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

Date: 2020-06-04

Court File No.: Woodstock C104/19

Ontario Court of Justice

Parties

Between:

Children's Aid Society of Oxford County

Applicant

— AND —

C.F.S. (formerly C.L.)

C.S.

Respondents

Reasons for Judgment on Motion

June 4, 2020

PAULL J.:

Background

[1] Before the court is a motion brought by C.F.S. (formerly C.L.) for the return of her son N.S., born […], 2019 to the parent's care or a return to his paternal grandparents.

[2] The motion was brought in response to the Children's Aid Society's ("Society") temporary suspension of all supervised access and parenting support programs as a result of Covid-19.

[3] Pursuant to the Covid-19 protocol, C.F.S.'s motion was reviewed to determine if prima facie urgency existed. In the written Reasons dated April 14, 2020 (Children's Aid Society of Oxford County v. C.L., 2020 ONCJ 183) it was determined that the suspension of all face-to-face access due to the pandemic may create a situation of urgency supporting a motion. However, C.F.S. provided virtually no particulars of her proposed plan(s), and it was unclear what relief she was seeking. In the Reasons of April 14, 2020 C.F.S.'s claim for the return of the child to both parents' care was dismissed as lacking urgency for reasons as outlined therein.

[4] However, the issues of a plan which would have her and the child once again reside with the paternal grandparents, or whether her access could take place there were ordered to proceed. C.F.S. was directed to provide a detailed Plan of Care with respect to these two issues and to outline evidence of her Covid-19 awareness and the precautions she proposes. The Society was to provide responding materials to permit the Court to review the merits of the plan(s) to determine if a less restrictive approach would address the protection and Covid-19 concerns.

[5] These Reasons are in addition to the Reasons dated April 14, 2020.

[6] I have considered the affidavits of C.F.S. dated March 27, April 27, and May 28, 2020, and the affidavit of the Society worker dated May 13, 2020.

Evidence

[7] In spite of the two issues ordered to proceed and the Court's directions in the Reasons dated April 14, 2020, in the affidavit C.F.S. filed dated April 27, 2020 she once again outlined her relief as only seeking a return of the child to the care of both parents. As previously indicated this portion of the motion had already been dismissed. The remainder of her affidavit was largely nonresponsive to the directions given.

[8] She offered no particulars or reference to the grandparents except to state that, "I don't want to go back to live with my in-laws, but I will do anything for [N.S.]…".

[9] She also offered no particulars with respect to what Covid-19 safety precautions she had in place and was proposing along with the grandparents, other than to say, "We have taken every step to ensure his safety now with Covid-19 and forever will protect him".

[10] This was the extent of the relevant evidence C.F.S. offered at that time in response to the Court's directions.

[11] The responding affidavit of the worker Tracy Harnish outlined that she followed up on May 6, 2020 with the paternal grandmother who indicated that she was not aware that C.F.S. had proposed to move back into their home, and further advised their home did not have the space to support C.F.S. and child living there in any event. The grandparents currently have another grandchild in their care and facilitate access to his/her mother.

[12] In discussions with the worker the paternal grandmother did agree to facilitate access for both parents in their home and a willingness to supervise that access if required. She also outlined their regime for maintaining social distancing.

[13] Ms. Harnish outlined that the foster home where N.S. resides also maintains appropriate Covid-19 safety precautions, and that no one in that home is medically fragile.

[14] However, the Society does not support the access being supervised at the grandparents' home at this time due to a number of concerns including a lack of clear Covid-19 awareness and safety precautions by the parents and related to the other individuals who reside in their home, and the resultant risks to the child, the foster family, and the Society worker's. It was also concerned about a history of a lack of follow-through and cooperation by the parents as outlined in previous Reasons for Judgment in this matter.

[15] The worker did outline that C.F.S. has faithfully attended access throughout this matter on 113 occasions for a total of 472 hours, and that her access has gone well. Unfortunately, the respondent father, C.S. has only attended a total of four face-to-face visits with his son since September 27, 2019 when the child was removed to a place of safety. The last visit being on February 19, 2020 at the EarlyOn Centre program. That access was suspended on March 5, 2020 due to his irregular attendance. He was permitted to continue to attend access five days a week through the Society's supervised access program but did not do so prior to the suspension of programming as a result of the pandemic.

