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: 2020-04-23

Court File No.: Halton C 46/19

Between:

Children's Aid Society, Region of Halton Applicant

— AND —

R.O. – Mother K.O. – Father Respondents

Before: Justice Susan Sullivan

Heard: April 16, 2020

Released: April 23, 2020

Counsel

L. Spampinato ...................................................................... Counsel for the Applicant Society

R. Misheal ........................................................................................................... Counsel for R.O.

L. Rathbone ........................................................................................................ Counsel for K.O.

Decision

S. SULLIVAN J.:

Part 1 – General Introduction

[1] This is a motion brought by the Children's Aid Society, Region of Halton ("the Society") in which it requests a variation of the temporary without prejudice access order dated June 13, 2019. Specifically, the Society requests that the order be varied to state that during the COVID-19 pandemic, the Society shall have the discretion to determine the form of access visits between 16-month-old S.O. (born […], 2018) and the parents R.O and K.O. ("the parents"), and to suspend in-person access visits provided that it makes best efforts to arrange alternate forms of access (i.e. telephone, video).

Part 2 – Background Information

[2] This motion is brought within the context of a protection application that was commenced on or around February 4, 2019.

[3] The Society became involved with this family upon learning that two-month-old S.O. had unexplained, multiple bone fractures. On or around January 31, 2019 S.O. was brought to a place of safety and remains in the same foster home he was placed in at that time. There continues to be no explanation for S.O.'s fractures, notwithstanding the completion of investigations by the Society and the police. The parents have arranged for a review of the medical findings regarding S.O.'s injuries by professionals in the United States; this report has not yet been received.

[4] There were no other protection concerns identified by the Society in relation to this family when it initiated its involvement in 2019, and none have arisen since. The parents had no prior involvement with the child welfare system. They do not have criminal records.

[5] S.O. has a sibling, S.J.O. (born […], 2015).

[6] S.J.O. was brought to a place of safety at or around the same time as S.O. Upon placement in the Society's care, he was physically examined by a medical professional and no concerns were identified. There are no specific or direct protection concerns relating to S.J.O.

[7] On February 12, 2019 I made a temporary without prejudice supervision order, on consent, that S.J.O. be placed in the care of the father's sister, H.D., who had moved from the United Kingdom to assist the family. This supervision order was made within the context of a motion brought by the Society.

[8] On April 4, 2019 I made a temporary without prejudice order, on consent, that the parents' access with S.O. may be supervised by H.D., subject to specified conditions. This order was also made within the context of a motion brought by the Society.

[9] On June 13, 2019 I made a temporary without prejudice order, on consent, which varied the February 12, 2019 supervision order to permit H.D.'s husband, K.D. to reside in the home with the parents, H.D., and S.J.O. I also varied, on consent, the April 4, 2019 supervision order to state that supervised access between S.O. and his parents may be supervised by H.D. and K.D. at dates, times and locations agreed to by the Society, the parents, H.D. and/or K.D., subject to terms and conditions. Like the others noted above, this order was made within the context of a motion brought by the Society.

[10] Prior to placing S.J.O. in the care of H.D., and prior to permitting K.D. to reside in the home, I requested and received additional information from them, which was provided orally. As well, child welfare and police record checks were carried out, with negative results, on H.D. and K.D. in the United Kingdom.

[11] The terms of supervision regarding S.J.O.'s placement with H.D. and the terms and conditions regarding H.D.'s and K.D.'s supervision are very strict. For example, terms regarding supervision of access are:

(a) H.D. and/or K.D. shall provide same-room supervision between S.O. and the parents at all times;

(b) H.D. and/or K.D. shall not leave S.O. alone at any time, for any reason;

(c) No other person shall be present in the home during the access visit other than the parents, H.D., K.D, and S.O. However, S.J.O. may be present if both H.D. and K.D. are present during the access visit, and they shall each provide same room supervision for a child;

(d) Society workers shall have access to any part of the home immediately upon request. An access visit may be terminated if such access is denied;

(e) H.D. and K.D. shall immediately advise the Society (including its after-hours service) if they have any concerns whatsoever about anyone's care and/or treatment of S.O.;

(f) Visits may take place in the home or in the community, including walks in the neighbourhood and an Early Years Center, as approved by the Society; and

(g) If the Society consents, H.D. and/or K.D. may supervise the parent(s) during S.O.'s routine medical appointments, as well as his physiotherapy appointments, which are also attended by the foster parent.

