WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of 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.

45.— (8) Prohibition: 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.

45.— (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) Idem.

A person who contravenes subsection 45(8) or 76(11) (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 Information

Ontario Court of Justice

Date: September 6, 2013

Court File No.: Toronto C-604171/13

Between:

Jewish Family and Child Service of Greater Toronto, Applicant

— AND —

S.K. and J.K., Respondents

Before: Justice C.J. Jones

Motion Heard: July 17, 2013

Reasons for Decision Released: September 6, 2013

Counsel

Ms. H. Gaber-Katz — Counsel for the applicant society

Ms. J. Tremain — Counsel for the respondent(s)

Ms. S. Ahmed — Justice for Children and Youth, legal representative for the child, R.K.

Decision

C.J. Jones, J.:

INTRODUCTION

[1] This is a motion made by the applicant society (referred to as "the society") seeking an order excluding the child from being present at the court hearing in this case. In its submissions on the motion, the society clarified that it is seeking an order excluding the child from being present at all further court attendances in this matter. The society's motion is supported by the parents and opposed by the child, R.K. The child has independent legal representation in this proceeding. Her counsel, Ms. Ahmed, is a staff lawyer at Justice for Children and Youth.

[2] The child, who was born in […] 1999, is currently 14 ½ years of age. She has been in the temporary care of the society since February 20, 2013, pursuant to the terms of a without prejudice order granted on that date. The order also provided that the respondent mother and the respondent father (referred to as "the mother" and "the father" respectively, and collectively as "the parents") would have temporary access to the child in the discretion of the society and in accordance with the child's wishes and treatment needs. The child is currently placed in a treatment group home residence located in the Regional Municipality of York, where she has been residing since March 22, 2013. The child has not had any access visits with her parents or siblings since at least mid-June 2013. Reportedly, the child is articulating that she does not wish to have access visits with either of her parents, at this time.

THE LAW

[3] The right of a child who has attained the age of twelve years or older, to receive notice of the proceeding and to be present in court during a child protection proceeding arises from subsection 39(4) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended, which reads as follows:

Child twelve or older

39. (4) A child twelve years of age or more who is the subject of a proceeding under this Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.

[4] Subsection 39(4) is contrasted with the provisions of section 39(5), applicable to children under the age of twelve years:

Child under twelve

39. (5) A child less than twelve years of age who is the subject of a proceeding under this Part is not entitled to receive notice of the proceeding or to be present at the hearing unless the court is satisfied that the child,

(a) is capable of understanding the hearing; and

(b) will not suffer emotional harm by being present at the hearing,

and orders that the child receive notice of the proceeding and be permitted to be present at the hearing.

[5] The court is to consider the rights of a child who is the subject of a child protection proceeding, in the context of the stated purposes of the Act.

[6] The paramount purpose of the Act is set out in subsection 1(1) of the legislation, as follows:

Paramount purpose

1. (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

[7] The Act sets out other additional purposes to be accorded recognition in applying the provisions of the legislation, so long as these additional purposes are consistent with the paramount purpose. Pursuant to subclause 1(2)3.iv of the legislation, it is also acknowledged that children's services should be provided in a manner that:

1. (2) 3. iv. includes the participation of the child, his or her parents and relatives and the members of the child's extended family and community, where appropriate (emphasis added).

[8] For children who are twelve years of age or over, the child has a presumptive right under subsection 39(4) of the Act to attend court in the proceeding. That right may be limited or curtailed if the court is satisfied that the child would sustain emotional harm, by virtue of being present at the hearing.

[9] Subsection 39(4) of the Act recognizes developmental differences among children who are subject to child protection proceedings, according additional rights to older children who have attained the age of twelve years or more, as opposed to those who are under the age of twelve, in recognition of the fact that as children get older, their level of understanding increases.

[10] Subsection 39(4) of the legislation requires that the court must be satisfied that emotional harm would result to a child by being present in court, as opposed to a general balancing of the child's interests. (Windsor-Essex Children's Aid Society v. L.H., [2003] O.J. No. 5845, 132 A.C.W.S. (3d) 299, at para. 2 (Ont. C.J.))