[16] Since the suspension of the access programs the parents have been offered regular "Zoom" video chats with N.S.. C.F.S. utilizes these opportunities while C.S.'s participation is limited to brief and occasional interactions with N.S.. As the court observed in the Reasons dated April 14, 2020, given the young age of N.S. this method of contact is likely to be of little or no benefit to him, although it may be necessary in the short term.

[17] C.F.S. did not provide any specifics until filing her reply affidavit dated May 28, 2020. She provided details of the safety regime in her home to address Covid-19 and their efforts to maintain social distancing. However, her reply affidavit once again focused solely on seeking the return of the child to both parents and provided no other particulars of a plan to return to live with the grandparents or to exercise her access there.

Analysis

[18] I accept that urgency has been established in this case as a result of the Society suspending all face-to-face contact between the child and his mother because of Covid-19. I also accept that the impact of Covid-19 represents a material change in circumstances since the making of the previous access order which has justified the Society's temporary suspension of it supervised access programs.

[19] As I outlined in the Reasons of April 14, 2020, the issue is whether the best interests of this child and the circumstances of this particular family support a less restrictive alternative to no face-to-face contact at this time.

[20] In spite of C.F.S.'s notice of motion seeking a return of N.S. to his paternal grandparents, where she lived for a period of time with the child, she appears to not support this plan based on her evidence. She has not provided a detailed Plan of Care as she was directed to. Neither does it seem that she made the grandparents aware that she had brought a motion seeking that relief.

[21] C.F.S. did not dispute the worker's evidence that the grandmother was unaware that she had brought a motion seeking to have N.S. reside there, or that the grandmother indicated they did not have the space for her and the child to reside there in any event.

[22] On the basis of these considerations the claim in the motion dealing with C.F.S. and the child residing with the grandparents is dismissed.

[23] The only remaining issue is whether C.F.S.'s access should take place at the grandparents' home. The grandmother has agreed to facilitate and supervise access, and the worker outlined appropriate Covid-19 safety precautions in her home. They also have another of their grandchildren in their care and facilitate access to that child's mother. The Society has also indicated that the foster home maintains appropriate Covid-19 safety precautions and that no one in that home is medically fragile.

[24] However, for the reasons which follow I am not convinced on the evidence filed that this is an appropriate alternative for access at this time.

[25] It is a concern that C.F.S.'s evidence was largely nonresponsive to the Court's directions, and further that it appears she did not discuss her plan with the grandparents, who only became aware of it when they were interviewed by the worker in response to her motion. In spite of this Court's clear directions of what was expected C.F.S. filed no particulars of any plan involving the grandparents, and no particulars of Covid-19 safety precautions until outlining them in her reply affidavit. In her affidavit filed following this Court's direction outlining the issues to be determined and the information required, she only addressed the request of returning the child to both parents' care in their own home. This relief was not before the court having been dismissed in Reasons dated April 14, 2020. It also continued to be the only relief she focused on in her reply affidavit.

[26] I am not convinced on the evidence provided by C.F.S. that the best interests of the child support an order for access supervised in the grandparents' home. In spite of the opportunity for her to provide the particulars of this plan, this relief is not addressed by C.F.S. in her evidence, although she did ultimately in her reply affidavit provide some details of her Covid-19 safety precautions. In all the circumstances I cannot have confidence that social distancing and safety precautions are maintained in her home by the respondent's and the other residents who apparently live there. This is also not a case where there is a recent status quo that has included unsupervised access or access at the grandparents.

[27] This Court has already taken judicial notice in this matter 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.

[28] I accept that regular physical contact with his mother is important for N.S. at this stage in his development and in his best interests. However, I am unable to find on the evidence that the best interests of N.S. in having face-to-face access with C.F.S. warrants the Court interfering with the Society's decision to temporarily suspend its supervised access program or that there is another appropriate alternative for access at this time. The Society's suspension of its access programs was done appropriately in the circumstances and pursuant to Public Health directives and is designed to protect the children in its care, kin and foster families, and Society staff. I am mindful that this deprives N.S. of any meaningful physical contact with his mother and deprives her of time with her child at this important time in his life.

[29] Were it not for the safety concerns due to Covid-19 this Court would have ordered that a portion of the access, including an overnight if possible, take place at the paternal grandparents' home.