[12] Over time, the access schedule shifted in terms of the days of the week on which it took place. In mid-March, 2020 it was as follows:

(a) Every Saturday and Sunday, supervised H.D. and K.D., in the family home, for four (4) hours per visit; and

(b) Every Wednesday, supervised by the Society, at the Society's offices, for two (2) hours.

[13] In mid-March, in response to the COVID-19 pandemic, the Society suspended the parents' in-person access with S.O. Since then and currently, the parents have video access with S.O., twice per day, as arranged between the foster parents and the parents.

Part 3 – Positions

[14] The parents are of the view that the Society is applying its blanket policy regarding access to their family and that it is inappropriate to do so.

[15] The parents concede that the Society has met its onus of establishing that a sufficient change in circumstances has taken place since the June 13, 2019 order was made to justify a change to the existing order. They appreciate that COVID-19 concerns are of grave importance.

[16] The parents accept that their weekday visit at the Society's office cannot continue at this time and they ask for it to be replaced with video access.

[17] However, with respect to the supervised weekend visits, the parents' position is that, based on the evidentiary record, the Society has not established that terminating these visits and replacing them with video access is the appropriate response to the change in circumstances for their family.

[18] The parents submit:

(a) They (and H.D. and K.D.) have a cogent safety plan regarding COVID-19 to which they adhere;

(b) They (and H.D. and K.D.) have a safe plan for access;

(c) They (and H.D. and K.D) are willing to abide by any further terms (to the ones they have presented) that the court may wish to impose;

(d) Video access is a poor replacement for in-person access with a 16-month-old; and

(e) The Society's plan is permanent, for so long as COVID-19 directives remain in place, and currently there is no end in sight.

[19] Specifically, the parents request that their weekend access continue, as scheduled; every Saturday and Sunday, four (4) hours per visit, supervised by H.D. and K.D.

[20] In the affidavit of Society worker Sonia Gomez dated April 7, 2020, she states the Society's general position regarding access involving all children in its care: "The Society is not prepared to commence any in-person access at this time for children in its care, and the Society will continue to follow Public Health directives put in place in this province."

[21] Ms. Gomez elaborates: "The Society has an obligation to comply with the COVID-19 considerations for all children in their care. This means we must limit the children's activities in favour of social distancing and limiting community and/or face-to- face interactions as much as possible. This responsibility extends to all people providing care and/or services to children in care. The Society has a responsibility to comply with COVID-19 considerations for all children in their care, as well as the Foster Parents and any other children residing in those placements."

[22] The Society submits that it has reviewed this family's plan for access, and cannot consent to its implementation because:

(a) Allowing in-person access in this case will place S.O., the foster parents, and the children residing in the home at an increased risk of contracting COVID-19;

(b) The one other foster child residing in S.O's foster home suffered from neglect, which has resulted in physical health issues, including a diagnosis of a failure to thrive. As a result, s/he would be vulnerable to the negative health effects of COVID-19;

(c) The foster home is able to take a third child into its care, and the prospective third child would also be at increased risk of contracting COVID-19;

(d) Society workers are generally only entering homes to deal with emergencies or very high-risk cases. As a result, the Society is not in support of having to send its workers into the home to determine whether adequate safety measures are in place and being followed; and

(e) Given S.O.'s young age, it would be impossible for the family to practice social distancing with S.O. during access.

Part 4 – General Legal Considerations

[23] In this case, the following sub-sections of the Child, Youth and Family Services Act, 2017 S.O. 2017, c. 14, Sched. 1 ("the CYFSA") are applicable:

Access

94(8) An order made under clause (2)(c) or (d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate.

