Court File and Parties

COURT FILE NO.: FC-20-12-01 DATE: 20200327 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Simcoe Muskoka Child and Youth Family Services, Applicant AND: JH, Respondent

BEFORE: The Honourable Madam Justice R.S. Jain

COUNSEL: Lori Gibson, Counsel for the Applicant Duty Counsel, appearing for the Respondent Julia Bailey, OCL

HEARD: March 27, 2020

Endorsement

Re. Urgent Motion by the Society to change the child’s placement (BS, born […], 2007 - who has just turned 13 years old) following apprehension from Mother’s care on March 20, 2020.

[1] The Mother and child both consented to an order placing the child in the temporary care and custody of the Society. The Mother confirmed that she was residing in a basement apartment with two other individuals. She advised that she was currently unemployed and not in a position to provide accommodations for the child to reside with her. The child advised through her OCL Ms. Bailey that she is happy to have been placed in a foster home with her sister and that she is content to stay in foster care and remain in the care of the Society. Therefore, on consent, there shall be order for the child to remain in the temporary care and custody of the Society. The contested issue for the court to determine is regarding Mother’s request for face to face access with the child.

[2] According to an order dated January 13, 2020, the child was in the care of the Mother under Society supervision. The Society brought an urgent motion to change that order as the Mother was not complying with the supervision terms and she had not maintained regular contact with the Society or exercised any access with her four other children who are in the care of the Society. In addition, the Society had received referrals from the child’s school as they were very concerned about the child’s physical and emotional well-being.

[3] Without notifying the Society or the child’s school, the Mother admits that she left the child in the care of a male friend (a man with whom the Mother had a short dating relationship). Serious concerns were brought forward by the child’s school teacher and principal that the child had been “deteriorating.” The school advised the Society that although the child was attending school, she was not participating or doing any work. It was reported that the child appeared “disheveled” and had “lots of hickies.” The school was very concerned about the child’s emotional and physical welfare and the fact that the Mother was not responsive to their calls. The child had expressed that it was “very stressful and upsetting not knowing when she was going to be moving in with her mother.” The child had recently been suspended from school for punching another child at school.

[4] A temporary order (without prejudice) was made on March 23, 2020 placing the child in the care of the Society with access to the Mother at the discretion of the Society. Also included in the March 23, 2020 order regarding access was the following term: “Due to the ongoing COVID-19 pandemic, face to face visits will commence upon same being deemed safe by the Society.” The Society is offering “virtual” access 2-3 times per week and in accordance with the child’s wishes. “Virtual” access would include access through social media, facetime messenger, Zoom video conferencing and telephone/texts.

[5] I have carefully reviewed the materials filed in this case. The Mother had the benefit of Duty Counsel. Even in the absence of responding materials from the Mother, I have had the benefit of considering the verbal evidence of the Mother in relation to COVID-19 considerations. I permitted her to give evidence and answer some questions posed by myself during the telephone conference (after affirming that she was telling the truth to the best of her ability). The Mother opposes being denied any face to face access indefinitely. Through her duty counsel Ms. Secord, she argued that pursuant to the recent CLRA case, Ribeiro vs. Wright [1] ( Ribeiro ) the Society cannot put the child’s relationship with her mother “on hold” by a “blanket policy” that the children in care should not have face to face visits with their parents due to COVID-19. She argues that such a policy is not in the best interests of the child and that “virtual access” is not “meaningful personal contact.” She asks for regular face to face access in her home.

[6] In Ribeiro, Pazaratz J. gave very helpful guidance on parenting issues and urgency during this extraordinary time: “In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to.” Although Ribeiro is a not a child protection matter, the guidelines are applicable to this case.

[7] In Ribeiro, there was an existing parenting order. Apart from the COVID-19 considerations, there were no other concerns about the parenting skills of the parties. In this case, the mother has not been complying with the previous supervision order nor has she complied with the access order to her other children. In this case, there are serious concerns about the Mother’s parenting.

