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: November 5, 2020
Court File No.: C259/19
Ontario Court of Justice
Parties
Between:
BRANT FAMILY AND CHILDREN'S SERVICES (o/a THE CHILDREN'S AID SOCIETY OF BRANT)
Applicant
– AND –
A.C.
Respondent
– AND –
J.S.
Respondent
– AND –
A.S.
Respondent
– AND –
L.S.
Respondent
Before the Court
Before: Justice K.A. Baker
Motion: Form 14b Motion of October 27, 2020
Endorsement Released: November 5, 2020
Counsel
- B. Culp — Counsel for Brant Family and Children's Services
- D. Maslov — Counsel for A.C.
- A. Macdonald — Counsel for J.S.
- A.S. — Self-Represented
- L.S. — Self-Represented
Decision
BAKER, J.: November 3, 2020, in chambers
[1] Nature of the Motion
This is a Form 14b motion brought by the Applicant Society, seeking a final order in accordance with an Agreed Statement of Facts signed by all parties.
[2] Procedural Note
I am adjudicating this motion remotely and I do not have access to the entire court file.
[3] Evidence
The assigned family services worker, Karen Button has sworn an affidavit describing the circumstances of the signing of the Agreed Statement of Facts and attached that document.
[4] Finding on Need for Protection and Best Interests
I am satisfied that the facts set out therein establish that the subject child, B., continues to be in need of protection. I am also satisfied that the order of disposition which contemplates that the child B. remain in the care of his paternal grandparents is in the child's best interests.
[5] Access Orders
The materials also contemplate orders in relation to access to both the mother and the father. I am satisfied that the particulars of access including the duration, frequency, location and need for supervision be in the discretion of the Society, given the continuing protection concerns.
[6] Proposed Access Terms – Mother
The proposed order goes further however. It requires, as a condition of access, that each parent comply with various terms set out in the Appendices to the Agreed Statement of Facts. In the case of the mother, 13 separate requirements are set out, including attending for three different kinds of community services, attending for urine screens three times per week, and advising the Society of any new residents in the home.
[7] Proposed Access Terms – Father
In the case of the father, there are 9 separate requirements set out, including that the father demonstrate sobriety from alcohol or any non-prescription drugs for six months.
[8] Legislative Framework
Section 104(1) of the Child, Youth and Family Services Act provides as follows:
ACCESS ORDER
(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.
[9] Lack of Legislative Guidance
The legislation does not provide any guidance nor set out any criteria for the court to consider in determining what access terms are "appropriate".
[10] Jurisprudence on Access Terms
The jurisprudence also provides little guidance as to what factors the court should consider in imposing terms of access. Most of the case law deals only with "terms" such as frequency, duration of access, and whether supervision is required and if so, in what form. It would appear from my review of the law that there are very few cases in which a variety of terms are imposed as conditions of access.
[11] Similarity to Supervision Order Terms
The terms sought to be imposed in this case are much more akin to the kind of terms that would be imposed as part of a supervision order. In fact, some of the terms attached to the access order mirror the terms of supervision to be placed on the paternal grandparents, as caregivers of the child.
[12] Supervision Order Framework
Given this similarity, it seems logical to look to the provisions of the Statute which authorizes the imposition of terms of a supervision order. Section 101(7) of the Act provides that a court may impose, "reasonable terms and conditions relating to the child's care and supervision" on any parent or other person who will have care and custody of the child.
[13] Criteria for Supervision Terms
In Windsor-Essex Children's Aid Society v. B.(S.), 2007 ONCJ 288, Bondy, J. discussed the criteria governing the imposition of supervision terms and noted:
"Clearly, there generally seems to be consensus then that interim terms of supervision must be consistent with the legislative scheme of conditions that are reasonable relating to the child's supervision as the court considers appropriate — clause 51(2)(b) — and proportionate or commensurate with the need shown by the evidence."
In Children's Aid Society of Halton Region v. J.S., 2013 ONCJ 608, Zisman, J. noted the absence of legislative guidance on terms of supervision and said:
"This is sensible as any terms should be child and harm specific."
[14] Maximum Contact Principle
The maximum contact principle applies in child protection cases as it does more generally in family law. The party seeking to impose restrictions on a parent's contact or access to a child must demonstrate that it is necessary and that the limit is proportionate to the risk. Any such terms should be child and harm specific and be supported on the evidence.
[15] Analysis – Mother's Access Terms
The stated intention of the parties with respect to mother's access is set out in paragraph 5(3), which provides that mother's access shall be supervised by the maternal grandmother. While it may be desirable for the mother to attend the programming set out in the terms, including domestic counselling, drug assessment and parenting counselling, it is difficult to see how such terms are necessary given that access is to be supervised.
[16] Analysis – Sobriety Condition
The proposed term for access for both parents that they each, "demonstrate sobriety from alcohol or any non-prescription drugs for at least six months" is particularly troubling. Although clearly this, too, is desirable, for the parents to address the protection concerns, it is certainly not properly a term of access.
[17] Analysis – Father's Access and Monitoring
The Society gives scant indication of how it intends to exercise its discretion with respect to father's access. The Agreed Statement of Facts sets out that father is at present, refusing to meet with the Society worker and as a result, his progress in counselling and programs is unknown. It is difficult to see how the Society would even begin to monitor father's compliance with these terms, given that situation.
[18] Access as a Right of the Child
Access is the right of the child. It is not in my view, reasonable to create a situation where access is apparently contingent upon terms that are unrealistic or even unachievable. The father's access should not rely on his completion of services or signing releases for said service providers.
[19] Necessity of Sobriety Condition
There is no indication in the evidence provided that either parent has a history of attending access in an altered state due to consumption of drugs or alcohol. It is therefore difficult to see how a condition precluding this behaviour is necessary. In any case, should this type of situation emerge, the Society would be perfectly within its right to refuse or terminate the visit.
[20] Tailoring of Access Terms
For these reasons, I am not prepared to order the entire panoply of terms proposed by the Agreed Statement of Facts. Any terms of access must be tailored to harm reduction in the context of access.
[21] Continuation of Prior Residence Restriction
There is one further issue for consideration. The Agreed Statement of Facts indicates that the most recent prior order dated November 14, 2019 includes the term requiring that the Respondent father shall not reside in the home of the paternal grandparents without the express written consent of the Brant Children's Aid Society. This term does not seem to be included anywhere in either the proposed terms for access or in the terms for the supervision order. The evidence in the Agreed Statement makes it clear that the protection concerns in relation to father continue. It is difficult to see why this portion of the order should not continue.
[22] Order
Accordingly:
Final order to go per paragraphs 1, 2, 5 of the Agreed Statement of Facts submitted with the Form 14b motion dated October 27, 2020.
Final order per paragraph 5(3) of the Agreed Statement of Facts with the words, "with the Respondent mother complying with the terms and conditions set out in the attached Appendix" deleted.
The mother shall, as a term of access, notify the Society in advance of any anticipated new residents or overnight guests in the home.
Final order to go pursuant to paragraph 5(4) with the words, "with the Respondent father complying with the Terms and Conditions set out in the attached Appendix" deleted.
The Respondent J.S. shall not reside in the home of the paternal grandparents without the express written consent of the Brant Children's Aid Society.
The previously scheduled return date of November 10, 2020 shall be vacated.
Justice K.A. Baker
This 5th day of November 2020
The Honourable Justice K.A. Baker