Power to Vary

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

[24] In Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 874 (Ont. C.J.), Justice Sherr set out the test to be applied to requests to vary temporary orders in protection applications. He wrote:

[85] The court will apply the following legal test to change a temporary access order during an adjournment of a protection application:

a) The moving party has the onus of establishing that a sufficient change in circumstances has taken place since the making of the last court order. Whether the change is sufficient to change the order will depend on the circumstances of the case.

b) The court should conduct a contextual analysis when exercising its discretion as to whether it is in a child's best interests to change the access order, and if so, what terms and conditions are appropriate. The purposes in section 1 of the Act should always be at the forefront of the analysis. The suggested non-exhaustive list of factors set out in paragraph 83 above should be considered, where relevant.

[25] At paragraph 83, Justice Sherr stated:

[83] It is suggested that the court consider the following non-exhaustive list of factors, where relevant, in determining whether to change a temporary access order during the adjournment of a protection application:

1. The nature and extent of the variation sought and the proportionality of the requested change to the change in circumstances since the making of the last court order. In particular, the court should examine the extent to which the passage of time has yielded a fuller picture to the court about the child, the parent or any family and community member involved with the family.

2. The degree to which the change in circumstances reduces or increases the risk of harm to the child.

3. The extent to which the proposed change meets the objectives set out in section 1 of the Act and the expanded objectives set out in section 1 of the CYFSA.

4. The best interest factors set out in subsection 37(3) of the Act and the expanded best interest factors set out in subsection 74(3) of the CYFSA.

Part 5 – Analysis

[26] As noted above, the parents concede that the Society has established a change in circumstances since the June 13, 2019 temporary without prejudice order was made. There is no debate that the change is significant. As Justice Pazaratz noted in Ribeiro v. Wright, 2020 ONSC 1829 (Ont. S.C.J.), at paragraph 23, "Judges won't need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families." The momentous nature of COVID-19 is acknowledged by the parents.

[27] Case law has clearly established that the application of a blanket policy of no in-person access is an inappropriate response to COVID-19.

[28] In Ribeiro v. Wright, supra, Justice Pazaratz wrote, at paragraph 10, "A blanket policy that children should never leave their primary residence – even to visit their other parents – is inconsistent with a comprehensive analysis of the best interests of the child."

[29] In Durham Children's Aid Society v. J.Q., 2020 ONSC 1761 (Ont. S.C.J.), Justice Nicholson stated, at paragraph 10, "However, there is no automatic presumptive authority extended to the Society to suspend all in-person access to parents without formulating some alternative measures to preserve the important relationships of children to their birth parents."

[30] In Children's Aid Society of Oxford County v. C.L., 2020 ONCJ 183 (Ont. C.J.), Justice Paull wrote, at paragraph 30, "It will require the Society to undertake its due diligence to review the merits of the plan(s) to see if a less restrictive approach will address both the protection and Covid-19 safety concerns."

[31] In Children's Aid Society of Toronto v. O.O., 2020 ONCJ 179 (Ont. C.J.), Justice Zisman noted, at paragraph 76, that she agrees that the Society cannot base its position for the supervision of in-person contact on a blanket policy. She wrote at paragraph 71, "However, the circumstances in each family is unique and the issue of whether to suspend in-person contact must be viewed in the context of the particular situation of the child and the caregivers before the court."

[32] In Ribeiro v. Wright, supra, Justice Pazaratz pointed out, at paragraphs 17 and 18, that there will be no easy answers. But no matter how difficult the challenge, for the sake of the child, we have to find ways to maintain important parental relationships and above all, we have to find ways to do it safely.

[33] The Society has the onus to establish that the complete suspension of S.O.'s in-person access with his parents, supervised by H.D. and K.D., is a proportionate, and therefore, an appropriate response to COVID-19.

