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 45(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) 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.

(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: June 1, 2017

Court File No.: Toronto CFO 14 12119 00A1

Between:

Catholic Children's Aid Society of Toronto Applicant,

— AND —

Z.Y.J. and B.C. Respondents

Before: Justice E. Murray

Heard on: May 26, 2017

Reasons for Decision released on: June 1, 2017

Counsel

Ms. Mei Chen — counsel for the applicant society

Ms. Kerry K. Gearin — counsel for the respondent Z.Y.J.

Ms. Lisa McCullough — counsel for the respondent B.C.

Ms. Julia Tremain — counsel for the Office of the Children's Lawyer, legal representative for the child Phillip

Decision

MURRAY, E. B. J.:

[1] Ms. J. is the mother of two boys, Phillip, 6, and Leo, 4, who are currently in the temporary care of the Society. This is my decision on a motion by Mother asking that the children be returned to her care under the Society supervision, or alternatively for generous access. Counsel acknowledges that her client's bail conditions must be varied before any contact ordered by this court can take place.

[2] The protection case involving these children has a long history. In October 2014, Phillip told his teacher that his mother had hit, pinched, and kicked him. Mother was charged with assault. Phillip and Leo were apprehended by the Society. The children were placed in a foster home, and they had supervised access to Mother.

[3] A temporary order was made in January 2015 by the case management judge, Justice Cohen, directing that the children be returned to Mother's care under the Society supervision. The Society appealed that order. The appeal was dismissed on April 7, 2015. The children were returned to Mother's care, under Society supervision. The Society was preparing to ask that the order be terminated in November 2016 and that it be granted leave to withdraw the protection application when Phillip made new allegations of assault against Mother.

[4] The allegations, made to a daycare teacher on November 2, 2016, were similar to those reported in October 2014. The teacher noticed a pattern of small bruises on Phillip's arm. Phillip, when questioned said that he did not know how he got the bruises. Later he said that his mother would be mad if he talked about it.

[5] Police and the Society were notified, and the child was interviewed. He said that Mother had pinched, kicked, and slapped him. A doctor at SCAN examined Phillip and noted the bruising on his arm and thigh of a type suggestive of non-accidental injury.

[6] Mother was again charged with assaulting Phillip. Both boys were apprehended by the Society. This court made a temporary without prejudice order on November 2016 placing the boys in the Society care, and providing that they would have access to Mother at the Society's discretion, consistent with the terms of her bail.

[7] Mother's bail terms provide that she is to have no contact with either child. She denies having slapped, hit, or pinched Phillip (or Leo).

[8] The boys have now had no contact with Mother since coming into care, over 6 months ago. They have not had contact with any other family member, because there are no other family in their lives. They have been interviewed by police again, and further allegations were made. Some of those allegations the Society acknowledges seem far-fetched, such as Leo's reference to Mother cutting Phillip with her "great knife", given that there is no evidence of the child suffering any cut or laceration. However, further charges, including charges involving Leo, have been laid against Mother. I am told that her criminal trial is scheduled for late October 2017.

[9] The absence of any contact between the boys and Mother is at first blush due only to the "no contact" terms of her recognizance. It is not clear to me whether Mother has ever asked the Crown to vary that recognizance to allow some contact, such as access supervised by the Society. It appears that she assumes that the request would be fruitless unless supported by the Society, and Society counsel indicates that it will not support a variation.

[10] Society counsel advised that it opposes any access (even if Mother's bail is changed to allow it) until an assessment of the boys is completed. The Society requested a trauma assessment from BOOST in November, 2016. That program's protocol requires that a child assessed have no contact with the alleged perpetrator before completion of the assessment. The Society counsel advises that the children are still on the waiting list for that assessment, and has no information about when it might begin, let alone be completed.

[11] When the problem of the denial of access to the children was raised before Justice Cohen, on May 2, 2017, the Society said that it would look for another assessor, not for a trauma assessment but for a general psychological assessment. When the motion came before me on May 26, 2017, no assessor had been retained. The Society's position was that even if a new assessor did not demand that the children have no contact with Mother pending the assessment, that the Society would insist on no contact.

