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: January 14, 2019

Court File No.: Toronto CFO-12-11058

Between:

T.V. Applicant

— AND —

Children's Aid Society of Toronto Respondent

Before: Justice Maria N. Sirivar

Heard: November 29, 2018

Reasons for Judgment released: January 14, 2019

Counsel

T.V. — in person

Christine Doucet — counsel for the respondent, Children's Aid Society of Toronto

Fatima Khalid — counsel for the Office of the Children's Lawyer, legal representative for the child

Decision

SIRIVAR J.:

BACKGROUND

[1] This is the applicant mother's motion for increased and unsupervised access to her son L., born […], 2001, who was made a Crown Ward (now called extended society care) by order of Justice Katarynych dated April 22, 2015 (the "Order").

[2] This motion arises out of the mother's Application for access that was issued in error as a Status Review Application.

[3] She seeks an interim variation of the Order pending final resolution of the Application.

[4] The mother currently exercises supervised access twice per month for one (1) to three (3) hours, as per L.'s wishes. It is supervised at Hatts Off offices by L.'s one-to-one worker or his foster parent.

[5] In Justice Katarynych's Reasons for Judgement dated May 1, 2015, she found the following regarding L.'s needs:

• "he has an acquired brain injury as a result of extensive brain surgery undertaken when he was seven (7) years old;
• he is both physically and cognitively impaired;
• he has severe attention deficit and is very impulsive which severely impacts his ability to manage responsible interactions with others;
• his caregivers must be equipped to manage his behavior because he creates safety concerns for both himself and others; and
• he is at risk of harm in the broader community because his aggression towards others is likely to attract aggression towards him."

[6] With respect to the mother's parenting, Her Honour found:

"…the mother's understanding of his behavioral deficits is poor. Her ability to help her son remedy those behavioral deficits is even poorer."

[7] Justice Katarynych also found that the mother lacked sufficient insight into L.'s behavioural needs to enable her to recognize the risks to him and to others when he acted out his frustrations and aggressions.

[8] Specifically on the issue of the mother's access, Her Honour wrote:

"To give mother an opportunity to show that capability, and as part of the court's duty to her as an unrepresented litigant to help her bring out the fullness of her case for a return of the child to her parenting, L. was given a measure of unsupervised access with her in her home over the Christmas season, on specified conditions for both mother and the society."

[9] The mother did not, however, abide the court's conditions and she asked L. to keep secrets about their unsupervised time together. The mother also failed to work with L.'s caregivers and the Society in their efforts to help L. gain the skills needed to manage himself in the community.

[10] As a result, the court concluded:

"Until the mother displays the ability to "join" in those endeavours, and assures her son that he does not have to keep their interactions "top secret", her access needs to be supervised." [Emphasis added]

ISSUE

[11] Should the Order placing the child in the extended care of the Society with access to the mother be varied on an interim basis to allow the mother to have more time with the child and to have the access unsupervised, pending a final resolution of the Application?

LEGAL PRINCIPLES

[12] The court in Children's Aid Society of Algoma v. C.P. set out the following principles to be applied when considering the variation of access orders pursuant to s. 58(1) of the Child and Family Services Act ("CFSA"):

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

(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.

(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).

[13] Although section 58(1) of the CFSA has been replaced by section 104(1) of the Child, Youth and Family Services Act ("CYFSA"), the content of the provision has not changed and the above principles are still applicable under the new legislation. The relevant sections read as follows:

"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.

When court may order access to child in extended society care

(5) 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.

Additional considerations for best interests test

(6) 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 person 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."

[14] In addition to demonstrating that there has been a change in circumstance, the analysis also requires a comparison of the circumstances related to best interest at the time the Order was made and the current circumstances of the child before the court.

PARTIES' POSITIONS

Applicant Mother

[15] In her affidavit sworn May 22, 2018, the mother deposes that L. requires "a continuation of physiotherapy for the right arm and leg" and that he agrees to engage in rehabilitation with her.

[16] She complains that the foster parents do not want to engage in the rehabilitation and that as a result, L. "lost the motor and propulsion function of the right hand".

[17] The mother proposes what she describes as a "complete rehabilitation program" that was prescribed by a doctor in order to restore the motor functions of the right arm and leg.

[18] The mother further complains that L. has "global concern of language issues" which she attributes to the Society not allowing her to speak her native Russian with L.

[19] In argument, the mother asked the court to consider ordering both home visits and expanded access for rehabilitation purposes. She argued that these changes to access are in L.'s best interest and are consistent with his wishes.

