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: November 19, 2020

Court File No.: Brantford C 151/15

Parties

Between:

The Children's Aid Society of Brant o/a Brant Family and Children's Services

Applicant

— AND —

A.H., C.T., L.L.

Respondents

Before the Court

Before: Justice A.D. Hilliard

Heard on: October 21, 2020

Reasons for Judgment released on: November 19, 2020

Counsel

E. Capitano — counsel for the applicant society

E. Abraham — counsel for the respondent L.L.

No appearance by or on behalf of A.H.

The Respondent C.T. previously noted in default

A. Macdonald — counsel for the Office of the Children's Lawyer, legal representative for the child, J.T.

Decision

Hilliard, J.:

Issue

[1] The only issue for me to determine on these proceedings is what access order should be made for the Respondent grandmother, Ms. L.L., to the child, J.T.

Background

[2] Brant Family and Children's Services (BFACS) brought a motion for summary judgment requesting orders that the child, J.T., be placed in the extended care of the Society and that access to the Respondent grandmother and the Respondent mother be at the discretion of the Society.

[3] The Respondent mother has not been participating in these proceedings since the onset of the pandemic in March 2020. She filed no responding materials in opposition to the motion for summary judgment. The Respondent grandmother did not oppose the order being sought for extended Society care as she conceded that she was not in a position to put forward a plan to care for J.T.

[4] On September 15, 2020 I made an order on the consent of all parties present placing the child, J.T., in the extended care of the Society. Access to the Respondent mother was ordered to be in the discretion of the Society. The issue of grandmother's access only was adjourned to a date for argument on affidavit materials. Counsel for BFACS and the Respondent grandmother agreed that the issue of grandmother's access could be determined without a trial but rather at a focus hearing.

Facts

[5] The facts are not generally in dispute.

[6] J.T. has been in the same foster placement since November 13, 2017 with the exception of a brief period in the summer of 2019 when an order was made for the gradual reintegration of J.T. into the joint care of the Respondent mother and grandmother. The placement with Respondent mother and grandmother broke down on August 15, 2019, before reintegration was complete, when J.T. was once again removed to a place of safety.

[7] Throughout the period from August 2019 to the present, the Respondent grandmother has consistently attended her access visits with J.T. From August 2019 to December 2019, the Respondent grandmother's access included unsupervised periods of time, coinciding with the Respondent mother's access.

[8] In March 2020, after the province-wide shut down as a result of the COVID-19 pandemic, the Respondent grandmother's access was reduced to virtual visits only. The Respondent grandmother consistently engaged in her virtual access with J.T.

[9] In person access visits recommenced in June 2020, including overnight visits. The Respondent grandmother is currently having access one weekend a month and virtual access once a week.

[10] J.T. speaks positively about his relationship with the Respondent grandmother and consistently reports that he enjoys the access visits he has with her. Although J.T. engages with the Respondent grandmother during virtual access visits, which were still ongoing at the time of argument, maintaining his attention for periods of time greater than ten (10) minutes is challenging.

[11] J.T. has a beneficial and meaningful relationship with the Respondent grandmother. There is no dispute that J.T.'s access with the Respondent grandmother should continue. The only issue is the frequency of J.T.'s access now that he is in the extended care of the Society.

[12] The foster parents of J.T. are the caregivers for his two (2) younger brothers who are in the extended care of the Society. It is the intention of the foster parents to adopt all three (3) boys. The foster mother swore an affidavit indicating that she is not opposed to the Respondent grandmother having access with J.T., but she is of the view that in person access visits four (4) to six (6) times per year is sufficient.

[13] The final order regarding the Respondent grandmother's access to J.T.'s younger brothers provides for access to occur not less than once per month, with a make-up visit to be provided if a scheduled monthly access visit is missed. That same final order provides for access between the J.T. and his siblings.

Analysis

Dispute Regarding Frequency of Access

[14] The dispute as between BFACS and the Respondent grandmother is the frequency of access that should be ordered. The Respondent grandmother is seeking alternate weekend access periods with J.T. as well as weekly virtual access visits for a minimum period of fifteen (15) minutes. BFACS is seeking an order that access be in the Society's discretion at a minimum of four (4) to six (6) times per year in consultation with the foster parents.