[12] I questioned the Society counsel as to the reasons for this stance, pointing out that access supervised by the Society could protect the child from any physical harm and from any emotional pressure by Mother to recant statements they have made or to change those statements. The only rationale offered for resistance to any contact by the boys with their mother was the need for some type of assessment so that the Society could "better understand what is going on". However, Society counsel later advanced Mother's denial of the allegations of assault as a factor in its position that access should be denied.

[13] Phillip is represented by a lawyer from the Office of the Children's Lawyer (OCL). His lawyer says that the child very much wants to see his mother, and she supports access, provided that it is supervised. Affidavit evidence from the Society worker states that both children miss their mother and want to see her.

[14] In my view, it is important that these children begin to have some contact with their mother. That contact should at this point be supervised by the Society. Society supervision can protect the children from possible harm, and still allow them to maintain what is their only significant family tie pending resolution of this case.

[15] Under section 51(5) of the Act a court may order access on any terms it considers "appropriate" for children who are in temporary Society care. In determining what is appropriate, the court must consider the paramount purpose of the Act—the best interests, protection and well-being of children—and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children, and recognizing that the least disruptive course of action consistent with the best interests of the children should be followed. In assessing best interests, the court should consider the relevant factors set out in s. 37(3) of the Act.

[16] Courts have recognized that the "maximum contact" principle applies to consideration of appropriate interim access in child protection cases. Justice John Kukurin observed as follows:

"This 'maximum contact' principle is not restricted to cases of divorce between legally married parents. It applies equally, and has been judicially endorsed at the appellate level in Ontario, in cases under the Ontario Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended. I see no reason to exclude the application of this principle in child protection cases where a child is separated from a parent, not necessarily because of a parental break-up, but because of the intervention of the state in the form of a children's aid society that apprehends the child. From the child's point of view, the impact of being separated from his or her parent is very personal. The child does not appreciate the reasons, sometimes even the necessity, that underlie the separation through which he or she is going. What the child knows is that he or she was in contact with his or her primary caregiver 24/7 in an environment that was familiar to the child and, all of a sudden, that world changed almost completely."

[17] There are many reasons why it is in Philip and Leo's best interests, as measured by reference to the factors in s. 37(3), to have continued contact with their mother while this case is being resolved.

• As set out above, Mother is the only significant family these children have.
• The children love her and want to see her.
• The children are still quite young; to be completely separated from their primary caregiver for over six months, with no access planned, raises the obvious risk that the children may suffer emotional harm.
• Mother is Chinese/Canadian, and the children share that background. There is no evidence that the foster placement for the children supports the children in their cultural needs.

[18] The Society's position on access ignores the damage which could be caused Phillip and Leo by denying any access whatsoever.

[19] I am not persuaded that an assessment of some type is necessary before access can safely take place. If this assessment was in fact so critical for the Society to arrange access, I am puzzled by its lackadaisical attitude towards its commencement.

[20] The order I make is for access between the children and Mother supervised by the Society a minimum of two hours, twice a week. I hope that the Society will consider its obligations under the Act, and support a request by Mother to vary her bail conditions so that this access can take place. If, however, the Society does not, then Mother is free to share this decision with the Crown in support of her request. I trust that the Crown will take into consideration the fact that this court has an obligation to protect the children's safety, well-being, and best interests under the Act, and has reviewed extensive evidence in coming to this decision.

Footnotes

[1] There is no evidence as to the resolution of this charge.

[2] Their father has not been a consistent presence in their lives. In fact, he has never even seen Leo. He is now represented by counsel, who says that he wants access, but no motion for access has been made.

[3] In preparing this decision, I noted in the record that Phillip was the subject of a psychological assessment at CAMH in 2015. Society counsel did not refer to this assessment in argument on this motion, or explain why a further assessment might be required.

[4] Jewish Child and Family Services v. H.B.S., (2012) O.J. 5055

[5] Children's Aid Society of Algoma v. S.P., 2011 ONCJ 93, [2011] O.J. No. 897 (Ont. C.J.)

Released: June 1, 2017

Signed: Justice E.B. Murray