[20] She further submitted that L. should be allowed to use electronic devices such as an iPhone and an iPad to help motivate him.

[21] The mother advised the court that she successfully completed a course on Attention Deficit Hyperactivity Disorder ("ADHD") and that she is a member of an organization for parents with children who have ADHD and Autism. She explains that she took Justice Katarynych's comments in her Reasons for Judgment to heart and has been working on gaining more insight.

The Children's Aid Society (the "Society")

[22] The Society opposes the mother's motion and takes the position that the mother has failed to demonstrate that the changes to access she proposes, rather than the access provisions in the Order, are in L.'s best interest.

[23] The Society submits that there has been no change in circumstances and that the mother continues to have little to no insight into L.'s needs. L. has a rehabilitation program in place. The mother's proposed plan is very vague and has only been described as involving a pool, electronic devices and a gym. The Society says L. does not want to participate in rehabilitation with his mother. The Society submits that this shows a continuing lack of insight on the mother's part.

[24] The Society denies that L. and his mother were prohibited from speaking Russian. Rather, it is L. who does not wish to speak Russian to his mother.

[25] The Society reminds the court that unsupervised access was attempted and was not successful. According to the Society, L. continues to be at risk of suffering harm in unsupervised access because of the mother's lack of insight into his needs as well as her inability to meet his needs.

[26] According to the Society, the access provisions in the Order have been implemented by the Society in a flexible manner and access is directed by L.'s wishes.

[27] The Society acknowledges that the relationship between L. and his mother is beneficial and meaningful and confirms that adoption is not relevant in this case.

Office of the Children's Lawyer ("OCL")

[28] According to the OCL, L. enjoys the time he spends with his mother and would like it to continue to be supervised. He does not want to combine rehabilitation with his time with his mother. He feels his needs in that regard are being met and does not want more rehabilitation.

[29] L. has expressed a desire to have access occur in different locations such as going to a restaurant for lunch or dinner, with supervision. He finds that the current visits can be boring. L. does not want more access time. He would also like to be able to refuse access sometimes.

CONCLUSION

[30] I find that the mother has not met her burden to establish that there has been a change in circumstances that makes the variation in access she seeks in L.'s best interest and that renders the access provisions of the Order no longer in his best interest for the reasons that follow.

[31] The mother said that she took Justice Katarynych's comments to heart and that she worked to gain insight. She is commended for the steps she had taken. Those efforts, however, have not resulted in the improvements required of her to render limited supervised access no longer in L.'s best interest.

[32] Justice Katarynych found that the mother had a profound lack of insight into L.'s behavioural needs which made him a danger to himself and others.

[33] L. sustained an acquired brain injury which left him both physically and mentally impaired. The mother, at the time of the Order, focused only on L.'s physical impairments.

[34] Today, she continues to be focused on his physical impairment and misunderstands or dismisses their causes and the treatment he receives. There is no evidence to support her contention that the limitations in his right arm and leg are caused by or failed to improve because of any action or inaction on the part of the foster parents.

[35] As was her tendency at the time of trial, rather than working with the Society and L.'s caregivers, she blames them for his difficulties and seeks to replace his treatment program with her own.

[36] Apart from stating that she has taken a course and joined a group for parents, there is no evidence regarding what she has learned such as the specific insight she has gained about L.'s needs and how it will help her meet his behavioural needs.

[37] L., who is now 17 years of age, struggles with impulsivity and regulating his frustrations which results in him being aggressive towards others. The mother has not provided any evidence regarding newly acquired insight and/or skills that she will employ to manage his behaviour in an unsupervised setting. Similarly, there is no evidence that she recognizes the risk L. poses to himself and others when he acts out his frustrations and aggressions.

[38] The mother also blames the Society for what she describes as L.'s "global language issues". She argues that they are caused by or contributed to by the Society not permitting her and her son to speak Russian to each other.

[39] She provided no evidence of the alleged prohibition and I accept the Society evidence that none exists.

[40] The mother is either unaware of or dismissive of her now 17 year old son's views as they relate to spending more time, doing rehabilitation and speaking Russian.

[41] The combination of her continuing inability to work with L.'s caregivers and her lack of insight into his needs makes clear that unsupervised access would put L. and others at risk of harm.

[42] The circumstances at the time the Order was made are the same as they are now and the existing order remains in L.'s best interest.

[43] The mother's motion is dismissed.

Released: January 14, 2019

Signed: Justice Maria N. Sirivar