WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.-- (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

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 Information

Ontario Court of Justice

In the Matter of the Child, Youth and Family Services Act, S.O. 2017, c. 14, Schedule 1

Between:

Children's Aid Society of Algoma A. Marrato, for the applicant

— And —

T.W. Self-represented, mother

C.E. S. McCooeye for the Respondent father, C.E.

Heard: June 8, 2018

Judge: John Kukurin

Reasons for Decision

[1] Introduction

The issue to be decided in the two motions before me is whether to place the 4-year-old child with "kin" or whether to place him with the society which will place him in foster care. It is necessary to have some background to fully understand the context.

[2] Naming Convention

As the names of the individuals are likely to be converted to initials, I am taking the liberty of starting that process in these Reasons in the hope that these will simply be carried on. I believe they are the least confusing to any reader. The applicant is hereafter referred to as CAS; the mother as M and the father as F. The child is C, which co-incidentally is the first letter of his given name.

Background

[3] Initial Child Protection Application

The matters before me are two opposing motions, one brought by the CAS and the other by the F. They are brought in a Status Review Application. However, the child protection story begins much earlier with a Child Protection Application commenced in August 2013 under the Child and Family Services Act (CFSA). C was released to the F from hospital after his birth. The CAS started a child protection case which resulted in a finding that C was in need of protection under risk of physical harm grounds [S.37(2)(b)(i) CFSA]. It sought a placement with the F subject to a six-month supervision order with conditions. The order, dated Sept 11, 2013, also included access rights of the M, also subject to conditions. It was evident that the risk of physical harm emanated from the M at that time, not F.

[4] First Apprehension and Return to Father

The M and F continued to cohabit after the birth of C. However, not in bliss. As a result of parental argument, a home in disarray and the apparent use of drugs and alcohol by F, the child C was apprehended on November 1, 2013, about two months later, from the F. During the ensuing Status Review application, C remained in CAS care in a foster home for 19 months until he was returned to F's care on a temporary basis on June 10, 2015. This placement was finalized on Nov 18, 2015 with a 12-month supervision order with conditions. This order also gave M access subject to conditions.

[5] Status Review Application and Substance Abuse Concerns

Things ostensibly went well enough for almost a year following this order that the CAS brought the present Status Review application in October 2016 seeking to terminate the order and work voluntarily with F. That did not materialize, as events suggested that the F had fallen off the wagon so to speak. The CAS then amended its application in August 2017 to seek a further 12-month supervision order after a follow-up by the society on an anonymous phone call in February 2017 confirmed that F was drinking alcohol, was not taking his prescribed antabuse medication, and was buying marijuana off the street. Somehow, the F and C ended up in Pickford, Michigan and stayed with the maternal grandmother and her husband (who lived there) until later in 2017. He then returned to Sault Ste. Marie, Ontario. In the meantime, he had made efforts to straighten out his life, including enrolment in a residential substance abuse treatment program. The CAS brought a motion (at Tab 6, Vol 3) in August 2017 for the child to be placed with the F on an interim basis with more restrictive conditions. It was unsuccessful and the child remained with F subject to the same conditions as in the order of November 18, 2015.

[6] Mother's Circumstances and History

Throughout all of this time, the mother had varying degrees of access to C. She had a tumultuous life and was, according to the evidence, the author of her own misfortune. She had a child prior to C, a girl whose custody she lost to her own mother, a mother with whom she has a dysfunctional relationship, reaching, at times, physical threats and assaults by M. This is only the tip of the iceberg. The M is fast becoming a recidivist criminal, and was wanted on an arrest warrant on a number of charges when the current motions were being argued. She has an unstable residential history, residing at times with the maternal grandmother, the F, Women in Crisis, her girlfriend, and most recently, a boyfriend who is currently charged with inflicting a severe beating on her. The M has mental health problems overlying her poor social skills. She is, by all accounts, one of the main stressors on the F, who has let her come back into his life time and time again, despite continuous warnings by the CAS that she is "bad news" for him, and that he has to keep her at a far distance. The M also used drugs, and I am satisfied that she used social media to threaten others using a pseudonym. Her access has, for quite a while been, and is currently on hold. She has since given birth to a third child who is in CAS care in a separate child protection proceeding.

