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, as amended, and is subject to 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.

45.— (8) Prohibition on publication of identifying information

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) 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) Offence

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.

ONTARIO COURT OF JUSTICE

IN THE MATTER OF

An amended protection application under Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11, respecting G.S., born on […] 2008

BETWEEN:

CHILDREN'S AID SOCIETY OF TORONTO

Applicant

— and —

N.N.

Respondent

Before: Justice Manjusha B. Pawagi

Heard on: 10 July 2017

Reasons for Judgment released on: 1 December 2017

Counsel:

• Lily Ng — counsel for the applicant society
• Lauren Speers — counsel for the respondent mother N.N.
• Nav Rai — counsel on behalf of the child G.S.

1: OVERVIEW

[1] This case is about whether an order of "access at the discretion of the society" gives the children's aid society the authority to place a child on an "extended access visit" without further judicial authorization.

[2] The child in this case was originally on an interim supervision order with family friend A.L., with access to her mother at the discretion of the society at a minimum of two times a week. On June 2, 2017, the society moved the child to the care of another family friend, W.C., at the mother's request, under the guise of an "extended access visit." The society did not advise child's counsel or this court in advance of the move. When I learned of the move, I directed the society to bring a motion to vary the interim supervision order forthwith. On the hearing of the motion, on July 10, 2017, I granted the order sought placing the child with W.C. subject to the supervision of the society, with reasons to follow. Subsequent events have rendered the issue raised on the motion moot as the child returned to the care of A.L. However, I am releasing these reasons in the interests of providing guidance on the proper interpretation of discretionary access orders made under the Child and Family Services Act, R.S.O. 1990, c.C-11 (CFSA).

2: FACTS

[3] The society's involvement with this family began on December 11, 2016 when the respondent mother, who suffered from a chronic seizure disorder, was admitted to hospital after experiencing a psychotic episode. The society was able to expeditiously assess a family friend, A.L., as a placement for the child, age 8, thus avoiding bringing the child to a foster home. On the first court appearance of December 16, 2016, I made a without prejudice order placing the child in the care and custody of A.L., subject to the supervision of the society, with access to the child by the respondent mother at the discretion of the society at a minimum of two times per week. The matter was then adjourned several times for parties to work towards returning the child to her mother's care. The father does not live in Canada and his exact whereabouts were unknown at that time.

[4] Then, on June 13, 2017, to the great surprise of this court, society counsel advised that the society had moved the child to the care of a different family friend, W.C., on an "extended access visit" twelve days earlier, which included changing the child's school. The respondent mother had requested the move as she was unhappy with the care A.L. was providing.

[5] Child's counsel advised the court he only learned of the move the day before it occurred, and only from A.L., not from the society. He was not able to meet with the child until shortly after the move. He advised the court that while the child was now content in the new placement she would have preferred not to have moved from A.L.'s care.

[6] I expressed concern that the society had acted without legal authority in unilaterally changing the child's placement, and directed the society to bring a motion to vary the interim supervision order forthwith. That motion was heard on July 10, 2017, and was granted on the basis that the change in placement was supported by the respondent mother, and unopposed by child's counsel. The order was made on a without prejudice basis to give A.L. the opportunity to participate. A.L. chose not to do so. However, I indicated that subsequent reasons would be provided due to my concerns about the way the access provision and the concept of an "extended access visit" was being interpreted by the society.

[7] Events then took a tragic turn. During the night of August 28, 2017, just two weeks after I made a final order on consent for a protection finding and an order placing the child in her mother's care pursuant to the supervision of the society for six months, the mother suffered a seizure and died. The society then placed the child back with A.L. by way of an order made by another judge of this court on September 1, 2017. That order placed the child in the temporary care and custody of the society. Because the society had designated A.L. to be a "place of safety" pursuant to the CFSA, the society was able to place the child with A.L. rather than in a foster home. The expectation was that this would become a permanent placement for the child; however, due to A.L.'s partner then suffering a serious illness, the society had to move the child to a foster home on November 3, 2017. The Society is currently in the process of assessing kin plans.

3: ANALYSIS AND THE LAW

[8] An "extended access visit" is a term of art, not law. The society uses it to refer to an access visit where the duration is not fixed at the start of the visit, and sees it as an available option to the society when access is at the society's discretion.

[9] Pitfalls with the concept of extended access visits are set out in a decision by L. Glenn J. of the Ontario Court of Justice in Children's Aid Society of Huron County v. R.G., [2003] O.J. No. 310. The central points from this decision with respect to this issue are paraphrased below:

a. In an extended access visit with a parent, the society in effect expands its power of discretion over access to the point where the child is actually living full-time with that parent, even though, according to the order, the child is supposed to be in the care of the society.

b. Not only is this a contravention of the order, but it can leave the society badly exposed if the child were harmed during the visit because the child is still technically in the care of the society.

c. If the visit breaks down and the child is removed from the parent, it results in what is in effect a re-apprehension, but without the requirement that there be a court hearing within five days under s. 46 (1) of the CFSA because there is already an order that has placed the child in the care of the society. No child should be subject to this kind of upheaval in the hands of the State without the prompt and automatic review of a court.

[10] The society bases its power to authorize an extended visit in orders that leave access to the society's discretion. However, the question of whether such orders are themselves proper is not settled.

