. Chou, [2005] O.J. No. 1374 (S.C.J.); Izyuk v. Langley, 2015 ONSC 2409.

[30] The court further finds that the right to order incidents of custody is inherent in the language used in the Act, specifically:

a) Clause 94 (2) (b) of the Act states that the child may be placed with a person on such reasonable terms and conditions as the court considers appropriate. b) Clause 94 (6) (a) of the Act states that the court may impose reasonable terms and conditions relating to the child’s care and supervision.

[31] In A.M. v. C.H., 2019 ONCA 764; M.P.M. v. A.L.M., 2021 ONCA 465, the Court of Appeal set out that a “large and liberal interpretation of the statutory and regulatory powers conferred upon the courts to make a wide variety of orders with regards to parenting is entirely consistent with the courts’ duty to promote the best interests, protection and well-being of children.”

[32] While these cases referred to parenting orders made under the Divorce Act and the CLRA, these comments are possibly even more germane to child protection cases where the court is mandated by the paramount purpose set out in subsection 1 (1) of the Act to promote the best interests, protection and well-being of the children.

[33] This flexible approach to interpreting the Act was endorsed by the Court of Appeal in Children's Aid Society of Toronto v. J.G., 2020 ONCA 415. The court wrote that a flexible approach is required because the Act is remedial legislation enacted for the protection of society’s most vulnerable children. It should be liberally construed to the benefit of the child (see par. 45).

[34] Terms and conditions that are ordered pursuant to clauses 94 (2) (b) and 94 (6) (a) of the Act can serve different purpose. Often, the terms are ordered to address specific risk concerns. When a court makes such orders, it must ensure that the terms are proportionate to the risk concerns. See: Children’s Aid Society of Toronto v. T.J.-M. 2010 ONCJ 701.

[35] However, other terms and conditions will be ordered, where appropriate, to facilitate the success of the child’s placement with a parent or a family or community member. These terms could be about contact and communication. They could be about the ability of a caregiver to obtain documentation for the child that will facilitate academic, medical and other services for the child. They can be about the child’s ability to travel internationally.

[36] Child protection courts have ordered temporary terms and conditions permitting a caregiver to relocate with the child, both in and out of Canada. See: Children’s Aid Society of Toronto v. G.M., 2015 ONCJ 463; Linck Child, Youth and Family Supports v. P.A., 2023 ONCJ 288; Durham Children’s Aid Society v. P.A., 2022 ONSC 606.

[37] Child protection courts often order temporary terms and conditions facilitating the ability of a child to travel internationally. See: Catholic Children’s Aid Society of Toronto v. C.P.I., 2023 ONCJ 293, where costs were awarded against a parent who unreasonably refused to provide a travel consent.

[38] Whether it is in a child’s best interests to make temporary travel orders will be case specific. See: Verbanac v. Dawson, 2019 ONSC 4473; Saini v. Tuli, 2021 ONSC 3413. The court will need to balance the benefits of travel against its risks. Risks in a child protection case could include:

a) That it will impair the ability of a parent to have a child returned to their care. b) That it will impair the development of the child’s relationship with a parent. c) Disruption to a child’s schooling or services being provided for the child. d) That the child cannot be adequately protected if outside the jurisdiction. e) That the country the child is traveling to is not safe, or does not have the resources to adequately address any of the child’s medical needs. f) Flight risk – particularly if the trip is to a country that is not a signatory to the Hague Convention. However, the mere fact that an applicant is seeking to travel with children to a country that is not a signatory to the Hague Convention does not justify an order preventing such travel in the absence of evidence that there is some possibility that the children might be abducted. See: Johnson v. Johnson, [1996] O.J. No. 490 (General Division); Hamid v. Mahmoud, 2012 ONCJ 474; Purushothaman v. Radhakrishnan, 2014 ONCJ 300; Al Jarrah v. Ashmawi, 2017 ONCJ 218.