[7] Status Review Application Amended and Trial Management

The Amended Status Review application has reached the trial management conference stage. Trial dates have been set for eight days commencing October 30, 2018. However, the claim of the CAS is once again going to change to one for extended society care (formerly crown wardship) with no access, so that the child C can be adopted.[1] The child has already timed out in care of the society,[2] so that extended CAS care or placement with someone other than the F or M are the only two reasonably permissible options at the moment.

Motion of the Society (Tab 13)

[8] Circumstances of Child's Removal

This motion (at Tab 13, Vol 3) was brought after a further removal of the child C from the care of F following an anonymous telephone call to the CAS on Saturday June 2, 2018, that the F was drinking, and was intoxicated, had left C asleep and unsupervised, and was walking around the neighborhood without the child. The CAS investigated with police assistance and confirmed that the F was indeed intoxicated, the C was in a second floor bedroom asleep, with no safety gate to prevent him from falling downstairs. The baby monitor receiver was in a garage where there was some allegation that the F and some friends had been drinking. Initially, the F called his father (PGF) and stepmother (paternal step GM) who came to his home within 10 minutes. A safety plan was agreed upon that the step GM would remain in the F's home until the C awoke and then C would remain in the care of these grandparents until the F could meet with the CAS worker on Monday. The F was not to be in a sole care giving role.

[9] Breach of Safety Plan and CAS Motion

However, the next day, when the CAS checked, C was not with these grandparents. C was with the F and A.S., an ex-girlfriend of the F with whom he had had a relationship and a child (W.) who was living with A.S. and her younger child E. A.S. had stayed with the father and C at his request although when she had come is not clear. In any event, the F and his paternal grandparents had not followed the safety plan and had devised their own alternative plan. The following day, the CAS sought a warrant to remove C to a place of safety. Its efforts were unsuccessful and it decided to remove C without a warrant, which it did on June 4, 2018 from A.S.'s residence where the child was located. C was placed in the same foster home he had been in during his previous 19 months in society care. The CAS then brought its motion, on less than two days' notice (served on June 6, 2018 after 2 pm on counsel for the F and returnable June 8, 2018). The motion seeks an order that C remain in the temporary care and custody of the CAS. It also seeks an order that the M and the F have reasonable interim access to C, which was to be arranged between each of them and the CAS, and was to be supervised in the discretion of the CAS by the CAS or by a CAS approved person. It was also to be subject to a number of terms and conditions which the CAS specified in detail.

Motion of the Father (Tab 15)

[10] Father's Counter Motion

It is unusual that a Respondent would have a counter motion before the court so soon as in this instance. But the F did. It was brought on less than one day's notice (served on the CAS counsel on June 7 and was returnable June 8, 2018). So it, as well as the CAS motion at tab 13, were on much shorter notice than is normally permitted by the Family Law Rules. However, both counsel wished to argue both motions and waived any deficiencies in the notice time.

[11] Father's Proposed Placements

The F did not seek a return of C to his care. He advocated placement with his mother (the PGM) in Pickford, Michigan, and sought court approval for her to supervise his access to C. Alternatively, he sought placement with A.S., in Sault Ste. Marie, with court approval for her to supervise his access to C. The alternatives he proposed for placement were to be subject to CAS supervision with reasonable conditions. As for his access to C, he sought an order that such access be specified by the court with respect to frequency, duration, location and level of supervision, if any.

The Law

[12] Applicable Statutory Framework

The law was revamped quite recently with the enactment of the Child, Youth and Family Services Act (the CYFSA) which essentially replaced and renumbered almost all of the sections of the CFSA. With respect to the provisions dealing with the situation in the present circumstances of this case, the most relevant is s.113(8) CYFSA:

S. 113 (1) This section applies where a child is the subject of an order made under paragraph 1 or 4 of subsection 101 (1) for society supervision or under paragraph 2 of subsection 101 (1) for interim society care.

S. 113 (8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody.

[13] Interpretation of Section 113(8)

This subsection applies to the care and custody of a child after a status review is brought with respect to that child. It does not distinguish between those situations where a child remains with its prior caregiver and custodian under the order being reviewed, and those where the child is removed by the society from its prior caregiver and custodian. More importantly, it does not say anything about the nature of the "change in the child's care and custody" if the court is satisfied that the child's best interests requires such a change. In the present context, it does not help the court to decide if the change is to place the child with the society, or with the paternal grandmother or with A.S. However, it does state that the change, whatever it may turn out to be, is one that is required by the child's best interests.