[11] It is important for young people to know that fair process, respect and being heard are significant values integral to any court proceeding (Ibid, at para. 6). Indeed, they are cornerstones of the judicial system.

[12] If the court is satisfied that there would be emotional harm occasioned to the child by being present in court, the court may exclude the child from all or only a portion of the proceeding. As well, the issue can be revisited by the court at a later stage in the proceeding, based upon the circumstances of the child and the case before the court (Ibid, at para. 7).

THE EVIDENCE

[13] In support of its motion, the society has filed an affidavit sworn July 11, 2013 of its Family Services Worker. On the date the motion was heard, with the consent of the other parties, the society also filed an undated letter addressed to the court, under the joint signatures of the child's clinician from her group home placement and the supervisor of the child's group home residence. Based upon this letter and the other evidence filed by the society, the society takes the position that the child's presence in court will cause her emotional harm.

[14] The parents, although not filing any evidence on the motion, indicated to the court through submissions made on their behalf by their counsel, that they supported the society's position.

[15] In its affidavit, the society indicates that the child is stabilizing at her current treatment placement. It is reported that she continues to have nightmares at the residence, with the child reporting to her clinician that she experiences recurring nightmares on a regular basis. The group home reports that on a number of occasions, the child has awoken during her sleep, and has requested that staff members sit outside her door until she falls back to sleep. According to the nightly logs of the residence, during her time at the placement, the child has been experiencing nightmares on an average of two to three nights per week. However, around the time of her two visits with her family, which occurred prior to mid-June 2013, the child reported nightmares on a daily basis for approximately four days following the visits. As well, in the period surrounding the court dates of June 17, 18 and 19, 2013, the child expressed to group home staff that she was experiencing nightmares for the two days preceding court, over the three nights of the court attendances and the three days following court.

[16] The attendances in court on June 17, 18 and 19, 2013 were in relation to a motion, brought by the society and now since withdrawn, seeking leave of the court to withdraw the society's protection application, as the parents had privately arranged for a treatment placement for the child in the state of Utah, U.S.A., and had arranged for the child to be transported to the placement through a private company that provides secure transport services. The child was strongly opposed to attending at this treatment placement and was not prepared to travel voluntarily to the placement.

[17] The society indicates that, while at the group home residence where she has been placed for several months, the child had required a one-on-one support worker all day. At the date of the society's affidavit, this level support was slowly being reduced, with the anticipation that the one-on-one support would ultimately be removed entirely, although a specific date for the removal of the 1:1 worker had not been set.

[18] The society worker indicates that, following the court attendance on June 18, 2013, in the immediate vicinity of the court house, there was some form of interaction between the child and her parents that caused her upset. Reportedly, the interaction involved the father either embracing the child or attempting to hug her. The child expressed to her society worker that she wanted to make a report to the police pertaining to this interaction, and a police report was made by her on July 10, 2013. It is a fair inference that, from the child's perspective, this contact with her father was not welcomed by her.

[19] Attached to the society's affidavit as an Exhibit is a letter, forwarded by email to the child's counsel dated June 18, 2013 and addressed to the court, written by Dr. C. Boucher, the child's current psychiatrist. The psychiatrist states that, as at the date of the letter, she had met with the child four or five times, and had been able to identify symptoms related to attention deficit disorder, attachment issues, as well as some post-traumatic symptoms pertaining to the child.

[20] According to the psychiatrist, the child's treatment has included medication "for recurrent nightmares related to past negative experiences, anxiety and impulsivity". The psychiatrist relates that the child has reported abuse in the [parents'] home, and "although this has not been verified, the child remains convinced of the occurrence of these events". The psychiatrist also states that, due to the child's strong beliefs and her perceived experience of trauma, forcing her into a treatment facility or family therapy at this point in time would only lead to her feeling dismissed and re-traumatized. Dr. Boucher maintains that she is convinced that it would be deleterious to the child's mental health to force her into therapy, and that any such attempt would confirm the child's perception of being ill-treated by the adults responsible for making decisions for her.

