WARNING The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11, and is subject to subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication. — The court may make an order,
( c )
prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . publication of the report, . . ., 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.
(8) 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) Idem: order re adult. — 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.
85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)( c ) or subsection 45(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
Peterborough Court File No.: FC-15-260 Date: April 30, 2020
Superior Court of Justice – Ontario – Family Court
Re: Kawartha-Haliburton Children's Aid Society, Applicant And: A.R. and D.F., Respondents
Before: The Honourable Mr. Justice S. McLeod
Counsel: K. Davidson, for the Applicant C. Spear, for the Respondent, A.R. P. Galloway for the Office of the Children's Lawyer K. O'Dwyer for the Office of the Children's Lawyer
Heard: April 29, 2020 Via teleconference
Reasons for Decision on Interim Care and Custody Hearing
[1] The respondent, (hereinafter referred to as RM), has brought a motion wherein she seeks an order that the children, M.R. and E.R. (born [...], 2008), be returned to her temporary care and custody. Alternatively, she requests an order that KHCAS comply with the access provisions of a previous temporary order dated 9 October 2019. Further, RM requests that the access set out in the order of 9 October 2019 be expanded.
[2] The order of 9 October 2019 provides RM with access to each child individually from Friday overnight to Saturday, once every two months, alternating with an overnight Friday to Saturday with the other child. In addition, RM has access to both children two times per month for a period of not less than seven hours.
[3] This court made a previous order bifurcating RM's motion and set a process wherein the relief requested by RM will be reviewed individually for each child. This motion relates to the child M.R. (date of birth [...], 2008).
[4] M.R. has had independent counsel appointed for him through the Office of the Children's Lawyer. The OCL supports the relief being sought by RM in this motion.
[5] The CAS opposes RM's motion. Further, KHCAS has indicated that as a result of the COVID-19 pandemic all face-to-face access between RM and M.R. is suspended and that access may only occur by electronic means.
The Law Regarding s. 113(8) of the CYFSA
[6] Under section 113(8) of the CYFSA, there is effectively a presumption that that the child will remain in care until the party has satisfied the court that the best interests of the child require a change in the care and custody of the child. The risk of harm test for other temporary orders is not the appropriate test. The court must be satisfied that the child will be better off in the mother's care pending trial, such that the change will be required on a temporary basis. See: Children's Aid Society of Brant v. L. (J.), 2008 ONCJ 527, 2008 CarswellOnt 6306 (Ont. C.J.)
[7] Subsection 113 (8) of the CYFSA does not create a presumption in favour of whomever has care and custody of a child. It goes further than a presumption. The use of the words “shall remain” implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child requires a change in that status quo. The use of the word “require” is not accidental, it is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation. Moreover, the criterion for determining that there is a requirement for a change is the best interests of the child. Whenever this test is to be applied under the statute, the person making the determination must take a number of listed considerations into account. Moreover, evidence that is merely credible and trustworthy may not be sufficient for the court to admit or to act upon in making determinations under subsection 113(8). That is a standard of evidence that applies to temporary care and custody determinations under subsection 94(2) of the Act. Subsection 113(8) determinations are generally made in the context of a motion. The onus to satisfy the court falls on the party seeking to change the status quo. See: CAS Algoma v. S.S., 2010 ONCJ 332. Endorsed in Children’s Aid Society of Toronto v. S.G., 2011 ONCJ 746 , saying that the party seeking the placement change must show a material change and circumstances and that the child’s best interests require the change.
[8] Subsection 113 (8) of the CYFSA gives priority to one of the best interest factors namely, the importance of continuity of care for a child. See: Children's Aid Society of Toronto v. K.S., 2017 ONCJ 164. In making such a determination, the moving party must demonstrate that there has been in change in circumstances that relates to the best interests of the child that make it necessary, in the child's best interests, to change the existing order before trial. In addition to maintaining the status quo, the other factors in subsection 74(3) regarding the best interest criteria may be relevant.
[9] The court must be mindful of the fact that it is being asked to vary a final order that was deemed to be in a child's best interests pending trial and that it is being asked to do so on untested affidavit evidence. See: Catholic Children's Aid Society of Toronto v. K.G., 2020 ONCJ 208.