[14] Best Interests Test Under Section 74(3)

This is important because s.74(3) CYFSA provides that:

S.74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall:

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including:

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[15] Judicial Interpretation of Prior Legislation

The statute law is not the only law that applies. Section 113(8) has not been the subject of judicial interpretation, because it is so new on the child protection scene. However, s. 64(8) CFSA has, and it contains the identical wording as the current s.113(8):

S.64 (8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody. 2006, c. 5, s. 22.

[16] Precedent: Children's Aid Society of Brant v. J.L.

Thibideau J. stated in Children's Aid Society of Brant v. J.L., a contest involving temporary placement of children between kin (who had charge) and the society and the mother (both of whom wanted the mother to have charge):

"The proper test to determine the issue on a temporary basis is the status review 'best interests' test - now subsection 64(8), previously subsection 64(10) - on a temporary basis and not the risk-of-harm test for other temporary orders before final order of substantial risk and concomitant least intrusive order pursuant to section 51. To determine otherwise appears to be appealable error."

And at paragraph [28]:

"Both the pre-trial temporary order section and the status review temporary order section of the Act materially restrict the general 'best interests' test, but to opposite effect in terms of where the child will reside on a temporary basis."

Ultimately Thibideau J. chose to keep the children with the kin for the several reasons stated in the decision. Both the kin and the mother were suitable placements but the kin were slightly better in the context of that proceeding.

[17] Finding that Change in Care and Custody is Required

There are somewhat conflicting decisions on the meaning of the word "requires" in s.64(8) CFSA, now s.113(8) CYFSA,[5] but it is not a difference that is pertinent to the issue in this case. I am satisfied that the facts in the case of the child C requires a change from the care and custody of the F. The F is alleged to have breached a number of the supervision order conditions under which C was entrusted to his care. The most egregious was being intoxicated when he should have been totally abstaining from alcohol while he had care of the child. However, there were others including not allowing the child to be in the same residence or being cared for by anyone under the influence, not properly supervising C, and not taking his prescribed "antabuse" medication faithfully. The F also unilaterally decided to change the safety plan agreed to and therefore cannot be trusted to stick to a plan agreed to by him. I also infer, although I admit I may be mistaken, that the anonymous report that set the removal of the child in motion was the M who likely was at the F's residence to be able to report all of the things she did to the CAS. The F is not seeking the return of the child to himself at this juncture which confirms that he, too, acknowledges a change is required in the child's care and custody.

[18] Issue Before the Court

The issue is how to decide into whose care and custody the child should be placed on a temporary basis pending the trial in this case. And what criteria does the court apply in making this determination?

Analysis

[19] Access Considerations in Temporary Placement

In the analysis of temporary placement, there is also the consideration of access to or by C. This is inevitably going to be a factor as all parties present have parental access claims, including for maternal access, even if it is not currently being exercised. The F is seeking an order for access which is materially different than the one that the CAS is seeking for him to have. Interim paternal access cannot be left out of the consideration of temporary placement.

[20] Child's Views and Wishes

There is some evidence that C values his contact with F; in fact, to reside with F would be C's first choice according to some evidence. The child's views and wishes are a clear "best interests" factor under the CYFSA unless they cannot be ascertained. I am deferring access to be dealt with later in these Reasons.

[21] Rejection of Placement with Mother

It is often better to start by excluding options to see what is left. The M is an option that I reject. She is what I would characterize as a "mess" as a parent or caregiver for a child. She is nowhere in sight, is evading both the law and an arrest warrant, and has not exercised access to C which the CAS put on hold. A recent parenting capacity assessment in the proceeding involving her latest born child was very unfavourable to her abilities as a parent. No one is advocating placement with her in any event.

[22] Rejection of Placement with Paternal Grandmother

The paternal grandmother resides in Pickford, Michigan which is only 25 miles from Sault Ste. Marie, but unfortunately is in the USA, another country in which the CAS has no jurisdiction. There is no evidence that the CAS has, or can rely on, any analogous agency in the state of Michigan to carry out any supervision mandate that the court may impose in any temporary care and custody order in favour of the paternal grandmother. The grandmother appears otherwise to be a suitable candidate for temporary placement. In fact, C lived at her home with F for a number of months between February 2017 and August 2017 with knowledge of, and the acquiescence of, if not the approval of the CAS, and did so without any known incident or adverse event.[6] No one contends that C does not have a beneficial relationship with his paternal grandmother and her spouse.