[15] The OCL's role is to provide views and preferences, not to advocate in the best interests of J.T. Given J.T.'s age (5), OCL counsel advised that she was not able to ascertain specific views and preferences from J.T. regarding frequency of access or even the issue of ongoing virtual access. OCL counsel does confirm that J.T. enjoys the access visits with his grandmother and looks forward to those visits as scheduled.

Impact on Ability to Fully Integrate with Prospective Adoptive Family

[16] The Society submits that a specified access order at the frequency requested by the Respondent grandmother will impair J.T.'s ability to fully integrate into his prospective adoptive family. This position is based upon the evidence of the foster mother that alternate weekend access visits with the Respondent grandmother will be disruptive for the family routine, taking J.T. out of family activities every other weekend.

[17] Given the disruptions in care experienced by J.T. in his young life, the Society argues that permanency and stability must be the primary considerations for the Court in determining an appropriate access schedule for the Respondent grandmother. In order to support J.T.'s permanency, Society's counsel submits that the access order for the Respondent grandmother should be more in keeping with a grandparent role rather than an alternate caregiver role.

[18] The Respondent grandmother's position is that ongoing consistent access is part of J.T.'s routine. Maintaining and expanding those visits would therefore support consistency for J.T. The Respondent grandmother argues that J.T. is already fully integrated into his foster family and there is no evidence, other than the concerns raised by the foster mother, that ongoing specified access with the Respondent grandmother would be disruptive or jeopardize J.T.'s permanency in his current placement.

[19] I agree that the integration of J.T. into his foster home, which is his anticipated adoptive home, is an important factor in determining what access order would be in J.T.'s best interests. This consideration is particularly relevant in this case as J.T.'s younger brothers reside in the same home and there is a final order for the Respondent grandmother to have access with the two younger boys in the discretion of the Society a minimum of once a month.

[20] Permanency and stability in a child's permanent placement is not, however, the only factor. Counsel for the Respondent grandmother correctly points out that consistency for J.T. is also an important consideration in determining an access regime. It is not disputed that the Respondent grandmother's access is a constant and predictable part of J.T.'s routine.

[21] A balance must be struck between the need for J.T. to fully integrate with the foster family in his current placement, given that this is anticipated to be his adoptive home, and the importance of routine and consistency for J.T. who has experienced significant disruptions in care during his formative years. In my view, the way in which to achieve this balance will be to structure an access order in keeping with the Respondent grandmother's role as a grandparent rather than a parent or former primary caregiver.

[22] I find that it is in J.T.'s best interests to maintain consistency and predictability in the frequency and timing of his visits with the Respondent grandmother. I am not, however, satisfied that access at the frequency being requested by the Respondent grandmother is required to meet this objective.

Consistency with Sibling Access Order

[23] In considering what access order would be in J.T.'s best interests, it is relevant to consider what access has been ordered for J.T.'s siblings with the Respondent grandmother as all of the children are living in the same home. The integration of J.T. into his permanent placement involves considering the relationship that his siblings have with their grandmother.

[24] The access order for J.T.'s siblings is once per month. This is consistent with the access regime currently in place for the Respondent grandmother with J.T.

[25] I am of the view that an access regime for J.T. with his grandmother different from that of his brothers could create confusion and disruption for both J.T. and his brothers. As all three boys have the same grandmother, I find that it would be in J.T.'s best interests that his access with the Respondent grandmother be the same as is currently ordered for his younger brothers.

Virtual Access

[26] The COVID-19 global pandemic has resulted in virtual access becoming more ubiquitous as a result of the need for physical distancing. In considering whether to make a specific order for virtual access, and more particularly a minimum duration for the periods of virtual access, I find that J.T.'s age is a relevant factor. J.T. is not yet six (6) years old. I accept the evidence of the foster mother that J.T.'s attention is difficult to maintain during virtual access visits.