[34] As outlined in Ribeiro v. Wright, supra:

(a) There is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child;

(b) In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing;

(c) In some cases, access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14-day period as a result of recent travel; personal illness; or exposure to illness);

(d) In some cases, a parent's personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child;

(e) In some cases, a parent's lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered; and

(f) There will be zero tolerance for any parent who recklessly exposes a child (or members of the child's household) to any COVID-19 risk.

[35] As this is a child protection proceeding, there is an added layer of complexity, as the Society has a statutory duty and mandate to protect children in its care and to act in their best interests. See: Children's Aid Society of Toronto v. O.O., supra, at para. 78. In these times the Society has to consider the safety of other families, staff, and foster families. See: Durham Children's Aid Society v. J.Q., supra, at para. 10.

[36] As well, the court has an oversight duty to ensure that orders made do not jeopardize the safety and health of children that are before the court. See: Children's Aid Society of Toronto v. O.O., supra, at para. 85.

[37] Based on the evidentiary record before me and taking judicial notice of the fact that at the present time social distancing and COVID-19 awareness and safety precautions are both commonplace and critically necessary to ensure our individual and collective safety (See: Children's Aid Society of Oxford County v. C.L., supra, at para. 23), and for the reasons that follow, I find that the Society has not established that it is appropriate for S.O.'s in-person access, supervised by H.D. and K.D., to be suspended and replaced with video access.

[38] In this case, the parents, H.D., and K.D. have presented a solid COVID-19 plan, which they have been adhering to since around mid-March:

(a) They practice physical distancing;

(b) They wash their hands thoroughly and often with soap and water;

(c) They frequently clean and disinfect the house using household cleaners and Lysol disinfectant wipes;

(d) They have been working from home since March 15, 2020. They are not required to work in the office or in the community;

(e) The father has been designated as the person who leaves the home to buy necessary household items, and he does so on average once a week. He gets groceries at quieter times. He has not been anywhere else in the community;

(f) The mother, H.D., and K.D. have only been in the community on a couple of occasions when it has been absolutely necessary to do so;

(g) When out in the community, they maintain a two (2) metre distance from other people;

(h) As soon as anyone comes home from being in the community, that person goes straight to the shower without interacting with anyone else in the home, and their clothes is washed immediately; and

(i) They limit their activities and have kept within their home and their backyard. The farthest they have gone was to the end of the street and back, for a bike ride, with S.J.O.

[39] As well, nobody in the parents' home has exhibited COVID-19 like symptoms.

[40] The Society does not challenge the existence and appropriateness of the family's COVID-19 safety plan and acknowledge that likely, the family is complying with it.

[41] In this case, the family has provided a reasonable plan for access, which can be expanded upon, to optimally ensure that the risk associated with COVID-19 is well-managed. They propose that:

(a) H.D. or K.D. will pick up and drop off S.O. at the foster home wearing a mask and gloves, if necessary;

(b) The parents will ensure that the house is disinfected before and after each visit;

(c) The parents, H.D., and K.D. will continue to practice social distancing;

(d) The parents, H.D., and K.D. will continue to work from home;

(e) S.O.'s access visits will occur in the home, the back yard, or the driveway of the family home;

(f) In the event of any change, they will notify the Society forthwith and engage in discussions regarding access; and

(g) The parents and kin will follow all new directions from the government and public health.

[42] Information regarding the conduct of the parents, H.D., and K.D. over the past year has also assisted me as I consider this motion.

[43] H.D. and K.D. were given the enormous responsibility to provide 24/7 supervision of S.J.O.'s interactions with his parents and to also supervise S.O.'s time with them. There is no evidence whatsoever that they have been anything but compliant with the existing orders. The Society's trust in H.D. and K.D. is confirmed by the fact that a Society worker has only attended the home once during visits supervised by H.D. and K.D. to verify compliance with rather strict court ordered terms and conditions.

[44] Similarly, I have not been provided with evidence that suggests H.D. and K.D. have been uncooperative with the Society, that they lack insight into the protection concerns, or that they have demonstrated poor judgment in any way.