[23] Jurisdictional Concerns with Paternal Grandmother

This is not an indictment of the paternal grandmother as a final caregiver and custodian of C. There are several considerations under s.74(3) CYFSA that favour placement with her. It is rather a judicial reluctance to award temporary care and custody to her with the jurisdictional problems that this would entail. Moreover, it would remove the child from the F and M, as well as the CAS, thereby interfering with the supervisory function as well as access arrangements that would inevitably have to be made in the interim. I have to reject the paternal grandmother at this point.

[24] Remaining Options

This leaves A.S. and the CAS in contention for temporary care and custody placement.

[25] CAS Argument for Foster Care Placement

The CAS argues that it is the logical and most reasonable candidate for temporary care and custody of C. The child C was placed in the home of his former foster parents so this avoids some disruption for C. He was reported by the CAS as happy to see the foster parent, had a good night and settled in and slept well (although he wet the bed). The 19 months C spent in this foster home made that home and the foster care he received there very familiar to him. There is no evidence that this foster care was inadequate or could be faulted in any other way. In fact, the F has kept in some friendly contact with the foster parents after C was returned to him in June 2015. The CAS argument intimated that its foster family should be considered by the court to be a safe and suitable placement as a basic underlying premise. It did not lead any evidence, apart from the foregoing, to support this. I cannot say that I disagree strongly with this position, although I am not sure that I would take judicial notice that all foster families share these qualities and share them equally.

[26] Insufficient Information About Foster Home

The CAS does not provide much in terms of details of the foster care it is proposing to put in place if it is awarded temporary care and custody. What the court knows about the foster home is set out above. What it does not know is considerably more. For example, where is the home located? Is it in Sault Ste. Marie or in another community? Does the foster family have long-term intentions for care of C or are they fostering for the short term? Are there other children in that home, and if so, who are they? What are the ages of these foster parents? How do these foster parents relate to the F? And to the M? Do they have any attributes that make them particularly suitable or unsuitable to foster parent the child C? What relationships did C develop when he was with them previously? A review of the previous materials filed in this case discloses that C was in hospital while in their care. The intimation was that second-hand smoke during access had caused him to be in medical distress.[7] However, this was never the subject of any medical diagnosis, and the fact remains that C was hospitalized some time after he was placed in the care of these foster parents. More information about the foster home, particularly in terms of circumstances listed in S.74(3) CYFSA, would enable the court to compare the temporary care and custody plans of the CAS and of A.S. in a best interests context.

[27] Comparison of Society Placement with Kinship Placement

The CAS does not consider temporary care and custody placement with A.S. to be as good a placement as with itself. It is probably true that no placement with anyone can be as good as with a children's aid society, with all of the resources of the state behind it. However, comparison of society placement with placement with kin is not a straight comparison. The reason why a society is even involved in C's life is because of protection concerns about C in the care of his F and/or his M. They are both out of the picture at this point as caregivers and custodians. Their contact with C will be as access parents for the foreseeable future, maybe even to the point of C's attaining his majority. In any event, protection, the main reason why the CAS is involved has been attenuated by the removal of C from the F's care.

[28] Statutory Preference for Family and Community

The CYFSA, like its predecessor the CFSA promotes as its primary purpose, the best interests, protection and wellbeing of children [S.1(1) CYFSA] and recognizes the need for help to give support to the autonomy and integrity of the family unit [s.1(2) paragraph 1], recognizes that the least disruptive course of action available and appropriate should be considered [s.1(2) paragraph 2], and provides that services to children should respect the child's need for continuity of care and for stable relationships within a family, takes into account the child's physical, emotional, spiritual, mental and developmental needs, and, among other things, the child's ancestry, and family diversity [s.1(2) paragraph 3].

[29] Statutory Preference for Kinship Over Society Care

A.S., or rather the F, as he is the motion applicant in the motion at Tab 15, does not have to demonstrate that placement with A.S. is better for C than placement with the CAS. What needs to be demonstrated to the court is that C will be safe if placed temporarily with A.S. and that the best interests of the child will be met with such a temporary placement. In a contest between a society and kin, the preference is kin before society. That this is so is, I believe, evident from the preferential provisions of the CYFSA for "kin" placement over society placement. In particular, this is clear from s.94(5):

S.94 (5) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child's best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

[30] Sequential Order of Placement Options

I believe this is also evident from the order of the sequential options in s.94(2) where temporary care and custody placement with the society is the last option given.

