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: 2020-04-15

Court File No.: Toronto CFO-18-15924

Between:

Native Child and Family Services Applicant

— AND —

S.D. and B.K. Respondent Parents

Before: Justice Sheilagh O'Connell

Heard on: April 14, 2020

Endorsement released on: April 15, 2020

Counsel and Parties

Adit Sommer-Waisglass — counsel for the applicant society

Respondent mother S.D. — on her own behalf

No appearance by or on behalf — of Respondent father

Endorsement

O'CONNELL J.:

Background

[1] This is the second appearance on this protection application brought by Native Child and Family Services (the "society") regarding 'Baby Girl' D.-K., born […], 2020, now named M.-L. C. D.-K., as advised by the mother.

[2] On […], 2020, the child was removed from the mother's care following her birth at St. Michael's Hospital and brought to a place of safety.

[3] A social worker at St. Michael's Hospital contacted the society following the child's birth due to concerns that the child may be at risk of prenatal exposure to drugs, namely Fentanyl. The child was born at thirty-four weeks gestation. She was on a breathing apparatus (CPAP) and was experiencing symptoms of drug withdrawal. The mother admitted to using fentanyl during the pregnancy.

[4] The first hearing in this matter was on April 3, 2020, five days after the apprehension, in accordance with the legislative requirements under the Child, Youth and Family Services Act.

COVID-19 Pandemic and Court Procedures

[5] Due to the COVID-19 global crisis, the Ontario Court of Justice issued a Practice Directive [1] (updated March 28, 2020) that all family court matters scheduled up to May 29, 2020 shall be adjourned for eight to twelve weeks, with exceptions for certain urgent matters as specified in the Court's Practice Directive.

[6] In order to protect the health and safety of all court users and to help contain the spread of COVID-19, members of the legal profession and members of the public are asked not to attend courthouses in person at this time unless a judge orders otherwise or if a party is unable to email family court documents relating to an urgent family matter.

[7] The Practice Directive also provides that under no circumstances should members of the legal profession or the public come into a courthouse if they have been advised not to by public health officials, their doctor or the Ontario Ministry of Health (MOH) website.

[8] The Ontario Court of Justice Directive provides that urgent matters will proceed on a prioritized basis. These matters include, but are not limited to, the following:

1. Child, Youth and Family Services Act: place of safety hearings (s. 90); temporary care and custody hearings (s. 94), restraining orders (s. 137), status review hearings (s. 113), and secure treatment orders (s. 161);

2. Domestic matters: urgent custody and access motions; motions for restraining orders; Hague applications and non-Hague abduction cases; and

3. Family Responsibility and Support Arrears Enforcement Act: refraining motions (s. 35).

[9] This matter is clearly urgent and proceeded on a prioritized basis.

[10] Counsel for the society and the child protection worker participated in the hearing by telephone conference in accordance with the Court's Covid-19 Protocol.

First Hearing – April 3, 2020

[11] Unfortunately, the parents did not participate in the first hearing. The parents were apparently residing at Homes First Shelter in Toronto, although this was not certain. Despite efforts, the society was not able to serve them with notice of the hearing or to contact them by telephone.

[12] Based on the evidence filed electronically by the Society, and for further considerations arising as a result of the Covid-19 health crisis, the Court made the following temporary without prejudice order:

1. The child, 'Baby Girl D.-K.', born […], 2020, shall be placed in the care and custody of Native Child and Family Services (NCFS) pending further court order.

2. The parents shall have access at the discretion of NCFS as to form, frequency, location, duration, and level of supervision, including the ability to suspend face to face access for the safety and health of the child as the result of the Covid-19 directive from all levels of government and public health departments.

3. The society shall serve this endorsement along with the child protection application and all supporting materials as soon as possible on the parents by delivering or mailing a copy of this Endorsement, the child protection application and supporting documents to the Homes First Shelter where the parents may be residing.

4. The parents may also participate by telephone conference call at the next hearing in accordance with the Covid-19 Directive and the conference dial-in information shall be provided.

5. The temporary care and custody hearing is adjourned to Tuesday, April 14, 2020 at 10:00 AM.

6. Duty counsel can also be arranged to assist the parents, in accordance with the Legal Aid Ontario Covid Protocol.

7. In the circumstances of the Covid-19 emergency, this endorsement is deemed to be an order of the court that is operative and enforceable without any need for a signed, entered, formal, typed order.