[45] As noted above, I have spoken with and obtained further information from H.D. and K.D. As a result of doing so, my view of them is not limited to simply that which I have read. I was impressed with their commitment to the children, their understanding of the protection concerns, and their appreciation of the significance of the responsibilities the court was considering assigning to them.

[46] Based on the foregoing, I have no reason to doubt that if the existing order is varied to provide specific terms related to access and COVID-19 issues, H.D. and K.D. will comply with those terms.

[47] With regards to the parents, there is no evidence that, over the extended period of time the Society has been involved with them, that they have breached the existing orders or that they have been uncooperative with the workers. I have not been provided with evidence which suggests that subsequent to the initiation of Society's involvement, the parents have exhibited poor judgment or an inability to act in a child-focussed manner. There have been no findings of fact in relation to S.O.'s fractures on which I can rely when considering the narrow issue of future compliance with a court order. Based on the foregoing, I have no reason to question the parents' future compliance with any terms that I may order.

[48] As well, based on the unchallenged affidavit evidence of the parents, H.D., and K.D., which I have considered in the context of their behavior to date, I am further satisfied that they understand the importance of COVID-19 awareness and compliance with directives related thereto.

[49] The insight and judgement exhibited by the parents, H.D., and K.D. is markedly different than that shown by the parents and their family in Children's Aid Society of Toronto v. O.O., supra, which in many other ways is factually similar to this case, and in which in-person access was not ordered.

[50] I have also considered that in this case, the Society's requested change to access is significant.

[51] For almost a year, access has been three (3) times a week, for a total of ten (10) hours, with eight (8) of those hours being supervised by H.D. and K.D, in the family home or in the community. The location, duration, and frequency of this access was agreed to by the Society, the parents, and H.D. and/or K.D., as per the June 13, 2019 order, hence it reflects an arrangement all parties deemed to be in S.O.'s best interests. There is no evidence that access has been missed, or that there have been issues with respect to the parents' ability and willingness to appropriately interact physically and emotionally with the child. Therefore, frequent and positive access, most of which has occurred in natural settings, has occurred for a meaningful period of time.

[52] The consequences of the proposed changes to S.O.'s access are heightened by S.O.'s age. He is 16 months old. Video contact is a poor substitute for in-person access visits for younger children. As well, we do not know how long the COVID-19 crisis is going to last. If S.O.'s access with his parents is relegated to being by video only, for an indefinite period of time, it is very likely that the maintenance and continued development of the parent/child bond will be negatively impacted. See: Children's Aid Society of Toronto v. S.S. and A.I., 2020 ONCJ 170 (Ont. C.J.), at para. 157.

[53] I have also factored into my analysis that there is a positive obligation on a Society to ensure that a child has reasonable and meaningful access to a parent, especially where there has not been a disposition or finding in the case. See: Simcoe Muskoka Child, Youth and Family Services v. C.M., 2020 ONSC 2109 (Ont. S.C.J), at para. 42.

[54] I have considered but am not persuaded by the Society that if I were to allow S.O. to have in-person access with his parents, those living in the home would be at increased risk of contracting COVID-19.

[55] I have been provided with very little information regarding the foster family. For example, I do not know whether any family members are older in age, have underlying medical conditions, or a compromised immune system. I have no basis to conclude anything other than the foster family is complying with COVID-19 protocols, that family members are asymptomatic, and that no family members are particularly vulnerable to the effects of COVID-19.

[56] With respect to the other foster child in the home, the Society states that s/he is particularly vulnerable to the negative health effects of COVID-19, due to his/her unspecified physical health issues, resulting from neglect. S/he has been diagnosed with failure to thrive. However, there is no medical opinion from any doctor confirming that s/he requires more intensive distancing efforts to keep him/her safe, and such evidence would be required to support this conclusion. See: Lyons v. Lawlor, 2020 ONCJ 184 (Ont. C.J.).