[21] The society has also attached to its affidavit an Incident Report dated June 3, 2013, written by a worker at the child's current group home residence. The Incident Report indicates that the child informed the worker that, before bedtime during the previous evening, she had cut her arm with a staple and then swallowed the staple. The child identified feeling upset due to the fact that a friend had stopped talking to her. As well, the child stated that her moods change all the time and it confuses her.

[22] In identifying other events, dynamics or interactions that precipitated the incident, the worker writes that, over the previous few weeks, the child had been experiencing some difficulties regarding the possibility of moving to the United States. "She was informed that this may be occurring in the near future and this is something that [the child] does not want to do. She has expressed her fears of this move and has informed staff at the residence that she will do 'anything' to stay in Ontario. These feelings have caused heightened anxiety for [the child]". The worker expresses the view that the child's attempts at self-harm may be the result of these feelings.

[23] The reference, in the Incident Report, to the child's fears of moving to the United States, is a reference to the parents' plan to have the child transported to the United States and to place the child at the residential treatment facility in Utah.

[24] The third Exhibit attached to the society's affidavit is an email dated July 5, 2013 from the supervisor of the child's group home residence to the child's worker at the society. In the email, the supervisor reviewed the child's medication changes since her admission to the group home. A medication change made on May 16, 2013 had been due to the child's report to her psychiatrist, Dr. Boucher, that she was still experiencing nightmares. On May 30, 2013 the child's medication was increased. On June 20, 2013 the medication was again increased, as the child had expressed that her recurring nightmares were continuing.

[25] The email also states that the child has expressed to her clinician at the group home that she has recurring nightmares on a regular basis, and that the content of the nightmares are of her being abused. In each of her sessions with the clinician, the child has reported that the nightmares are continuing. At the date of the email, the child had had approximately six sessions with the clinician.

[26] The email states that the child has been reporting nightmares to the residential staff since the time the child was first admitted to the group home residence, and confirms the information set out in the Incident Report, to the effect that, in general, these nightmares were occurring at a frequency averaging two to three nights per week. As noted above, the child's admission date was on March 22, 2013, approximately three and a half months prior to the date of the email. In relation to the increase in the child's nightmares around the time of her two visits with her family and the court dates of July 17 to 19, 2013, the email repeats the information recorded in the Incident Report, referred to above.

[27] The letter jointly authored by the supervisor of the child's group home residence and the clinician connected with the residence provides further information specific to the relief sought by the society in the motion. In the letter, the writers acknowledged the child's right to attend court, however they expressed concern regarding the child's presence in court on the dates of June 17 and 18, 2013. The writers were of the view that the child's attendance in court impacted her negatively in several ways. The writers indicated that the child was exposed to uncomfortable situations while in the waiting area of the courthouse, as well as in the body of the court.

[28] Within the body of the court, the writers were of the view that the child struggled to understand the legal terms and processes, and found it overwhelming when she did not understand what was occurring or being said. The writers spoke about the child's cognitive and emotional profile and indicated that the child struggles with regulating her emotions and with executive functioning skills.

[29] In addition, the writers stated that the child expressed that, at the last court appearance, she had felt scared and confused, arising from her having witnessed "the behaviours of other persons present within the body of the court, and the manner in which they spoke to and interacted with one another once outside the body of the court". The writers indicated that the child required an extensive amount of emotional support to make it through the process as a result.

[30] The court proceedings on June 17 to 19, 2013 were vigorously contested and the court was told that the child was present during times when the discussions among the parties and counsel outside of the courtroom had become very animated. The letter from the group home referred to these "heightened emotions" among the participants. The writers concluded that they did not feel it was in the child's best interests to attend court, as it heightens her anxiety and increases her inability to tolerate the ensuing distress and regulate her emotions.

[31] There was no suggestion made in the evidence that the child's behaviour or deportment, either in court, or while at the courthouse on June 17 to 19, 2013 had been inappropriate. Rather, the letter from the child's placement expressed concerns arising from the fact that child was audience to the behaviours of other persons present at court and the manner in which they spoke to and interacted with one another once outside of the court. The court infers that this reference is to the adults connected to the case.