The Law re: COVID-19
[10] In Dnaagdawenmag Binnoojiiyag Child and Family Services v. B.R.-P., 2020 ONSC 1988, the court wrote at paragraph 18,
[18] The court acknowledges that this matter was very difficult to determine. The Mother’s progress is so impressive that under normal circumstances, the court would have no difficulty ordering overnight weekend access. However, the court cannot overlook the fact that it is in the best interests of the children in the Agency’s care that the Agency comply with all COVID-19 considerations and precautions. If a child is going back and forth from different households for access, the children and the foster parents and/or kin care providers are at risk for community spread of COVID-19. This may be less of a risk if there is a status quo in favour of the unsupervised/overnight access, (and the children in both households have already been exposed to each other - and there were no symptomatic or vulnerable persons in the household). Unfortunately, in this case, there is no status quo that includes unsupervised and/or overnight access. Additionally, there are possible vulnerable persons (with respect to COVID-19) in each household, being the Mother’s disabled child and possibly the Maternal Grandfather and his wife due to their age.
[11] In Ribeiro v. Wright, 2020 ONSC 1829, the court wrote,
“the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.”
[12] In SMCYFS v. C.B., 2020 ONSC 2109, the court wrote,
"The fact that we are living in these extraordinary times has resulted in the suspension of most institutional supervised access facilities for visiting parents requiring those services. As I noted above, it is not surprising that this is the case. Social distancing is an essential part of addressing the Covid-19 pandemic, and it is difficult to imagine the ability of an access supervisor in socially distancing herself from a party during supervised access. This is especially where there is a problem between the child and the Respondent Mother warranting face to face intervention, something that has occurred frequently in the past 14 months since the older children were apprehended.
Covid-19 is a particularly nefarious virus. It is a hardy virus, staying on some surfaces for more than two days. It is easily transmitted from person to person. It can cause death in a significant number of cases, and anecdotal evidence makes it apparent that any person of any age is at risk from this virus. To shut down supervised access during Covid-19 is not an “administrative difficulty”. It is, rather, a matter of life and death for some people, and at the moment there seems to be little rhyme or reason as to who is at risk and who is not. Supervised access in this case would also inevitably result in a clear breach of social distancing guidelines as recommended by both the provincial and federal government.
I do not find that the child’s best interests in having access to her mother warrants the court interfering in the Society’s decision to cease providing supervised access while the pandemic is underway.
I realize that this deprives G. of any meaningful contact with her mother, and also deprives the Respondent Mother of time with her daughter in this very important time of life for her daughter. I am not dismissive of the losses to both mother and daughter that this entails. I am only saying that the health and safety of everyone involved in the access (including the mother and child, as well as the access supervisor) is more important than the cost to both G. and C.B. that will result from the loss of access."
[13] In Simcoe Muskoka Child and Youth Family Services v. JH, 2020 ONSC 1941, the court wrote at paragraph 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."
[14] In Children’s Aid Society of Toronto v. O.O., 2020 ONCJ 179, the court made the following observations:
a) In child protection cases where the society wants to eliminate face-to-face contact the motion will be urgent.
b) There is no dispute that it is important for a child to maintain meaningful contact with a parent. This is particularly important for infants so that they can form an attachment to their parents who at present are not their primary caregivers. In this case, it is also important that the parents are involved in their child’s rehabilitation.
c) The benefit of ongoing in person contact must be weighed against any risk to the child and to his caregivers.
d) The society cannot base its position for the suspension of in person contact on a blanket policy.
e) In child protection cases, the court has a duty to ensure that children are protected as these are not private disputes between litigants. The court should not wait to see if problems arise but should be made aware of any specific concerns if the society, parents and caregivers are unable to resolve ongoing access issues.
f) The court endorsed case law that has recognized the society’s responsibility to comply with COVID-19 considerations for all children in their care and that this responsibility extends to limiting children’s activities in favour of social distancing and limiting community and/or face to face interactions as much as possible. This responsibility extends to all of the people providing care and/or services to the children in care as well as foster parents, kin care providers and any other children in those placements.
g) Domestic cases are fundamentally different from cases involving children in the care of a society or in kin care. The state is involved in child protection proceeding cases. These children are inherently vulnerable having been in problematic care situations otherwise they would not have been removed from their caregivers. Their caregivers have been found not to be able to meet their needs even with terms of supervision.
h) Just because there was a status quo in place or just because a kin caregiver consents to in person access by a parent is not determinative of the issue.
i) The court has an oversight duty to ensure that orders are made that do not jeopardize the safety and health of children that are before the court. This is extremely important in child protection cases where a break-down in the viability of the kin home would result in most cases in the child being placed in society care.
[15] In Children’s Aid Society of Toronto v. S.S., 2020 ONCJ 170, the court took judicial notice of the following facts presented by the society:
In view of COVID-19, the society cannot provide the level of supervision that it might otherwise have been able to provide;
many of their staff are working remotely;
the society is not conducting home visits and only checking on families by telephone or using technology;
the society is only responding in person to urgent and emergency calls;
as the schools and daycares are closed there are no third parties that can oversee the well-being of children that are under the society’s supervision;
there are no community services available to assist caregivers.