[39] However, there can be many benefits to a child in granting travel orders in a child protection case, including:

a) Travel to the family’s ancestral homeland to spend time with extended family is a very valuable opportunity for a child. See: Yacoub v. Yacoub, 2010 ONSC 4259; D.G. v. A-G. D., 2019 ONCJ 43. b) Many children in child protection court have relationships with non-custodial parents who live outside of Canada. They may have regularly visited that parent prior to society intervention. It is not in a child’s best interests to prevent them from travelling outside of Canada to see their parent (or any other family member who is important to them) just because there is a child protection case ongoing. c) Similarly, it will be in the best interests of older children to travel outside of Canada for school events, or for sports tournaments and music/dance competitions. Temporary terms and conditions should be made in those situations to facilitate this travel. d) It is important to the emotional well-being of many of the caregivers involved in child protection court to be able to travel to their ancestral homeland to see family, attend at family events and occasions and at times, to attend family funerals or to see sick loved ones. It will be in a child’s best interests to have these important needs of their caregivers met. e) The Act emphasizes the importance of finding and supporting family and community placements before placing a child in society care. This is reflected in section 94 and subsection 101 (4) of the Act. It could have a chilling effect on the society’s ability to find appropriate caregivers for a child if the court did not have the authority to make temporary travel orders once a child protection case started. This would not be in the best interests of children. f) In determining a child’s best interests, the court shall consider the child’s race, ancestry, place of origin, colour and ethnic origin, and their cultural and linguistic heritage. See: clauses 74 (3) (b) and (c) of the Act. Making temporary travel orders, where appropriate, gives effect to these best interests considerations. g) Many caregivers will take the other children in their household on trips abroad, whether to their homeland, or on vacations to other countries. The court should consider the risks to the child of not permitting them to go on such family trips. How would a child feel if they were excluded from these trips if the court could not make temporary travel orders? How might it impair their integration into the family unit? How might it impair their sense of self-worth?

[40] The court summarizes its findings as follows:

a) It has the authority to order temporary incidents of custody, if those terms are appropriate and are in the child’s best interests. b) It has the authority to make temporary travel orders and to dispense with the consent of any party to permit a child to travel outside of Canada, as an incident of custody. c) This authority is contained within the definition of custody as developed in the jurisprudence. It is also contained within the court’s authority to order reasonable terms and conditions as the court considers appropriate (clause 94 (2) (b) of the Act) and to impose reasonable terms and conditions relating to the child’s care and supervision (clause 94 (6) (a) of the Act). These terms should be consistent with the paramount purpose of the Act – to promote the best interests, protection and well-being of children. d) The determination of whether temporary travel orders should be made will be case-specific. The court should weigh the risks and benefits of the proposed trip to determine if it is in the child’s best interests.

[41] In this case, the court found it was in the child’s best interests to make the travel orders sought for the following reasons:

a) It would be a valuable opportunity for the child to visit his ancestral homeland with his family. The maternal aunt’s daughter and granddaughter are also traveling with them. b) It would be beneficial for the child to be immersed in his culture, language and heritage. c) It will be beneficial for the child to meet his extended family. d) It will be beneficial for the child for the maternal aunt to have the emotional benefits of visiting her family and receiving their support. This might relieve some of the pressures she has recently faced in parenting the child. She has not been able to visit Ghana for three years. e) The maternal aunt provided an affidavit setting out how the child would be cared for on the trip. Her daughter, who is a Registered Practical Nurse in Ontario, will provide her with assistance. She set out where they would be staying in Ghana and how she can be contacted. The child’s needs should be adequately met while in Ghana. f) The risks to the child set out in the protection application are at a low level. g) No one else is putting forward a plan for the child that will be compromised by the trip. The parents are not even seeing the child. If the maternal aunt had brought this motion under the CLRA, prior to this protection application, it would have been a simple decision to grant the request. h) There is no evidence that the maternal aunt is a flight risk. She has built a life in Canada. The society worker described how much she loves the child. The maternal aunt understands that the best services for the child’s special needs are in Canada. i) The society supports the trip.

[42] The court thanks society counsel and duty counsel for the maternal aunt for their helpful submissions.

Released: January 18, 2024

Justice Stanley B. Sherr