[8] The Mother gave little to no evidence about the type of access she had been exercising with the subject child after she placed her with her friend. She advised the court that she has been in constant contact with her children via texts, but that she tells them to “keep it on the down low.” She has admitted that she does not follow the existing court orders and that she encourages her children not to do so either. She advised the court that the last time she had face to face contact with the child was “2-3 weeks ago” and she could not give the court any specifics of how often she had visited with the child since she left her in the care of her “friend.”

[9] When asked about what COVID-19 precautions the Mother would take if allowed face to face access, the Mother made a general statement that she is complying with Covid-19 considerations. She said that she and her room-mates are social distancing. When I asked how she would remain socially distant from her child if the child was permitted to have face to face access, she did not have an answer. She assumed that she and the child would not have to maintain social distance and that they would just stay inside and only have to maintain social distance from others outside her household. She was not able to give the court 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.” The Mother did not give the court a “specific and realistic” proposal which fully addressed COVID-19 considerations in a child focused manner.

[10] I am not satisfied that the Mother will respect or follow any COVID-19 considerations if the court made an order that allowed for unsupervised and/or face to face contact with the child. As Pazaratz J. said in Ribeiro, there will be “zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.” I find that the Mother’s actions and inactions in this case have and will continue to pose a COVID-19 risk to the child and to the members of the child’s foster family (including the child’s sister who resides there as well).

[11] The court agrees that it is in the best interests of the child to have “meaningful personal contact” with her Mother. The court recognizes that a child protection matter is usually very challenging for the parents and for the Society. It is always critical that they work together in a flexible, respectful and cooperative manner. It is especially important during this time of crisis, that all parties stay focused on the best interests of the child. In this case, given the Society’s concerns; and the fact that the Mother has not followed the current orders; and the fact there is no status quo for face to face contact; the court finds that virtual contact is in the best interests of the child and it is enough to maintain meaningful personal contact between the child and the Mother.

[12] We are in “extraordinary times.” The Society rightfully pointed out that it has a responsibility to comply with the Covid-19 considerations for all the children in their care. This means they must limit the children’s activities in favour of social distancing and limiting community and/or face to face interactions as much as possible. It also cannot be overlooked that this responsibility extends to all the people providing care and/or services to the children in care. The Society has a responsibility to comply with Covid-19 considerations for all the children in their care, as well as the Foster Parents and Kin Care Providers (and any other children residing in those placements). This is a non-exhaustive list, there may be other’s that should be included but are not the subject of this motion.

[13] For all the above reasons, the Society’s motion is granted. I make the following temporary order:

i. The Society shall have temporary care and custody of the child BS born […], 2007.

ii. The Mother shall have access with the child BS at the discretion of the Society and in accordance with the child’s wishes including:

a. Virtual contact up to three times per week via social media and/or telephone (including WhatsApp, Zoom, Facetime messenger or other services that allow for video/audio conferencing);

b. Texting daily for up to 30 minutes.

iii. Due to the ongoing COVID-19 pandemic, face to face visits will commence upon same being deemed safe by the Society.

iv. The Society shall monitor and review the access on an ongoing basis and expand access if deemed safe in consideration of the Covid-19 pandemic.

v. Upon the Mother serving and filing responding materials, she may schedule a Temporary Care and Custody Hearing through the Trial Coordinators office in the Barrie court.

[14] This matter to return to court on June 1, 2020 to set a date for a conference or TCCH on a date to be set through the trial coordinator in Barrie. The Society to contact the trial coordinator in Barrie (email barrie.scj.tc@ontario.ca) to obtain a date to return this matter to court for after the suspension of regular court operations has ended.

[15] During the adjournment, the Mother is strongly encouraged to obtain legal advice. If she is unable to contact or retain a lawyer, she should call the emergency family law referral line at the Law Society of Ontario, Toll-free: 1-800-268-7568 and/or Legal Aid Ontario and/or the Law Society Referral Service or the private unbundled family law roster (www.familylawlss.ca).

JAIN J. Date: March 27, 2020

[1] Ribeiro v. Wright, March 24, 2020, Superior Court of Justice, Family Court (Hamilton), File #1199/19