[57] This is in contrast to the situation in Children's Aid Society of Toronto v. O.O., supra, where the Society provided medical evidence that the subject child was definitely at higher risk of getting sicker compared to other children if he was exposed to illnesses, including COVID-19.

[58] As an aside, with respect to the second foster child, I am troubled by the Society's decision to place him/her with this particular foster family the last week of March when the issue of S.O.'s continued access with his parents was not resolved. On March 20, 2020 Society counsel provided parents' counsel with notice via email of the Society's intention to suspend S.O.'s access with his parents. In that notice, the parents were given to March 24, 2020 to respond, failing which, the Society would bring a motion to request a variation of the existing order. By way of correspondence from parents' counsel dated March 31, 2020 (sent 4:30 p.m.) the Society was advised that the parents were not consenting to the suspension of their in-person visits. If the evidentiary issue regarding this aspect of the Society's submissions was absent (i.e. they provided medical evidence about this child being vulnerable to the negative effects of COVID-19), I anticipate that the agency would still have had difficulties with this argument; one cannot create a situation and then expect to successfully argue its inappropriateness.

[59] I have given no weight to the Society's position that allowing S.O. to have in-person contact would increase the risk to a prospective foster child who may live in the home of contracting COVID-19. This calls for unwarranted speculation.

[60] I have given little weight to the Society's proposal that Society workers are generally only entering homes to deal with emergencies or high-risk cases, therefore the Society is not in support of having to send its workers into the home to determine whether adequate safety measures are in place and being followed. Currently, the Society does not have concerns regarding the family's compliance with COVID-19 protocols. The Society's level of concern regarding the family's ability to comply with court orders is, at best, very minimal; since H.D. and K.D. have been supervising S.O.'s access, a worker has gone to the home once to check if they were doing what they were ordered to do. As well, there are options to the worker's in-person attendance. For example, it could be ordered that the family allow the worker to view their home via video conference.

[61] Based on the evidentiary record, in this case, there are two families that are acting properly and responsibly. There is no evidence which raises a concern about the abilities of or approach taken by persons in both households to address COVID-19 concerns. There is no evidence that persons in either home are particularly susceptible to contracting COVID-19. As such, I am not convinced that permitting in-person contact between S.O. and his parents creates an unacceptable risk of COVID-19 infection to those in both homes, and the community in general. Also, optimal safety planning, which will be addressed in my order, can assist in maintaining this status.

[62] I inquired of the Society whether an order for in-person access would result in a change in placement for S.O., specifically whether the foster parents would require that he be moved. I was told that such an order would not impact his placement. This weighed heavily in my decision as I would have been hesitant to make an order that undermined S.O.'s continuity of care, particularly given his young age. However, I note that if it comes to be that S.O. has to be moved from his current placement, it appears that there may be a potential option for him to be placed with H.D. and K.D., if this is proposed.

[63] Last, a helpful feature of this case is that the foster parents and the biological parents and H.D. seem to have a positive working relationship. The parents have attended S.O.'s regular medical appointments with the foster mother; H.D. has been present at the appointments as well. The foster parents and the biological parents arrange the twice daily video access that is currently occurring. There have been no reported concerns regarding these interactions. Subsequent to the emergence of COVID-19 concerns, and prior to the Society's decision to terminate all in-person access for children in its care, the foster mother offered to drive S.O. to the parents' home. This bodes well for successful implementation of in-person access, as the foster parents may be involved in the access exchanges and there may have to be a direct sharing of information between both homes.

[64] In conclusion, upon careful consideration of the totality of the circumstances, I find that that a variation of S.O.'s in-person access, which is supervised by H.D. and K.D, to video access, for an indefinite period of time, is not a proportionate response to the COVID-19 issues that are present in this case. It is vitally important that S.O. has the opportunity to maintain and grow his relationship with his parents and that he has the chance to develop a secure place as a member of his family, particularly given his age and emotional level of development. Likewise, it is important that S.O.'s emotional ties with his sibling, H.D., and K.D. are maintained; this is not likely to happen via video access with a child of this age. Given that in-person access can occur in a manner that does not create an unacceptable risk of COVID-19 infection for all involved, and the community at large, it is appropriate that it continue.

