Warning Regarding Publication of Identifying Information

This is a case under the Child, Youth and Family Services Act, 2017, and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (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.

87 (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

NEWMARKET COURT FILE NO.: FC-22-1755-00 DATE: 20230127

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Children and Family Services for York Region Applicant – AND – JF (Mother) Respondent – AND – JE (Father) Respondent

Counsel: J. Kiang, Counsel for the Applicant W. Skinner, Counsel for the Respondent Mother A. Keyvani, Duty Counsel

HEARD: January 26, 2023

Ruling on custody during adjournment

a. Himel J.

The Without Prejudice to With Prejudice Order

[1] This is the return of the Temporary Care and Custody Hearing (“TCCH”) following the issuance of a without prejudice order placing two children in the care of the Children and Family Services for York Region (“the Society”), on October 20, 2022 (2022 ONSC 5979). For the reasons contained in my ruling, I declined the Society’s request that the children be placed with the father for a six-month period subject to terms of supervision. I determined that there was no less disruptive order than placing the children in the Society’s care.

[2] By way of background, on October 17, 2022, the Society commenced a Protection Application (“PA”) and brought an urgent motion before the Court. The Society seeks a finding that JRRE (“the son”, age 4) and ELVE (“the daughter”, age 2) are children in need of protection pursuant to Section 74(2) (b)(i),(ii) and (h), of the Child, Youth and Family Services Act, 2017 (“the Act”).

[3] The TCCH was initially adjourned to October 20, 2022 and then to November 21, 2022, to enable the parents to retain counsel and provide responding materials. At their request the matter was adjourned to today, peremptory on the parents. It is not appropriate for a without prejudice order to remain in place for an extended time. The Act requires that matters move forward expeditiously, particularly for children ages six years and under who are in the Society’s care.

[4] As of December 8, 2022, the mother retained counsel, and she served an Answer and Plan of Care on January 13, 2023. She seeks the children’s return and intends to co-parent with the father. He has yet to retain counsel (and states that he is having difficulties finding a lawyer). The Father did not serve or file an Answer and Plan of Care. He agrees with the mother’s plan to co-parent the children. The parents re-commenced their cohabitation a few weeks ago.

[5] Neither party filed responding materials to the TCCH. The mother does not oppose the requested order and the father consents to same. Consequently, a new order will be issued to that effect.

[6] The next step is child protection mediation. The plan is to develop a set of expectations and tasks that the parents will undertake to address the child protection concerns, with the goal of having the children returned to their care. From my perspective this includes addressing the history of family violence, as well as the parties’ mental health and problems with alcohol and substance abuse.

[7] During today’s attendance the parents acknowledged various missed visits and expressed some challenges that have interfered with their attendance. Suggestions were made respecting same.

[8] The parties will return to Court for a case conference in March 2023. During the adjournment period the Society will address the statutory findings and circulate a Statement of Agreed Facts.

Lack of Judicial Oversight and Legal Representation

[9] As described in my October 20, 2022 ruling, the Society became involved with the family following a referral by York Regional Police (“YRP”) on July 30, 2022. The YRP described an incident whereby: (a) the neighbours witnessed the Mother slapping and hitting the Father; (b) the children were present and yelled at the Mother to stop hitting the Father; (c) the Mother was arrested; (d) the Mother was observed to be intoxicated at the time of her arrest; (e) neighbours reported that the Mother was verbally aggressive with the children, started “drinking” three months earlier and hit the Father on a daily basis; and, (f) one of the Mother’s older children was present and observed the incident.

[10] From August 7, 2022 to October 13, 2022, seventeen (17) concerning issues and incidents took place that required Society attention. This includes the two young children being found by the YRP walking barefoot and alone on the street. The Mother and Father repeatedly violated the various safety plans agreed to by the parties.

[11] However, the Society did not commence a PA, nor did they engage in negotiations to devise a Voluntary Agreement (“VA”). Instead, the Society continued to work informally with the parties. Consequently, the parents did not qualify for legal representation through Legal Aid Ontario until October 17, 2022, when the Society commenced a PA and brought an urgent motion seeking a supervision order.

[12] This case is a further example of the concerns and impacts (on parents) that arise when the Society delays the commencement of a PA. As I stated in CFS for York Region v. M.P., A.P and N.A., 2022 ONSC 1528, parents do not have access to representation by Legal Aid Ontario counsel until a PA is commenced, or a VA is being negotiated (and only if the parents are informed that there are pre-litigation certificates available).

[13] I recognize that hindsight is 20/20 and that speculation is of limited utility. However, some of the incidents and issues that arose after July 30, 2022, may have been avoided if the matter had been brought before the Court. At that time a supervision order may have been an appropriate and useful tool to engage the parents (perhaps with the benefit of legal representation) and protect the children from harm.

[14] The paramount purpose of the Act is to promote the best interests, protection and well-being of children (s.1(1)). The Society is required to carry out its role in the best interests of the children in accordance with various defined considerations (section 74(3)). The Act also requires that the Society use the least disruptive measures to protect the children (s. 1(2)).

[15] I decline to accept that a PA is more disruptive to children than continuing to live in a home rife with conflict and trauma. A supervision order that stabilizes a family and avoids the need for children to come into the Society’s care is far superior to a crisis that results in a temporary care order.

[16] The Supreme Court of Canada recently confirmed that judicial oversight of actions taken by a child protection agency are, “not only permissible, they may in some circumstances be required on account of the court’s essential oversight role in child welfare matters and its parens patriae jurisdiction.” (B.J.T. v. J.D., 2022 SCC 24 at para. 63)

[17] When the Society delays bringing (or does not bring) high risk matters such as this one to the court, there is delayed (or no) judicial oversight; an important check and balance on the child protection system can be lost.

[18] Legal counsel cannot advocate and support parents without being retained. As stated above, retainers through Legal Aid Ontario are only available when the Society commences a PA or proposes terms for a VA. Family courts, whose role is to ensure compliance with the paramount (and other) purposes of the Act, can only fulfill this role when cases that warrant judicial oversight are brought before the Court.

[19] The number of Protection Applications has fallen dramatically in the past several years for a variety of reasons. I worry that there are families and children falling through the cracks of the child protection system. Perhaps it is time to revisit when (and why) the Society opts to work informally with families rather than through the commencement of a PA or the negotiation of terms of a VA.

Justice A. Himel Date: January 27, 2023