[30] The unfortunate dilemma of denying face-to-face contact during the pandemic, when under normal circumstances it would be ordered has been addressed by numerous courts. I agree with the court in Dnaagdawenmag Binnoojiiyag Child and Family Services v. B.R.-P., 2020 ONSC 1988, who succinctly summarized the issue as follows:

[18] The court acknowledges that this matter was very difficult to determine. The mother's progress is so impressive that under normal circumstances, the court would have no difficulty ordering overnight weekend access. However, the court cannot overlook the fact that it is in the best interests of the children in the Agency's care that the Agency comply with all COVID-19 considerations and precautions. If a child is going back and forth from different households for access, the children and the foster parents and/or kin care providers are at risk for community spread of COVID-19. This may be less of a risk if there is a status quo in favour of the unsupervised/overnight access, (and the children in both households have already been exposed to each other - and there were no symptomatic or vulnerable persons in the household). Unfortunately, in this case, there is no status quo that includes unsupervised and/or overnight access. Additionally, there are possible vulnerable persons (with respect to COVID-19) in each household, being the mother's disabled child and possibly the Maternal father and his wife due to their age.

[31] I also agree with the court in SMCYFS v. C.B., 2020 ONSC 2109, when it stated the following when denying face-to-face access with an infant:

[43] Pazaratz J. stated in Ribeiro v. Wright, 2020 ONSC 1829 (S.C.J.) at para. 8 that, "the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible." I also agree with and adopt that statement.

[44] The fact that we are living in these extraordinary times has resulted in the suspension of most institutional supervised access facilities for visiting parents requiring those services. As I noted above, it is not surprising that this is the case. Social distancing is an essential part of addressing the Covid-19 pandemic, and it is difficult to imagine the ability of an access supervisor in socially distancing herself from a party during supervised access. This is especially where there is a problem between the child and the Respondent mother warranting face to face intervention, something that has occurred frequently in the past 14 months since the older children were apprehended.

[45] Covid-19 is a particularly nefarious virus. It is a hardy virus, staying on some surfaces for more than two days. It is easily transmitted from person to person. It can cause death in a significant number of cases, and anecdotal evidence makes it apparent that any person of any age is at risk from this virus. To shut down supervised access during Covid-19 is not an "administrative difficulty". It is, rather, a matter of life and death for some people, and at the moment there seems to be little rhyme or reason as to who is at risk and who is not. Supervised access in this case would also inevitably result in a clear breach of social distancing guidelines as recommended by both the provincial and federal government.

[46] I do not find that the child's best interests in having access to her mother warrants the court interfering in the Society's decision to cease providing supervised access while the pandemic is underway.

[47] I realize that this deprives G. of any meaningful contact with her mother, and also deprives the Respondent mother of time with her daughter in this very important time of life for her daughter. I am not dismissive of the losses to both mother and daughter that this entails. I am only saying that the health and safety of everyone involved in the access (including the mother and child, as well as the access supervisor) is more important than the cost to both G. and C.B. that will result from the loss of access.

[32] I further adopt the comments of the court in Simcoe Muskoka Child and Youth Family Services v. JH, 2020 ONSC 1941, when it wrote the following at paragraph 12:

[12] We are in "extraordinary times." The Society rightfully pointed out that it has a responsibility to comply with the Covid-19 considerations for all the children in their care. This means they must limit the children's activities in favour of social distancing and limiting community and/or face to face interactions as much as possible. It also cannot be overlooked that this responsibility extends to all the people providing care and/or services to the children in care. The Society has a responsibility to comply with Covid-19 considerations for all the children in their care, as well as the Foster Parents and Kin Care Providers (and any other children residing in those placements). This is a non-exhaustive list, there may be other's that should be included but are not the subject of this motion.

[33] However, this is not the end of the matter. I have found that physical contact with his mother is important for N.S. and in his best interests. To be clear, the suspension of face-to-face access between C.F.S. and N.S. should be a short-term measure that will not establish a new status quo for access, and this Court expects the Society to continue to review the access on an ongoing basis and expand access at the earliest opportunity to include face-to-face visits at the grandparents if possible when deemed safe in consideration of Covid-19 and pursuant to Public Health directives.

[34] Further, the dismissal of the motion should not be taken to mean that the Society worker not continue to work with C.F.S., the grandparents, and the foster family in an effort to formulate a safety plan that could have this child see his mother in person in the near future. However, on the basis of the evidence filed by C.F.S. and based on the considerations outlined herein the best interests of the child do not warrant the court interfering with the Society's decision to temporarily suspend face-to-face access.

[35] As such, the motion is dismissed.

Released: June 4, 2020

Signed: "Justice S. Paull"