[31] Less Disruptive Alternatives Preferred

Finally, s. 101 provides in its subsection 3 under the headnote "Less disruptive alternatives preferred" as follows:

S. 101(3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

[32] Community Placement to be Considered

Also in s. 101 is subsection 4 under the headnote "Community Placement to be considered" the following:

S. 101(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

[33] Extrapolation of Statutory Preference

Although these provisions do not specifically apply to s.113(8) CYFSA, they certainly give an indication of the statute's preference for non-society care, where it is available and appropriate, over society care. I do not shy from extrapolating this preference to the current issues before this court.

[34] Attributes Favouring A.S. as Temporary Caregiver

A.S. does have some attributes that favour her as a potential temporary caregiver and custodian to C. Among these are the following:

• She and C are not strangers. He has spent time at her home. She has cared for him at times.
• She is the mother of W., a half-brother of C. W. and C have spent time together, particularly during the father's access periods.
• She is a full-time mother. She does not work outside the home and has the time to devote to her children.
• She has no police record and has never been convicted of any offence.
• She is able to provide for C for as long as it takes, indefinitely if necessary.
• She is willing and able to work subject to any supervision order the court may impose and to comply with such order.
• She has a three-bedroom home and all amenities required for C's care.
• She has had some involvement with the CAS but in connection with issue of safety of her youngest child E. while in the care of her father.
• She is in counselling with Algoma Family Services for the past two years.
• She will commit to keeping C attending his present school to school year end.
• She is aware of C's asthma and his learning needs.
• She has a support system including her parents and the paternal grandmother should child care issues arise.

[35] Suitability of A.S. and Kin Assessment

From the s.74(3) best interests perspective, A.S. presents as a suitable person to whom the court can entrust the temporary care and custody of C. In addition, the court can attach whatever it feels is needed as terms or conditions that would apply to her in her role as a temporary caregiver and custodian. The CAS has not contradicted any of her claims of suitability for this role. At best, it has questioned some of them. For example, why is she in counselling? This is undisclosed. What the society argues is that it has a process which involves an investigation and an assessment of persons who seek to have care of a child who is the subject of a protection order. This is called a "kin assessment".

[36] Kin Assessment Not a Prerequisite

This is quite true. There is, or was, a regulation (O.Reg 206/00) made under the CFSA. Whether it has been replaced by a similar regulation under the CYFSA is not known. It is what sets out what a society must do for a kin assessment. The society argues that a kin assessment of A.S. is needed before a decision can be made to place C with her. I do not agree. In this case, the society has estimated a 30 to 45 day time estimate to perform a kin assessment. This is only an estimate and is much too long. While I agree that a kin assessment might be a valuable source of information for the court, it is not a requirement imposed on the court. In fact the court is being asked by both counsel to make an order now. So does the statute. I agree that the court should make an order now and should do so on the basis of information that it has, not that it may have in the future. This is not a new issue. I dealt with it in a previous unrelated case where the issues and the contest were very similar to the one in this case. Ultimately, I chose to place with "kin" over placement with the society.[9] The CAS is free, however, to continue with its kin assessment of A.S.

[37] Supervision Order as Safeguard

I am comfortable with a kin placement because I can impose a supervision order which will have the CAS involved in the kin placement, and it can monitor and otherwise ensure that it is working properly. Moreover, as mentioned above, this court can impose any reasonable terms and conditions that are appropriate to ensure that C is safe and properly cared for.

