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

Date: October 29, 2018

Court File No.: Kitchener 720/14

Between:

The Children's Aid Society of the Regional Municipality of Waterloo

Applicant,

— AND —

C.T., A.L. AND M.T.

Respondent

Before: Justice B. C. Oldham

Motion Heard on: October 12, 2018

Decision Released on: October 29, 2018

Counsel

• Ms Buehler — counsel for the applicant society
• Ms Towlson — counsel for the respondent (M.T.)
• Mr. Brohman — counsel for T.N. (Foster Mother)
• Respondent C.T. — not present
• Respondent A.L. — not present

Decision

OLDHAM J.:

Background

[1] M.T. is the Maternal Grandmother (the "Grandmother") of the child L.T., born on […], 2012 (the "Child"). C.T. and A.L. are the biological parents of L.T. Both parents signed openness agreements and did not oppose a motion brought by the Children's Aid Society of the Regional Municipality of Waterloo (the "Society") on September 6, 2017 for summary judgment seeking an order for crown ward (the "SJM").

[2] M.T. opposed the SJM and brought her own motion for expanded access to L.T. On November 17, 2017, L.T. was placed in the extended care of the Society and M.T.'s motion for expanded access was dismissed. The issue of whether there should be an order granting M.T. access to L.T. was to proceed to a focused hearing.

[3] Unfortunately, the matter has not proceeded to a focus hearing and the issue of access by M.T. remains to be determined.

[4] M.T. has now brought a further motion seeking the following:

a. An order that the maternal grandmother's access to the child, L.T. continue to be two hours every week as has been the arrangement for over two years.

b. In the alternative a reasonable arrangement for access to occur for at least eight (8) hours per month thereby keeping the same visiting time that has been in place for over two years.

c. Such further and other relief as M.T. or her counsel may request and this Honourable Court deem fair and just in the particular circumstances of this case.

d. Costs of this motion on a substantial indemnity basis.

[5] Paragraphs (a), (c) and (d) of this motion were originally sought by motion returnable on March 6, 2018. The balance of the motion was brought by way of a "Notice of Return of Motion" on July 25, 2018.

History of the Case

[6] These proceedings have a rather tortured past.

[7] L.T. was born on […], 2012 and the Society first became involved on September 11, 2012 following a call from Cambridge Memorial Hospital. The Hospital raised concerns about the baby as C.T. was on a methadone program and had admitted to a history of drug use with opiates.

[8] C.T. and A.L. worked voluntarily with the Society from 2012 until 2014. L.T. was brought into the care of the Society by way of a Temporary Care Agreement from March 27, 2014 until May 27, 2014. She was returned to C.T. on May 28, 2014 and was apprehended October 28, 2014 when the first protection application commenced.

[9] L.T. has never returned to the care of her parents. Findings in need of protection were made pursuant to subsections 37(2)(b)(i) and (ii) and 37(2)(g) of the Child Family Service Act (the "CFSA") by Order of Justice Borghesan, dated March 2, 2015. The findings were made based on a statement of agreed facts signed by the parties on March 2, 2015 (the "SAF"). L.T. was placed with her Paternal Aunt, J.L. in accordance with the Final Order of Justice Borghesan.

[10] This Status Review Application was commenced on July 27, 2015 (the "SRA") seeking a further placement with J.L. subject to the supervision of the Society for a period of eight (8) months. The SRA was amended on October 7, 2017 to seek an order for crown ward.

[11] It is noteworthy that this matter was scheduled for and a trial management conference (the "TMC") was held on May 3, 2017. The TMC was adjourned to June 20, 2017 so that the Kin Assessment on M.T. could be circulated and to confirm the status of A.L. On June 20, 2017 the matter was adjourned to a SJM which was heard on September 6, 2017. The decision on the SJM was released November 14, 2017.

[12] Following the decision on the SJM, a second TMC was held on February 5, 2018. The TMC was adjourned pending a motion by the foster parents for expanded rights to participate in the focus hearing. On April 4, 2018, I granted the foster parents' motion. That decision was appealed and the scheduling of the focus hearing has been adjourned pending the outcome of that appeal.

Uncontested Evidence Regarding Access

[13] M.T. was made a party to these proceedings on January 12, 2016, by order of Justice Hardman. While L.T. was having access to M.T. in her home in the summer of 2015, there has not been any access in M.T.'s home since an incident on August 9, 2015.

[14] Following the incident on August 9, 2015, C.T.'s access to L.T. moved to supervised access at the Society. M.T. participated in these access visits consistently from August 2015. M.T. and C.T. attended access visits together until in or around June 2017. C.T. signed an Openness Agreement on March 27, 2017 and her access transitioned from supervised at the Society to access as agreed upon by the foster to adopt family.