[32] In response to the evidence filed by the society, the child's counsel has filed an affidavit of Mr. Jesse Mark, a law student on a placement at Justice for Children and Youth, summarizing the child's expressed views and wishes. The child has clearly expressed that she wishes to be present for any and all court appearances related to the ongoing child protection proceedings. It is the child's view that she will feel better, in terms of her mental health, if she is able to be present for all court appearances, as opposed to being excluded from attendance at court. The child has articulated that she does not wish to have any conversation or interaction with her parents while at court.

[33] It is the position of the child's counsel that she has a right to attend court. Counsel acknowledges that the child was present at the courthouse during times when the discussions among the parties and counsel outside of court had become somewhat intense. The child's counsel asserts that plans can be put into place to avoid any direct contact between the child and her parents while at court, and to prevent the child from being exposed to any increased tension between the parties and counsel at the courthouse, either before or after the court proceeding.

[34] The child's counsel notes that many lay persons would not understand legal terms and processes encountered during a child protection court proceeding, and that prior to and following the court attendance, the child will be able meet with her counsel to obtain an explanation for any aspect of the proceedings that she does not understand.

[35] The child did not attend court on July 17, 2013, when this motion was argued. However, her counsel made it clear that the child wishes to attend court for all future court attendances.

ANALYSIS

[36] In order for the court to exclude the child from attending court during the proceedings, the court must be satisfied that the child's presence at the hearing would cause the child emotional harm.

[37] Other than the letter from Dr. Boucher, which did not address the issue of the child's attendance at court, no medical evidence from a physician or psychiatrist was filed with the court on this motion to address the issue of whether the child would experience emotional harm, arising from her attendance in court. Further, there was no evidence filed from a clinical psychologist, touching upon this issue. While the child's clinician co-authored the letter filed with the court by the society, the qualifications of the clinician as a counsellor and therapist are not apparent from the letter.

[38] The other evidence filed by the society included the reports by group home staff describing the pattern of the child's nightmares and self-harming gestures while at the placement. It is clear from this material that the child has continued to experience nightmares over the several months that she has been at the residence. However, more recently, the child was reported to be stabilizing at her placement, and the level of one-on-one support is being reduced.

[39] In relation to the increasing nightmares and the child's self-harm gesture in early June 2013, group home staff expressed the view that the child's distress may have been precipitated by her anxiety over the prospect of being unwillingly transported to a treatment facility in the United States. It would appear that the child's sense of uncertainty over this possible treatment plan was the catalyst for the child's anxiety, as the society's motion to withdraw was not pending at that time.

[40] Subsequent to June 2, 2013, the date of the child's self-harm gesture referred to above, the parents filed documents with the court, setting out their treatment plan for the child, which they intended to implement if the society's motion to withdraw the protection application had proceeded in June 2013 and had been granted. This treatment plan was central to the court attendances on June 17, 18 and 19, 2013.

[41] In this proceeding, the child is represented by her own independent legal counsel. The court infers that the child is therefore generally aware of the nature of the child protection proceedings, the issues that are before the court, and the positions of the other parties. The outcome of the proceedings will affect, if not determine, the plan for the child, the nature of her placement and the extent of her contact with her parents, siblings and other family members over the next several months. These are issues directly affecting the child.

[42] The evidence before the court does not address whether, if the child is excluded from attending court, she may experience greater anxiety arising from a sense of apprehension over what may be occurring in court in her absence, and the emotional impact this would have upon her.

[43] As well, it is impossible to determine the degree to which the child's increased nightmares surrounding the dates of the June 2013 court attendances may have been connected to her fears and anxieties over the proposed residential treatment plan in Utah that had been arranged for her by her parents. The child was aware that this plan would have been implemented immediately, if the child protection application had ultimately been withdrawn. Reportedly, this was the trigger for the child's increased nightmares in the weeks prior to her self-harm attempt in early June, at a time when no motion was before the court.