Part 6 – Order

For all the foregoing reasons the June 13, 2019 temporary without prejudice access order shall be varied to read as follows:

1. S.O. shall have video access with his parents, R.O. and K.O.; his sibling, S.J.O.; his paternal aunt, H.D.; and his paternal uncle, K.D. as is arranged between the foster parents and the biological parents.

2. S.O. shall also have in-person access with his parents and S.J.O. every Saturday from 9:00 a.m. to 1:00 p.m. and every Sunday from 10:00 a.m. to 2:00 p.m., or during any other four-hour period, twice per week, that is agreed to by the parties.

3. In-person access shall be supervised by H.D. only. K.D. shall not be present for the visits. K.D. shall be the adult in the household who leaves the home to purchase groceries and other necessaries for the family.

4. In-person access shall occur only in the parents' home and in the main living area.

5. The main living area shall be sanitized prior to the child's arrival.

6. H.D. shall provide same room supervision between S.O., the parents, and S.J.O. at all times.

7. H.D. shall not leave S.O. alone at any time for any reason.

8. No other person may be present in the home during in-person access visits, except that K.D. may be in the home, but not in the main living area where the visit is taking place.

9. H.D. shall immediately report to the Society (including its after hours service) if she has any concerns whatsoever about anyone's treatment and/or care of S.O.

10. During in-person access, there shall always be an operable computer and telephone available for the parents' and H.D.'s use. A Society worker may, at any time during in-person access visits, and for any duration of her choice, observe the parents' home and/or the visit, remotely or in person.

11. H.D. shall be the only person who transports the child to and from in-person access, unless the parties agree otherwise.

12. H.D. shall ensure that her car is sanitized prior to transporting the child.

13. Exchanges shall not be carried out by public transportation.

14. Exchanges shall occur at a location mutually agreed to by the Society and H.D.

15. During exchanges, H.D. shall wear a mask and gloves.

16. The parents, H.D., and K.D. shall meticulously adhere to government and public health issued COVID-19 safety measures at all times.

17. The parents, H.D., and K.D. shall keep themselves current with respect to COVID-19 issues and protocols.

18. The parents, H.D., and K.D. shall immediately report to the Society if they suspect that they have come into contact with COVID-19; if they experience any COVID-19 symptoms or otherwise believe they have contracted COVID-19; if they become subject to some specific personal restriction; or if some personal risk factors emerge. If any of these scenarios arise, S.O.'s in-person access shall be immediately suspended.

19. The parents, H.D., and K.D. shall advise the Society in advance if there is any change to their COVID-19 safety plan, such as if they return to work.

20. The Society shall be entitled to suspend S.O.'s in-person access, if there is a significant change in government or public health directives that warrants it in the child's best interests to do so.

21. If the parents' access is suspended and the parents do not agree with the suspension, the Society shall bring a motion, before me, within in five (5) business days of the parents being provided with notice of the suspension and request a variation of this order.

22. As the parents have advised they seek costs:

(a) The requesting party shall serve and file their bill of costs, written cost submissions (not to exceed 5 pages, 12 pt font, normal margins), any offers to settle made, and any legal authorities to be relied on (no more than 3 in total) by 4:00 PM on May 4, 2020;

(b) The responding party shall serve and file their written responding submissions (not to exceed 5 pages, 12 pt font, normal margins), any offers to settle made, and any legal authorities to be relied on (no more than 3 in total) by 4:00 PM on May 15, 2020; and

(c) Any reply shall be in writing (not to exceed 3 pages, 12 pt font, normal margins) and shall be served and filed by 4:00 p.m. on May 22, 2020.

23. When ordinary court services resume following the COVID-19 pandemic, the parties shall ensure that their motion materials are filed in the continuing record.