[16] In making this decision, I have considered the following evidence:
The affidavits of RM, both sworn and unsworn;
A Form 17F filed by E.R.'s OCL dated April 9, 2020.
I have reviewed the unsworn affidavit of (Melissa) dated April 15, 2020.
The affidavit of Rebecca Gower sworn April 24, 2020;
The affidavit of Janice Haig sworn April 24, 2020 (with attachments); and
A Form 17F filed by M.R.'s counsel dated April 24, 2020.
[17] This court notes that the application for status review was instituted by RM in February of 2019. The previous child protection application was resolved by way of a consent order on the 23rd of February 2018.
[18] The final order originally issued in this matter was done on a consent basis. The consent order incorporated many of the recommendations as set out in the two "s. 54 assessments".
[19] The evidence illustrates that the Society failed to complete portions of the consent order which required counselling and therapy, as recommended in the s. 54 assessments, in a timely fashion. It is clear to this court that but for the application for status review brought by RM, the Society would have continued to delay the implementation of the agreed upon services.
[20] The Society had a responsibility to find a stable and permanent home for M.R. That has not occurred. This child has been placed in no less than four foster homes. The evidence also reveals that the current foster home will no longer be available to M.R. after August of 2020.
[21] The Society advised the court that following the closure of the existing foster home, M.R. would be placed into a new foster home and in the care of an individual that is known to both M.R. and the current foster parents. However, there is no evidence before the court as it relates to that potential placement and the likelihood of yet another removal.
[22] With the number of changes in M.R.'s foster placements following the original final order, it is difficult to characterize those placements as examples of stability and permanency. Clearly, they have not been in the best interests of M.R.
[23] M.R. and RM have enjoyed unsupervised access for some time. During the timeframe when access between M.R. and RM was supervised, the supervisors notes reflect that M.R. enjoyed his time with his mother and that mother's conduct was appropriate, meaningful, well though out, and beneficial to M.R.
[24] M.R. is approaching his twelfth birthday. His lawyer has indicated that M.R.'s views and preferences, which are well thought out and consistent, indicate that M.R.'s wishes to return to the primary care of his mother.
[25] In submissions, the CAS indicated that a "long range plan" could be to place M.R. in the care of his mother all the time maintaining meaningful access to M.R.'s twin sister. The Society submitted that this could be accomplished over time provided there is a therapeutic time of transition. The Society submits that at the present time, RM is not in a position to parent M.R. In support of this submission, the Society relies upon the two assessments previously ordered and filed in the original child protection application.
[26] The CAS relies upon the two assessments previously ordered and filed in this matter. They submit that RM is not in a position currently to parent M.R., supervised or otherwise, and that more time is needed.
[27] The Society submits, correctly, that under s. 113(8) there is an onus upon the moving party to demonstrate that there has been a "material change in circumstance". I find that, in fact, there has been a material change in circumstance as evidence by two events:
The impact of government guidelines issued as a result of the COVID-19 pandemic and the resulting decision by the CAS to suspend all access between children in Society care and their biological parents; and
The fact that M.R.'s current foster placement will no longer be available to him in July or August of this year.
[28] Having found that there has been a material change in circumstance, it is necessary for the court to determine what is in the child's best interest. The factors the court must consider are set out in s. 74(3) of the CYFSA. I do not intend to repeat all of the provisions of that section, but instead focus on several key subsections:
Subsection (3)(a), the court has considered the child's views, has noted that the child will be 12 in June and has been satisfied by representations of the OCL that M.R. has consistently maintained the desire to return to his mother's care;
Subsection (3)(c)(i), I have considered the child's physical, mental and emotional needs and the appropriate care and treatment necessary to meet those needs. To date, the Society has lagged behind in fulfilling those portions of the court order that mandated Society involvement;
Subsection (c)(ii), the court has been made aware of some of M.R.'s emotional needs, as well as M.R.'s scholastic limitations. Appropriate therapy could address this;
Subsection (c)(v), it is vital that M.R.'s relationship with his mother and twin sister continue in order that he may develop in a positive fashion having the security of both his mother and sister;
Subsection (c)(vii), the anticipated closure of M.R.'s current foster home and the uncertainty as to what the Society's new plan of care will be is real. M.R.'s OCL has indicated that this will have a devastating effect upon him. Not only will he lose the foster parents with whom he has received excellent care, but he will also otherwise be placed in yet another foster home which would run contrary to his expressed views and preferences;
Subsection (c)(viii), no permanent or adoptive home has been made available for M.R., as evidenced by his multiple placements in various foster homes.
Subsection (c)(ix), this court is concerned that M.R. will suffer psychologically and emotionally if there is yet a further delay in this matter. Currently, the effect of the COVID-19 pandemic raises real issues as to when the courts would be able to re-open and conduct a hearing of the Status Review Application, further, leaving this child in a situation of continued instability and anxiety.
