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 26, 2020

Court File: Elliot Lake File No. 16/11

Parties

Between:

Children's Aid Society of Algoma Applicant

— AND —

L.G. M.H. R.G. (Added Party) Respondents

Before the Court

Justice: John Kukurin

Heard on: Written submissions

Reasons for Judgment released on: November 26, 2020

Counsel

• Anthony Marrato — counsel for the applicant society
• George Florentis — counsel for the respondent mother, L.G.
• No appearance — respondent father, M.H.
• Eric McCooeye — counsel for added party, R.G.
• Andre L Berthelot — counsel for the Office of the Children's Lawyer, legal representative for the children

Reasons for Judgment

Kukurin J.:

Introduction

[1] These are supplementary Reasons following the release of my Reasons after trial which are now reported at [2020] O.J. No. 2868, 2020 ONCJ 297. The prior Reasons, released June 11, 2020, dealt with a status review application involving the three subject children: M. (female, now age 16 years), J. (male, now age 14 years) and P. (female, now age 10 years). These present Reasons deal only with the child M.

[2] To clarify why the trial is continuing, it is not to change anything I have already determined, but rather to make further decisions required to complete the trial. These further decisions are based on the evidence already heard at the trial as well as additional evidence which the parties through their counsel have filed since the release of my prior Reasons after trial up to the present. I have chosen to issue three supplementary Reasons, one for each child. These supplementary Reasons deal only in part with respect to the urgent motions brought by OCL counsel for the children and by the Society.

[3] Moreover, the "in person" trial format with viva voce evidence is not being carried on in this continuation of the trial. I have directed that the evidence is to be by way of affidavits. I have invited any party wanting to question any affiant of such affidavits to do so. None have chosen to do so. The submissions of counsel are also not being presented orally, as I have directed that they are to be written submissions. There are a number of rationales for these directions and they are fully explained in a Case Conference Continuation Memo I circulated to all counsel dated September 9, 2020.

[4] A review of my Reasons after trial indicates my inclination with respect to disposition. However, I was unable to deal with the issue of 'disposition', or with the other unresolved issue of 'access', primarily because I had neither the evidence, nor submissions of counsel on these two essential claims. Since release of my Reasons after trial on June 11, 2020, a number of developments have occurred:

(a) OCL counsel for the children brought a motion for interim access by the children M. and J. with their maternal grandmother N.R. (the "grandmother"), and for a court determination that it was an urgent motion.

(b) The Society brought a motion seeking to vary the existing interim maternal access order of the mother L made by Justice J.P. Condon on July 22, 2016, and for a court determination that it was also an urgent motion.

(c) I released written Reasons on the urgency issue of the aforesaid motions, on September 13, 2020 (OCL motion) and September 19, 2020 (Society motion).

(d) I sent to counsel "Questions Requiring Answers and Submissions" in an effort to focus what I required to complete this matter.

(e) I convened a case conference continuation on September 9, 2020 following which I gave directions for completion of trial by way of affidavits and by written submissions from counsel.

Preliminary Matter

[5] I find it necessary to clarify a complaint raised by Society counsel to which a response was made by OCL counsel. The society indicated that, at the trial of this status review case, the following:

"At the trial of this matter it was also acknowledged by all parties and counsel for the children that the maternal grandmother, [N.R.] would not be presented as a kin option and that [N.R.] would not be a kin option. As a result evidence of the suitability of [N.R.] as a potential placement was not presented by any party. The court had virtually no information to make a final determination on placement with the maternal grandmother and sought further information from the parties and counsel for the children."

[6] Firstly, I do not recall that any such acknowledgement was made by the parties at the trial. I may, of course, be mistaken in my recollections, or perhaps such acknowledgement may have been made privately between counsel themselves. In any event, such acknowledgement, even if made, does not bind the court. In fact, the court is statutorily obligated, before it makes an order for interim society care or extended society care, to consider placement with a "relative". In this case, the maternal grandmother is a relative by virtue of the definition of relative in the Child, Youth and Family Services Act (the CYFSA) found in s. 2(1) of this Act. An acknowledgement, or a consent of counsel, even if one was made, does not nullify an obligation placed on the court by statute.

[7] Secondly, the Answer and Plan of Care of the mother filed in response to the status review application of the society clearly included a claim for placement of the children with the grandmother as an alternative, in the event that they were not returned to her. This Answer and Plan of Care was never amended or withdrawn and remained a claim at trial. Consequently, this was an issue placed before the court and cannot simply be ignored, at least not by the court. If the Society ignored this claim, it did so at its peril.