[44] In relation to the court appearances of June 17 to 19, 2013, the group home personnel have expressed their view that the child's past attendance in court impacted her negatively and that it is not in her best interests to attend court. In their letter, the writers related that the child was exposed to uncomfortable situations both in the courtroom and outside of the courtroom, in the environs of the courthouse. Firstly, the child reportedly did not understand all of the proceedings or terminology used in the courtroom, and found this to be overwhelming. Secondly, as a result of witnessing the behaviours and interactions of the other adults connected to this case and the increasing tensions among them, particularly outside the body of the court, the child was negatively affected.

[45] In this motion, the court is being asked to curtail entirely the child's statutory right to attend court, due largely to the impact upon her of her exposure to the tension and conflict between the adults connected to the case and to interactions that occurred outside of the courtroom.

[46] In relation to the test to be applied by the court, the court is not satisfied that the evidence establishes that the child's attendance at court would cause the child emotional harm. Rather, the evidence would suggest that her continued exposure to the heightened tensions among the adults involved with the case may be unsettling for her.

[47] Regarding the two issues highlighted by the letter from the group home personnel, the court is of the view that the first issue can be addressed by allowing an opportunity for the child to meet with her lawyer privately, following the court attendance, to have her counsel answer any questions she may have regarding the court proceedings and terminology.

[48] In relation to the second factor, the court is of the view that a protocol can be established for the child's attendance in court, to ensure that the child is not exposed to any further friction or heightened emotions between the parties, counsel or the other adults connected to the case, either prior to, during or following the court attendance.

[49] As a third factor, the evidence reveals that following the court appearance on June 18, 2013, there was apparently some interaction between the child and her father, which appears to have resulted in discontentment to the child, to the extent that she proceeded with a police report concerning the incident.

[50] The child has expressed her current view that she does not wish to have any interaction with her parents at this time. For their part, the parents have expressed that they love their daughter dearly, and that she is an integral part of their family. They are concerned that, if their daughter is present at court and they do not acknowledge her in any manner, she may erroneously perceive their behaviour as either a rejection of her or as a level of coldness towards her that they do not hold. The protocol should also recognize these sensitivities.

[51] Therefore, for any future court attendances, the court directs that the following protocol is to be followed by the parties, counsel and other persons connected with the case:

PROTOCOL

1. At the courthouse on the day of any court appearance connected to this case, a private waiting room will be made available for the child, her counsel and any staff member(s) from her placement accompanying the child to court. Upon arrival at court, the child and her counsel are to identify themselves at the Information Desk in the Filing Office on the first floor of the courthouse. Staff will direct them to the designated waiting room.

2. Future court attendances, for appearances expected to take less than half an hour, will be set for 9:30 a.m., such that the child's waiting time at court will be reduced. For appearances expected to take more than half an hour, the case will be set for 2:00 p.m.

3. When the case is called, the other parties and their counsel will enter the courtroom first. The child, her support persons, if any, and her counsel will enter the courtroom once the other parties are in place. On completion of the case in court, the child and her counsel will exit the courtroom first, in advance of the other parties and counsel. It is hoped that the child will appreciate that any lack of communication or interaction by her parents towards her is therefore due to courtroom etiquette and their appropriate behaviour in court.

4. Any exchange of pleasantries to the child may be briefly communicated on the parents' behalf by their counsel, as part of the introductions made by counsel to the court at the outset of the case.

5. The child is not to be exposed to any discussions among the parties and counsel concerning the case.

[52] In the event that the child experiences emotional difficulties in the future, which any party views are connected to her attendance at court in this proceeding, the issue of the child's attendance at court, the protocol relating to the court attendances or any other ancillary matter may be re-visited by the court.

ORDER

[53] As a result, the court makes the following Order:

1. The motion made by the society, seeking an order pursuant to section 39(4) of the Child and Family Services Act, excluding the child from being present at the court hearing, is dismissed.

Released: September 6, 2013

Signed: "Justice C.J. Jones"