Subsection (c)(x), I find that M.R. will suffer significantly if the court ignores his views and preferences and leaves him in a system which cannot offer him the stability and permanency he deserves; and
Subsection (c)(xi), the Society itself submitted that with adequate intervention therapeutic reintegration of M.R. into RM's care would be possible. The court notes that the Society would have significant concerns if this proposal also included the reintegration of E.R., M.R.'s twin sister. That, of course, is not the issue on this motion as the court readily observes that E.R.'s situation is entirely different.
[29] Any consideration of the temporary placement of M.R. into RM's care must, of course, be balanced against the need for an orderly and safe transition from M.R.'s current foster home to the care of RM. There is a need to protect and ensure that M.R.'s current caregivers and those other individuals in that household are not potentially exposed to the COVID emergency. The issues of COVID protocol must be followed. It is, however, time for the Society to become actively involved in assisting RM to become better equipped for the time when M.R. is returned to her full-time care and control under a supervision order.
[30] The CAS, in their submissions, indicated that therapy and counselling for mother could be accessed virtually and suggested that mother should do so. There is no reason that the CAS cannot provide the necessary assistance to connect RM to the "virtual" therapists and counsellors during the time while COVID restrictions are in place.
[31] RM has demonstrated that she has been able to overcome incredible hurdles as they relate to her mental and emotional well being. In addition, she has taken significant steps to deal with her addiction issues.
[32] COVID-19 is not an endorsement that permits the Society to adopt the policy of eliminating all access without regard to the factors that I have previously addressed. In particular, the court has taken into account the necessity of protecting M.R.'s foster family from potential COVID exposure. Of significance is members of the family constellation that have underlying vulnerabilities.
[33] Clearly M.R.'s foster family works well with RM. The foster family is of significant importance to M.R. M.R. needs to know that he will be in his mother's primary care sooner than later, and that would not come at the cost of losing continued contact with his current foster family. I am confident that all foster family members will work collaboratively to ensure that M.R.'s physical, mental and emotional needs continue to be met, both during the transition period and hopefully at a time when M.R. is in RM's primary care.
[34] There is no current information that suggests that the Superior Court would be able to entertain a hearing of the Status Review Application prior to August 2020. Similarly, it is also clear that there is no guarantee that M.R.'s current foster family will be able to provide ongoing care for him. In fact, the opposite has been indicated.
[35] It is therefore necessary for the Society to take active steps to assist M.R., RM and the foster family in working towards a reintegration plan that sees that M.R. is back in the full-time care and control of RM no later than July 31, 2020, pursuant to a supervision order.
[36] In the event that COVID restrictions are lifted sooner than later, it is the courts expectation that the parties will work co-operatively in expediting M.R.'s transition into the care of RM.
[37] To be clear, but for the COVID restrictions, this court would otherwise be setting out terms of a transition plan. The risk, however, at the present time given this pandemic is too great to continue face-to-face access between mother and M.R.
[38] At the present time, RM and M.R.'s present contact is to be by virtual means (video, FaceTime, Zoom, et cetera). This access will be a minimum of four times per week for a minimum of one hour per visit.
[39] As the hearings between M.R. and E.R. have been bifurcated, this court will not make an order as it relates to virtual access between the siblings until I have had the benefit of submissions by all counsel.
[40] The court notes that E.R.'s OCL made submissions on this motion that related specifically to the importance of the continued contact between siblings. It is this courts recommendation that M.R. have video access with his sister three times per week for a minimum of one hour per visit. That, of course, is subject to further submissions by both E.R.'s foster parents, E.R.'s counsel, the CAS and RM.
[41] Pending those determinations, this court orders that M.R. shall have telephone contact with his sister three times per week for a minimum of one-half hour per visit.
[42] As part of this overall integration process, it is necessary that M.R. be advised immediately that his views and preferences have been considered by this court. His views and preferences have played an important role in the court making this ruling on a temporary basis.
[43] As a result, as of July 31st, 2020 he is to be reintegrated into the full-time care of his mother.
[44] M.R. needs to understand that there is light at the end of the tunnel. He will hug his mother again.
[45] I am confident that RM will, when necessary, will use "time outs" to redirect M.R.
[46] I am also confident that the CAS will employ all reasonable resources to assist in the reunification of mother and child.
[47] If the Society, RM, OCL counsel and the foster parents are unable to work out such a transition plan, then this matter is to be returned to my attention on or before June 30th, 2020 at which time each party will be entitled to limit their submissions to two pages in their entirety and this court will make the determination as to how transition will occur.
Justice S. McLeod RELEASED: April 30, 2020