[27] I am not satisfied that it is in J.T.'s best interests to have a specified order for virtual access to occur on a weekly basis as requested. I am also not satisfied that there should be a minimum duration specified for virtual access. Having accepted the evidence that J.T.'s attention during virtual access has not been successfully maintained by the Respondent grandmother for periods longer than a few minutes, ordering minimum time periods would not be in J.T.'s best interests.

Frequency of Access

[28] The Respondent grandmother is currently having overnight access once a month. I find that this frequency of access is in keeping with the Respondent grandmother's role as a grandparent rather than a caregiver. I find that the current frequency is the routine that J.T. is used to and is comfortable with. I am not satisfied that an increase in access is in J.T.'s best interest.

[29] In considering whether there should be an increase in the frequency of access J.T. has with the Respondent grandmother, I have taken into account that there is an order for J.T.'s younger brothers to have access with the Respondent grandmother once a month. Should I order an increase in access for J.T., the end result would be that J.T. is exercising access with the Respondent grandmother at times when his brothers are not present.

[30] An increase in access for J.T. with the Respondent grandmother would also be a significant change in J.T.'s current routine. I accept that routine and structure are essential for the well being of J.T. and are necessary to support his continued integration into his potential adoptive home.

[31] The order being requested by the Society would result in a reduction in the time that J.T. spends with the Respondent grandmother. I find that the request for visits to be reduced to four to six times per year is not in J.T.'s best interests. Just as the request for an increase in access visits by the Respondent grandmother represents a significant change in J.T.'s current routine, so would the reduction of access that is being requested by the Society.

[32] I find that in determining the frequency of access visits with the Respondent grandmother the paramount considerations are routine, structure, and predictability.

Access Holder or Recipient

[33] The Respondent grandmother has requested that she be designated the access holder rather than the access recipient. The designation of access holder would provide the Respondent grandmother with specific rights during the openness process should the foster parents apply to adopt J.T.

[34] The designation of access holder and access recipient is set out at s. 105(7) of the CYSFA as the designation of "who has been granted a right of access" and "to whom access has been granted." The question is not whether the child or the (grand)parent will be the access holder, but whether the (grand)parent will also be the access holder.

[35] Although the evidence is undisputed that the Respondent grandmother and J.T. have a meaningful and beneficial relationship, that in and of itself is not sufficient to conclude that the Respondent grandmother should be an access holder. The relationship that is being preserved in this case by an access order is J.T.'s relationship with his maternal grandmother who at various times in his young life was a caregiver jointly with J.T.'s mother. The familial bond being preserved is for the benefit of J.T.

[36] I am not satisfied on the evidence before me that the Respondent grandmother should be granted a right of access. J.T.'s rights to continue to have a relationship with his maternal grandmother must be preserved, but I find that there is no corresponding right that should be conferred on the Respondent grandmother. She is the person to whom access has been granted in these circumstances to ensure that J.T. can maintain that grandparent-child relationship.

Conclusion

[37] I find that it is in J.T.'s best interests that the status quo of overnight access once per month continue on a final basis. I am not of a similar view on the current virtual access regime.

[38] I find that virtual access visits twice monthly are sufficient to maintain the Respondent grandmother's relationship. I am not convinced that minimum periods of time should be ordered for the virtual access. I find that the virtual access must have the flexibility to be responsive to the needs of J.T., bearing in mind his age, and the evidence before me as to his attention and focus.

[39] Bearing in mind that this is a proceeding under the CYSFA under which no presumption applies in relation to costs, and finding that there was divided success, I am not satisfied that this is a case in which costs should be ordered.

[40] A final order shall issue as follows:

Final Order

(1) The Respondent grandmother shall have access with the child, J.T., once monthly for a minimum 24 hour period as arranged between the Respondent grandmother and the Society in consultation with the foster parents. If a monthly access visit is missed, the Respondent grandmother shall be entitled to a make-up visit.

(2) The Respondent grandmother shall have virtual access with the child, J.T., twice monthly, the length of each virtual access period to be determined by J.T.'s willingness to engage with the Respondent grandmother over a videoconferencing platform.

(3) The child, J.T., shall be the access holder and the Respondent grandmother shall be the access recipient for the purposes of this order.

(4) There shall be no order as to costs.

Released: November 19, 2020

Signed: Justice A.D. Hilliard