Access Considerations

[38] Limitations on Society-Supervised Access

There is one other major reason to prefer a kin placement over a society placement. This involves access. The inference I make from the historical evidence in this case is that the society has limitations that it places on parental access visits in terms of frequency and duration. This is mainly because it does not have the financial resources or the manpower to supervise more access. This translates to a policy that sets a maximum amount of access per week depending on the child's age, capacity of the parents and the child, risk and permanency planning. The society also tends to have some of its access held at the society's access centre but this does not operate on weekends, nor on statutory holidays. Moreover, the society's evidence is that the society's supervised access resources are fully occupied and already stretched, and that the society cannot provide greater amounts of access than it is currently providing.[10]

[39] Access Discretion and Resource Constraints

The CAS does not disclose what access it proposes to offer to the F in this case. It is a fair inference to conclude that it will all be supervised, at least initially. This necessarily limits the time and duration of paternal access. If the M surfaces and recommences her access, it will also likely be fully supervised. This supervision will be by the society as there does not seem to be anyone who is currently approved as an access supervisor. The corollary of this is that there will be limits on access based on resource limitations rather than on best interests considerations. However this will only be the case if the court agrees to the access terms that the CAS wants it to order which gives the society a great deal of discretion with respect to access arrangements. I confess that I have little faith that access "to be arranged by the [parent] with the society" will ever result in a true bilateral agreement, particularly if the child is in the society's temporary care. It is more likely to lead to an actual agreement if the child is in the care of a non-parent third party who may be more amenable to parental access and less constrained by fiscal limits.

[40] Statutory Authority for Access Orders

Parental access order is authorized by the CYFSA in s.104(1) and it is an order that is also based on the best interest criterion.

S. 104 (1) The court may, in the child's best interests:

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[41] Child's Views and Wishes on Access

The court is obligated to take the specified considerations in s.74(3)(a) and (c) into account in setting access terms. The considerations in (a) involve the child's views and wishes. The evidence from the father on the child's wishes are at best speculations of the paternal grandmother and of A.S. of what is in the mind of a four-year-old child. I accord very little, if any, weight to this evidence. The society's evidence is almost non-existent on the child's views and wishes for parental access. That may well be because of the child's age and inability to express them.

[42] Best Interests Considerations Favour Paternal Access

However, the other considerations in s.74(3)(c) clearly favour at least paternal access, and in more generous amounts than the CAS is willing or able to offer. This is a father who was the primary caregiver for the child over the past year until he was removed from his care. It is a very big jump from 24/7 contact between F and C to the rather minimal visits that the society says it can afford to offer. Neither the society's access submissions nor those of the F really focussed on the best interests considerations in S.74(3)(c) CYFSA.

[43] Maximum Contact Principle

One other consideration is the maximum contact principle which is imported from the federal Divorce Act provisions.[11] There is no reason why this principle is not applicable to a child protection case.

S.16 (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[44] Structuring Paternal Access

How paternal access will be structured is difficult to determine. It does not just depend on the father. The society may wish to supervise part or all of his access. Or it may wish to designate someone else to be his access supervisor. I am not about to designate anyone to be an access supervisor in absence of information as to the willingness of such person, the circumstances where the supervision is to take place, and any conditions or restrictions on such supervision. If the parties cannot agree, I will hear further submissions on access terms including supervision. As for maternal access terms, I heard little in submissions and this appears to be moot at the present time.

[45] Access as Right of the Child

I might add that access is the right of the child. The child is at the centre of a constellation of persons who have various degrees of significance in his life. These other persons have no access rights by law, but they may want to visit with C. Their contact with C is at the pleasure of whoever has care and custody of C, and is also subject to any restrictions that the court impose. For example, the child has paternal grandparents and a maternal grandmother, all of whom have had some involvement in his upbringing. The maternal grandmother, in fact, has a half-sister of C residing in her care. The society has no evidence on contact with such other persons. It should be addressing its mind to such individuals.

Summary

[46] Placement Decision

In summary, I am prepared to place the child C in the temporary care and custody of A.S. This will be subject to a supervision order in favour of the CAS. I expect that the CAS, the F and A.S. can arrive at suitable supervision order terms. If not, I will set them. In the meantime, I propose to extend the existing order to allow sufficient time for preparations to be made to effect the transition of C as smoothly as possible.

[47] Interim Access Orders

I am not prepared to make any interim paternal access order without either a consent to the terms of such order from the CAS, the F and A.S., or on hearing further submissions from counsel, preferably with further evidence, on the issue of access. For the interim, maternal access is not sought by the mother who has not filed an Answer to the current amended application. I acknowledge that there is a maternal access order outstanding which I propose will continue until further order of this court.