[15] There has never been a specific access order which provides for access between M.T. and L.T., but there is no question that M.T. has been attending access visits for over three years. The two years prior to the SJM were with C.T. at the family center and were scheduled for two hours per week; Tuesdays from 3:45 to 5:45 pm. From June 2017 until February 2018, M.T. attended these visits alone or with R.C., the Paternal Grandfather.

[16] On February 27, 2018, M.T. was advised by the Society that the weekly visits would be reduced to alternate week visits for the same two hours on Tuesdays.

[17] M.T. brought a motion on March 8, 2018 to have the status quo access maintained. That motion was not set for argument and the access visits continued until June 28, 2018 when the visits were further reduced to once per month for two hours.

[18] M.T. then brought the Notice of Return of Motion on July 25, 2018, seeking the relief set out above.

Position of the Parties and the Disputed Evidence

M.T.'s Position

[19] It is M.T.'s position that the Society is not exercising its discretion in a reasonable manner and that they have not met the burden of demonstrating that there has been a material change in circumstances to justify a change in the access schedule.

[20] It is M.T.'s position that access visits have continued to be positive and that they are beneficial and meaningful to L.T. M.T. also takes the position that the Society has an obligation to maintain the status quo, pending the focus hearing which will determine the issue of access on a final basis.

[21] M.T. claims that the evidence provided about behavioural issues before and after access visits is hearsay and that even if true, cannot be sufficiently linked to her access visits to support the decision to reduce the access.

The Society's Position

[22] It is the Society's position that it has discretion with respect to access for L.T. and that they are to exercise that discretion with a focus on what is in L.T.'s best interest.

[23] The Society maintains that they have exercised their discretion appropriately. Access was reduced because of the impact it was having on L.T. Reports from the foster family indicated that she was exhibiting some behavioural issues before and after the visits.

[24] L.T. has been diagnosed with rheumatoid arthritis and celiac disease since the November 14, 2017 SJM and that diagnosis represents a change in L.T.'s needs. These needs have been taken into consideration in respect of the scheduling of ongoing access visits.

[25] The visits were further reduced in the summer of 2018 in an effort to reduce stress for L.T. It was noted that L.T. was crying during a visit because she missed her father and that she wet her pants during one access visit. The Society noted the demands on L.T.'s time which included ensuring continued time with her mother and various school and family commitments. A reduction in access to M.T. was framed as a means of normalizing L.T.'s life.

[26] The Society stopped taking observational notes of visits in October 2017, but did not present any evidence to suggest that the visits themselves were negative.

[27] M.T. disagrees that her access visits are having a negative impact on L.T. and maintains that her connection to L.T. is important as she has been a significant part of L.T.'s life since birth.

The Position of T.N. (Foster Mother)

[28] T.N. did not file an affidavit in response to M.T.'s motion, but Mr. Brohman made submissions on behalf of the foster to adopt family. It is his position that the only focus at this stage must be on L.T's best interest and that the issue of access is more appropriately dealt with at the focus hearing when the court has complete information and is making a final determination in respect of access to L.T.

Law and Analysis

[29] This is a unique situation in that an interim motion is being made after there has been a final order for extended care, but prior to any determination as to whether there should be an access order at all.

[30] Counsel for M.T. submits that the court must look to section 104(1) of the Child, Youth and Family Service Act ("CYFSA"), formerly s. 58(1) of the CFSA.

[31] Section 104(1) provides:

104. Access Order. – (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.

[32] It is counsel for M.T.'s position that the Society has not established a material change which is the threshold for varying an access order.

[33] In Children's Aid Society of Algoma v. C.P., 2013 ONCJ 740, Justice Kukrin set out a number of principles applicable when considering access orders under s. 58(1) of the CFSA. Specifically:

1. The criterion for making an access order is the best interests of the child. (see para 5).

2. There must be some change in circumstances to justify a change in the current access order and that change must be tied to the best interests of the child. (see para 6).

3. The status quo is represented by the existing order. The person who wants to change that order has the onus of demonstrating not only that some change in circumstances has taken place, but also:

   a. that this change in circumstances renders the existing order no longer in the best interests of the child(ren); and

   b. that the new order sought now represents what is in the best interests of the child(ren) (see para 7).

[34] Section 104(1) of the CYFSA has not changed and the above principles are still applicable under the new legislation.