[11] The Court of Appeal in Strobridge v. Strobridge, [1994] O.J. No. 1247, and M.(C.A.) v. M.(C.), [2003] O.J. No. 3707, held that the court cannot delegate decision making over access. But since those were both custody/access cases and involved delegation to a third party such as an assessor or psychiatrist, courts have distinguished them from child protection cases where the issue is delegation to the society who is one of the parties.

[12] There are two competing lines of cases in the child protection context regarding whether the court has the jurisdiction to delegate decision making authority over access to the society.

[13] In C.H. v. Durham Children's Aid Society, [2003] O.J. No. 879, leave to appeal refused, [2003] O.J. No. 2825 (C.A.), the Divisional Court held that the court has jurisdiction to order access at the discretion of the society. This jurisdiction was held to be based on the combination of ss. 58(1) and 15(3) of the CFSA. Section 58(1) gives the court authority to determine access in the best interests of the children and to "impose such terms and conditions on the order as the court considers appropriate." Section 15(3) sets out the responsibilities of a society including to "supervise children assigned to its supervision under this Act." The Divisional Court found that it would not be in the child's best interests for the parties to have to return to court for every-day access issues; that maximum flexibility is required to respond to the family's ongoing needs on a day-to-day basis; and the society has the mandate and expertise to deal with these day-to-day issues.

[14] On the other hand, there is a line of Ontario Court of Justice and Superior Court of Justice cases that hold that the court cannot delegate decision making concerning access to the society. This view is expressed in a frequently-quoted passage from Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 930 (S.C.J.) where S.R. Goodman J. commented at para. 40:

…While I can certainly understand some of the reasons why it would be efficient, time- or cost-wise, to delegate access issues to the society, children and their parents have a right, in my view, to have decisions in respect of access made in an objective and neutral manner. One would expect that it would be rare, if ever, that legislation would authorize a court to delegate its judicial functions to any third party who or which is a party to the litigation, when neutrality and objectivity are so vital to the decision-making process. In my view, simply put and at least on a final basis, the Act does not permit, either expressly or by implication, the court to delegate its authority to make orders in respect of access under s. 58 to any person or entity, including the children's aid society.

[15] Justice Goodman distinguished the Divisional Court's decision in C.H. v. Durham Children's Aid Society, noting that the decision in that case related to a temporary access order made in the course of a child protection case that granted access to the parent (at para. 33). In contrast, in the case before her, the trial judge had made a Crown Wardship order that indicated it was "silent with respect to access." See also Children's Aid Society of Toronto v. B.O., [2003] O.J. No. 4247 (O.C.J.), at paras. 46-48, and Children's Aid Society v. C.B., [2007] O.J. No. 3573 (O.C.J.), at paras. 53-55.

[16] While temporary orders granting access at the discretion of the society are still made, courts are more and more frequently placing parameters on the discretion such as specifying a minimum number of access visits per week. Court oversight is even more critical when the access contemplated is really a change of placement by another name, especially when the change of placement may have been opposed by one of the parties, or, as in this case, by the child. The society should not be able to get around a disputed change in placement by calling it an "extended access visit," just as, at the other end of the spectrum, it should not be able to terminate access by calling it a "suspension." Both extremes push the concept of "access" beyond the breaking point and thus require prior judicial authorization. There may be valid reasons to place the child on an "extended access visit," such as when the society wishes to test a placement with a parent and does not want the child to lose the foster placement in the event the test is not successful. The point is that the decision is for the court to make, not the society.

[17] The Court of Appeal has tangentially addressed the question of whether an "extended visit" requires prior court approval in R.L. v. Children's Aid Society of the Niagara Region, [2002] O.J. No. 4793. The children in that case had been in the temporary care and custody of the society for over two years, when relatives came forward to present a plan to care for the children. The society supported these plans, but the foster parents, who had hoped to adopt the children, did not. The society advised the foster parents that it intended to place the children with their relatives on an "extended access visit" pending final disposition of the protection applications in the Ontario Court of Justice.

[18] The foster parents commenced an application in the Superior Court of Justice seeking an injunction prohibiting the society from removing the children from the foster home. The court granted a temporary injunction, but the application was ultimately dismissed on jurisdictional grounds. The foster parents appealed to the Court of Appeal for Ontario, which dismissed their appeal. The Court of Appeal upheld the Superior Court judge's determination that the Ontario Court of Justice has jurisdiction over the issue of extended access visits.

[19] The Court of Appeal went on to note that while the appeal was about jurisdiction, the issue of "whether the CAS, under the guise of arranging access, is entitled to effect a residential placement for the children is another question" (at para. 35). The Court did not resolve that question, although it observed that the parties had different interpretations of what constituted "reasonable access." The society's view that the reasonable access included "an indefinite extended visit," while the foster parents' view was that such a visit would actually be a premature residential placement without the court's approval. The Court of Appeal encouraged the parties to seek clarification from the judge of the Ontario Court of Justice who made the order regarding the meaning of "reasonable access."

[20] The case before me highlights how the concept of "access at the discretion of the society" should not be treated by the society as permitting it to place a child on what is tantamount to a new placement under the guise of an "extended access visit." It is critically important under the scheme of the CFSA that the society obtain prior judicial authorization before effecting what is really a change in the child's placement pending final determination of the matter.

Released: 1 December 2017

Justice M.B. Pawagi