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: 2018-07-12

Court File No.: Sault Ste. Marie Court file No. 203-15

Between:

Children's Aid Society of Algoma, Applicant

— AND —

L.M. B.H. N.F. Lac Seul First Nation Band Representative C.M., Respondents

Before: Justice John Kukurin

Heard by: Written submissions

Reasons for Judgment released on: July 12, 2018

Counsel

Jennifer Mealey — counsel for the applicant society

Eric McCooeye — counsel for the respondent mother, L.M.

Trevor Simpson — counsel for the respondent father, N.F.

Christie Whitfield — counsel for the added party, C.M.

No appearance by or on behalf of Lac Seul First Nation Band Representative, and for B.H. even though served with notice

REASONS FOR JUDGMENT

KUKURIN J.:

Claim in Paragraph (1) – Withdrawal of Motion

[1] This is a decision on a motion at Tab 1, Volume 3 brought by the applicant society, and specifically is limited to only those claims in paragraphs 1, 2 and 3 of the motion.

[2] Claim in Paragraph (1) – This claim is for an order to withdraw the motion of the applicant society dated and filed June 8, 2018. A review shows this motion to be at Tab 18, Volume 2 of the continuing record.

[3] An applicant does not need a court order to withdraw a motion. It has the right to withdraw any part of its application at any time (except for that part of an application for a finding that a child is in need of protection, for which it needs the leave of the court).

Rule 12. (1) A party who does not want to continue with all or part of a case may withdraw all or part of the application, answer or reply by serving a notice of withdrawal (Form 12) on every other party and filing it. O. Reg. 114/99, r. 12 (1).

[4] A motion such as the one at Tab 18, Volume 2 is a motion brought within, and is a part of, the application of the society.

[5] Accordingly, the court can dismiss, or stay or grant the motion, but only the society can withdraw it. Of course, if it does so, it is subject to the sanction provided for in the Rules.

Rule 12 (3) A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise. O. Reg. 114/99, r. 12 (3).

Claim in Paragraph (2) – Variation of Temporary Care and Custody

[6] Claim in Paragraph (2): This is the main claim that the court is asked to decide. It seeks an order that places the children N., P. and M. in the interim (i.e. temporary) care and custody of their maternal grandmother, C.M.

[7] This child protection case started in September 2015. At that time there were three children: A., N. and P. The application with respect to the child A., who was identified as an Indian child entitled to be registered with Thessalon First Nation, was transferred to Nogdawindamin Child and Family Services, and it is proceeding as the applicant in that case. The child M. was born Nov 22, 2016, during the course of this child protection case. The society brought a separate child protection application with respect to her. That application was ordered to be heard together with the present application which involves the two remaining children, N. and P. There have been no findings made that any of the four children are children in need of protection.

[8] A review of the court record indicates that the children N. and P. have been in the temporary care and custody of their maternal grandmother, C.M., continuously since March 10, 2016. That same review indicates that the child M. has been in the maternal grandmother's care since shortly after she was born in late November 2016. M.'s exact status is not precisely explained in the present file.

[9] However, on February 7, 2017, an order was made that placed N. and P. in the temporary care and custody of the society. M., it appears, may already have been in the temporary care and custody of the society at that time. In any event, a later order dated June 27, 2017 placed all three children, N., P. and M. in the temporary care and custody of the society.

[10] Despite such orders, the actual residence of these three children did not change. It remained with their maternal grandmother. But the placement with the grandmother changed. It became what is known as a 'kin-in-care' placement. What this means is that the home of the maternal grandmother was approved as a foster home for these three children. As a foster home, and with the maternal grandmother as a foster parent, the society can provide funding to assist in the financial burden having these three children in the home created.

[11] The maternal grandmother has now been added as a party respondent. The only reason for this seems to be that she wishes to advance a claim for deemed custody of the children under s. 102 CYFSA. However, her having the children as a foster parent disentitles her from obtaining a deemed custody order under s. 102.

S. 102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[12] The society has brought a motion for summary judgment to be heard in mid-August 2018, approximately one month from now. The maternal grandmother has filed an Answer and Plan of Care in which she confirms her intention to seek a deemed custody order. The society is also content that this same order be made by way of disposition for these three children[1]. The mother and fathers of these children oppose the motion claims for summary judgment. They also appear to oppose the variation of temporary care and custody sought in the present motion.

[13] Variations of temporary care and custody orders are permitted by s. 94(9) CYFSA.

S. 94(9) The court may at any time vary or terminate an order made under subsection (2).

[14] Subsection 94(2) provides four options for a temporary care and custody order.

S. 94(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child:

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

[15] In this case, the current temporary care and custody placement is under S. 94(2)(d) – with the society. The change sought is to s. 94(2)(c) - with family, or kin. The kin option is always to be ordered in preference to the society, if it is available and appropriate. The CYFSA imposes on the court an obligation to inquire into the kin option.

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.

[16] In the present case, the order sought does not change the actual placement at all. However, what it does is to remove the legal impediment of the maternal grandmother to obtain a deemed custody order. This may or may not be the most viable option for permanency for these children, but should be an option that may be available.

[17] From the vantage point of the children, they will not experience any change, especially any disruptive change. They will be with 'kin' as they are now. The only change will be that the flow of 'foster' family funding will stop. There is no evidence of the impact, if any, that this will have on the children, particularly as there is a chance that the summary judgement motion next month may provide a final resolution. This case is already two years too long in child protection system.

[18] Accordingly, there should be an order placing the children N., P. and M. in the temporary care and custody of their maternal grandmother C.M.

[19] This decision on variation of temporary care and custody does not say, and is not intended to say, anything about the propriety of 'kin-in-care' placements for purposes of funding. There are pro's and con's which are better left for another day.

Claim in Paragraph (3) – Continuation of Access Orders

[20] Claim in Paragraph (3) – This seeks the continuation of the existing temporary orders for access to the children N., P. and M. in favour of the mother and the father, N.F. The motion indicates that these are set out in the order of Dunn J. dated June 27, 2017.

[21] The orders for interim parental access were made, and they have been in place for some time. While a change in placement may necessitate a change in the interim parental access orders, that is not the case here as the children are remaining exactly where they were with the same caregiver. Moreover, no one is seeking a variation of access. At best, it is a claim to confirm the existing access. This is an unnecessary claim as existing access orders continue until they are varied or superseded by later inconsistent orders.

Claim in Paragraph (4) – Summary Judgment Motion

[22] There is also a claim in paragraph (4) of this motion. However, I am not asked to deal with it. It is the claim for summary judgment which is also found at Tab 14, Volume 2. I point this out as this is the summary judgment motion claim that is set for hearing on August 16, 2018, not the claim in paragraph 4 of the present motion at Tab 1, Volume 3.

Released: July 12, 2018

Signed: "Justice John Kukurin"

Footnote

[1] Apparently, the Children's Aid Society of Algoma does not apply for orders for deemed custody (or deemed access) under s. 104 CYFSA (formerly s. 57.1 CFSA). Rather, it encourages those persons wanting such orders to bring motions for party status which, if granted, will enable them to make such claim in their Answer and Plan of Care. This seems to be a policy decision of this society despite the fact that the standard child protection or status review applications clearly indicates that such deemed orders are possible claims by a society. Anecdotally, quite a number of societies do not follow this practice and will make claims for s. 104 CYFSA deemed custody orders in their applications, even in favour of non-parties.