Second Hearing – April 14, 2020

[13] This matter returned before me yesterday. It was confirmed that the parents are residing at the Homes First Shelter. However, they had not yet been served with the child protection application. Due to a Covid-19 outbreak near the shelter, no one was permitted to enter or leave the shelter and the society was not able to confirm that the parents were residing there.

[14] Further, the parents do not have a telephone or a computer. Fortunately, with the help of Ms Sara Mottola, a case manager at Homes First, the mother contacted the society. She was also able to participate in this hearing from the shelter by using the case manager's telephone.

[15] Although not ideal, as a result of the extraordinary circumstances created by the pandemic, the court permitted the child protection hearing to proceed by telephone conference.

[16] The society's legal counsel, the child protection worker, the mother, the mother's case manager at Homes First Shelter, and the mother's addiction counsellor at Jean Tweed all participated over the designated telephone conference line in the courtroom. The hearing was recorded by a court reporter.

[17] Ms Mottola advised the court that she would attempt to transport the mother to the society's office to be personally served with the child protection application. The mother also advised that she would ensure that the father receive the court documents.

[18] However, in the event that this was not possible, counsel for the society advised that the court documents will be mailed to the shelter. The court package to be served will also include information for the parents regarding how to apply for legal aid and to speak to duty counsel.

The Mother's Plan

[19] The mother is seeking the return of the child to her care. Her plan is to return to Newfoundland and to live with the maternal grandmother, while the mother gets better and addresses her addiction and mental health issues.

[20] The mother is seeking an adjournment to retain counsel and to prepare her answer and plan of care for the child.

[21] Ms Stephanie Archambault, a counsellor with Jean Tweed, is assisting the mother in Toronto. Currently Jean Tweed has closed its residential treatment program due to the Covid-19 crisis. Ms Archambault is providing some individual counseling for the mother, presumably by telephone or video.

[22] The Society is exploring the mother's plan. Ms Scott, the child protection worker, has been in touch with the maternal grandmother in Newfoundland. If approved, the society would support the baby being placed with the maternal grandmother. An assessment of the grandmother will need to be conducted. This may likely be delayed as a result of Covid-19.

Access

[23] The baby is being discharged from the hospital today and will be placed in foster care. The mother would like to see her child.

[24] Currently, the society has suspended face to face access between parents and children for health and safety reasons, as the result of the Covid-19 directive from all levels of government and public health departments.

[25] The society is prepared to offer video access only at this time. The mother expressed disappointment and would like face to face contact with her child. The case manager at the shelter advised that she will be able to facilitate video access for the mother.

[26] The mother may wish to explore other options for access, if possible, with her lawyer once she is able to retain counsel. The court will hear any submissions regarding this issue upon the return date.

[27] At this time the temporary without prejudice order regarding access will continue pending further court order.

Conclusion and Order

[28] On consent, the court makes the following order:

1. The protection application and motion are adjourned to May 4, 2020 at 10:00 a.m. so that the mother can be served, retain counsel, and to prepare her answer and plan of care. The society also will need time to further explore the mother's plan.

2. The temporary without prejudice order dated April 3, 2020 shall continue pending further court order.

3. A copy of this endorsement shall be forwarded to Legal Aid Ontario by the society to assist the parents in retaining lawyer or in speaking to duty counsel.

4. Pending further order, the hearing will be conducted by telephone conference in accordance with the Covid-19 court directive, with the same telephone number and coordinates used previously.

5. Duty counsel will be provided with the conference call coordinates for the next hearing date so that they can participate, if necessary, in accordance with the Legal Aid Ontario protocol.

Reflections on Pandemic Procedures

[29] Ordinarily, the court would have proceeded with this child protection hearing with all of the parties and support persons present in court. Many parents in child protection cases, like the parents in this case, do not have not have access to a telephone or computer, even more so now that public libraries and drop-in centres are closed.

[30] Unrepresented parents in urgent child protection proceedings are often served in court personally on the first appearance. Parents also have the opportunity to speak to duty counsel at court to receive summary legal advice and to get help in finding a lawyer through Legal Aid Ontario.

[31] However, these are not ordinary times. As a result of the COVID-19 pandemic, the Ontario Court of Justice has significantly restricted the public's physical access to the courthouse, making it more difficult for some parents to participate in these hearings.

[32] I thank Ms Sarah Mottola, the case manager at Homes First Shelter and Ms Stephanie Archambault, the counsellor at Jean Tweed, for making it possible for the mother to participate in this hearing.

Released: April 15, 2020

Signed: Justice Sheilagh O'Connell

[1] See COVID-19 Pandemic – Scheduling of Family Matters in the Ontario Court of Justice.