[35] As noted above, there is no specific access order in respect of M.T. Prior to the SJM, M.T. was attending access with C.T. C.T.'s access was at the discretion of the Society, but was regularly scheduled for two hours once a week. Given that there is no clear access order, it is unclear whether there has been a change in access or whether the Society is just exercising their discretion in respect of scheduling access. That said, whether framed as an onus to demonstrate a change in circumstances justifying a change in access, or as a determination of whether the Society is exercising its discretion appropriately, the focus must be on L.T.'s best interests.

[36] It is M.T.'s position that the Society should not change the status quo pending the final determination of access. Moreover, it is M.T.'s position the Society made representations at the SJM in the context of M.T.'s motion for expanded access that it did not intend on changing M.T.'s access. It is M.T.'s position that the Society is bound by this representation.

[37] It is the Society's position that it did not represent that access would not change, only that it did not intend to change the access at that time, based on its assessment of the circumstances at the time.

[38] While the Society may not have intended on changing access at that time, I declined M.T.'s request for increased access, in part because:

[123] In light of my decision on the summary judgment motion and in particular the determination on the issue of disposition [ie., by making an order for crown ward], access, if granted, will ordinarily, be reduced once a child is made a crown ward. [Emphasis added].

[39] I then went on to reference the explanation for such reduction in access as described by J. Clay in the Children's Aid Society of the Region of Peel v. A.R., 2013 ONCJ 347 at para 90 as follows:

[90] The Court finds that an access order should be made in all of the circumstances of this matter. However the access that will be granted will be significantly less than the current access. The granting of a Crown Ward order means the end of any effort to return the child to the mother on reintegration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child. [Emphasis added]

[40] The change in focus that is applicable to family members and a child placed in extended society care, is supported by section 105(4) of the CYFSA which provides that access orders are terminated if an order is made for extended society care. Specifically:

(4) EXISTING ACCESS ORDER TERMINATED IF ORDER MADE FOR EXTENDED SOCIETY CARE - Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101(1) or clause 116(1)(c), any order for access made under this Part with respect to the child is terminated.

(5) WHEN COURT MAY ORDER ACCESS TO CHILD IN EXTENDED SOCIETY CARE - a court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) unless the court is satisfied that the order or variation would be in the child's best interests.

(6) ADDITIONAL CONSIDERATIONS FOR BEST INTERESTS TEST – The court shall consider, as part of its determination of whether an order or variation would be in the child's best interests under subsection (5):

(a) whether the relationship between the parent and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption.

[41] As noted above, this is a unique situation in which there has been an order for extended care, and only the issue of access has been deferred to trial. The fact that the determination of the issue of access has been deferred for over a year necessitated some action by the Society as the 'parent' of the child in managing the access between M.T. and L.T.

[42] I do not find that the Society has acted contrary to L.T.'s best interests in reducing the frequency of access. As observed, it is important to begin to normalize her life. L.T. has been out of her mother's care since 2014, when she was two years of age. This SRA has been before the courts since July 2015; over three years now. L.T. turned six years of age in September. This case has languished far too long. To the extent that frequent access, even if enjoyable, is causing distress to L.T. or hampering her ability to integrate or fully participate within her new family unit, the Society appropriately adjusted the ongoing access.

[43] M.T.'s counsel continued to focus on my comments in the SJM decision around the need for supervision in respect of M.T.'s access with L.T. While my comments do not support her motion to maintain a weekly access status quo, I continue to question the necessity of the level of supervision at the access visits. It does not appear that the Society has canvassed the option of community or unsupervised access, nor have they provided any evidence to suggest that continued attendance at the supervised family center is necessary. I question whether some of the distress that L.T. may be experiencing is the fact that access continues to be at the family center where she historically visited with her parents.

[44] It would not be in L.T.'s best interest to terminate access at this stage (ie., with the focus hearing on this issue pending). Accordingly, given that there is no order in respect of M.T.'s access, it is appropriate that there be a temporary access order. It is also appropriate that access move to a more normalized environment. For these reasons, M.T.'s motion is granted in part, and I will make an order for access in the community or in M.T.'s home.

Order

1. On a temporary basis, there shall be a right of access to the child, L.T. born on […], 2012 to her maternal grandmother, M.T. at the discretion of the Children's Aid Society of the Regional Municipality of Waterloo (the "Society") in respect of location, duration and frequency. Access may be supervised or unsupervised at the discretion of the Society, but will occur in the community or at M.T.'s home.

Released: October 29, 2018

Signed: Justice B. C. Oldham

[1] Not a party to the proceedings, but granted expanded rights to participate by Order of J. Oldham dated April 4, 2018. Order currently pending appeal by M.T.