[48] Contextual Factors and Future Considerations

There are other factors that are at play in these Reasons. Firstly, it is clear that the risk of harm that was involved in the finding in need of protection was related to the M, not the F. However, it appears that the F may now be the source of a risk of harm. Whether he is out of contention for being C's caregiver and custodian again remains to be seen. Secondly, the amended status review case is clearly out of date by virtue of recent developments. Procedurally, it must be again amended. It is likely to require much more time to resolve. Thirdly, the society's direction is changing by its own admission and by virtue of the statutory time limitations. Fourthly, the role of other persons in C's life is also subject to change if the F does not seek a return of C to his care or cannot convince the court that he can overcome his parenting deficiencies. Others may seek to have C in their care. Fifthly, to have C in foster care will likely cause his connections with currently significant persons in his life to wither and dry up as his contact with them is reduced. It may be that this is what eventually occurs but it is premature now.

[49] First Nations, Inuit and Métis Status

There will be a finding under s.90(2) CYFSA that the child C is not a First Nations child, nor an Inuit child nor a Métis child.

Released: June 13, 2018

Signed: Justice John Kukurin

Footnotes

[1] It is unlikely that the trial will actually proceed as it is currently based on a contest over a claim for the conditions of a supervision order that will apply to the father having care and custody of the child. This is not what the fight is about now. It is a fight for permanent removal of the child from the family so that he might be adopted. This claim has not yet been formally made. It must be served on the parties. They have to be able to file an Answer. It is likely that other persons may intervene and seek to have care of the child. In short, the playing field has changed and the issues are completely different. The trial will have to be re-assessed in terms of length if nothing else.

[2] S.122 (1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101(1) that results in a child being in the care and custody of a society for a period exceeding:

(a) 12 months, if the child is younger than 6 on the day the court makes the order; or

(b) 24 months, if the child is 6 or older on the day the court makes the order.

S.122 (3) The period referred to in subsection (1) shall include any previous periods that the child was in a society's care and custody under an interim society care order made under paragraph 2 of subsection 101(1) or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society's care and custody.

The CYFSA provisions that took effect on April 30, 2018 changed the terminology of protection orders. The previous temporary wardship order became the interim society care and custody order. The previous crown wardship order became the extended society care order. The previous temporary care and custody order is now termed a temporary order for care and custody. What the order is called when a child is removed by a society from a person who has care and custody subject to a society supervision order is missing from (not specifically named in) the CYFSA. Presumably, the time that a child spends in care of a society after such removal is not counted in the limitation times in s.122(1) CYFSA. This is either a blatant oversight of the legislative draughtspersons or a deliberate exclusion by them. It is an anomaly as this period of time can easily exceed one or two years, yet not officially count at all in the time in care limitation.

[3] With respect to S.74(3)(a) CYFSA, there is some question of what the child's views and wishes are and will be dealt with further in these Reasons. As for s.74(3)(b), the child is identified as not being Indian or native under the former CFSA. However, the current identification requires a finding of whether the child is a First Nations, Inuit or Métis child. I have determined that he is none of these and accordingly, s.74(3)(b) does not apply in the best interests considerations.

[4] Children's Aid Society of Brant v. J.L., 2008 ONCJ 527

[5] See Children's Aid Society of Algoma v. S.S., 2010 ONCJ 332; Children's Aid Society of Ottawa v. E.S., 2010 ONCJ (Annis); Children's Aid Society of Toronto v. S.G., 2011 ONCJ 746

[6] During this period of residence at the paternal grandmother's home in Michigan, the society did in fact have a supervision order mandate over the father and the child. It is not well explained in the evidence if and how the society carried out its mandate then.

[7] The child C has asthma, has puffers and should not be subjected to second-hand smoke.

[8] O. Reg 206/00 - PROCEDURES, PRACTICES AND STANDARDS OF SERVICE FOR CHILD PROTECTION CASES contains in its Part II the things that a society must do prior to placing a child with kin. While this is a regulation that binds a society, it does not bind the court. At one time, there was no such regulation and courts often placed a child with kin without a kin assessment.

[9] See Children's Aid Society of Algoma v. L.H., 2014 ONCJ 394 for a more fulsome treatment of the "kin assessment" in a child protection proceeding.

[10] For a more complete outline of the society's position on access, it is set out at paragraphs 79 to 83 in the affidavit of the society worker, Patricia Barber, at Tab 3, Volume 2 of the continuing record.

[11] The maximum contact principle has been applied in considering access issues in child protection cases. See Catholic Children's Aid Society of Toronto v. Z.Y.J., 2017 ONCJ 353 (Murray Ont CJ)