[8] Thirdly, there were a number of (trial management) conferences held in this case. If any changes were being made to the claims in the pleadings, they should have been made at one of the conferences where they could have been formally documented. None were made on the claim for placement with the grandmother. I excerpt the following from the May 1, 2019 memo sent to all counsel:

"The current main objective of SR No 3 is to determine if the children are still in need of protection if returned to their mother's care [or placed with kin (MGM or Mat aunt)]."

"There are competing claims for care and custody of the children, and for access to them. No one should be assuming that his/her/its position will be totally successful. Accordingly, all should be prepared to support or oppose all claims made with evidence and with argument."

[9] Fourthly, the grandmother brought her own motion to be added as a party. It was dismissed. She brought that motion with a view to being caregiver and custodian of the children if they were not to be returned to their mother. The Reasons of Justice J.P. Condon dismissing this motion confirm that the Society was well aware of the grandmother's intentions, and that the Society opposed her being added as a party to advance these intentions. The following excerpt from his Reasons is corroborative:

[25] The positions of the Society are summarized as follows:

(d) It is not necessary for the maternal grandmother to be added as a party in order to assess her position. The mother's plan of care contains the alternate position that if the children are not returned to her care and custody then they should be placed in the care and custody of the maternal grandmother.

(e) Further to the last point, the maternal grandmother's plan is that she should be considered an alternative caregiver if the children are not returned to the mother.

[43] The maternal grandmother has presented her plan of care as an alternative in the event that the mother is not successful in having the children returned to her.

[10] Fifthly, the society brought a motion for summary judgment that was dismissed, and its appeal of that dismissal was also dismissed. It is a clear inference from the claim in its summary judgment motion that the claim to have the children placed with maternal grandmother, admittedly as an alternative to placement with the mother, was still a claim that was alive and outstanding. It is noteworthy that the society's summary judgment motion was brought in February 2017, well after the decision of Justice Condon in July 2016. It was not heard until March 2018, and appealed by the Society in May 2018. In that summary judgment motion, as I indicated in my Reasons after trial, the society

"…. sought crown wardship and 'orders' that the children cannot be placed with their mother or with their maternal grandmother"

[11] In summary, on this preliminary complaint, the society was well aware (or should have been) that the claim for a disposition of placement of the children with the grandmother, albeit as an alternative claim, was an issue that was live and remained so at trial. In fairness, so were the mother and OCL counsel for the children. I add that the society was correct to some degree in its complaint (at paragraph [4] above) that virtually no evidence of the suitability of the grandmother as a placement disposition was presented by any party. This was a claim made by the mother and, in my view, she was distressingly lax in presenting any evidence to support this alternative claim, particularly when the onus was on her. It was even more the onus of the mother when the court denied the grandmother party status. This lack of information was the main reason why the court could not arrive at a final disposition.

Placement of the Child "M"

[12] In my Reasons after trial, I dealt with the ongoing need for protection if the children were to be returned to their mother, the person who had charge prior to their removal in November 2014 by the Society. I concluded that there was an ongoing need of protection. I also concluded that no supervision order would be adequate to protect them if they were to be returned to her, mainly because she could not be relied upon to comply with supervision order conditions, and because she was not amenable to working with the Society. I also concluded that the court ought not believe all that the mother said.

[13] This left consideration of the grandmother as caregiver and custodian. Would she be a source of a risk of harm to the child "M" in this capacity? I concluded that she would not. But in view of the little evidence presented about the grandmother's plan, I had some reservations. My reasons were released on June 11, 2020. Five full months and more have elapsed since then. I believe I have given all parties sufficient time and have been liberal in the directions I gave with respect to additional evidence and argument that the court would admit. Moreover, I provided to counsel a lengthy list of Questions and Answers sought by the court specifically to focus the evidence and arguments needed to deal with disposition and access.

[14] Whether the society believes that the grandmother is a source of risk of harm to M. is not explicitly set out in the society's evidence or argument filed to date. It is clear, however, that the Society opposes placement of M. with her. Why it does so can be distilled down to a handful of reasons.

(a) The grandmother was present in the lives of the children while they were in their mother's care. No report was ever received by the Society from the grandmother of any harm or risk of harm to the children. The Society states that she has "confirmed most recently" that she does not believe that the children were exposed to any risk while with the mother, does not believe that the society has evidence that justified their removal from their mother, and does not understand why the society continues to insist on supervising the mother's access visits.

(b) The grandmother does not believe that the mother will harm the child M. if M. is placed with the grandmother.

(c) The grandmother does not believe that further involvement of the society is necessary if M. is placed with her, and the society believes that the grandmother will defer to the mother on matters concerning the child M., presumably when the mother is present with the grandmother and M.

(d) The grandmother has not provided a CPIC (police record check) to the Society for herself, or for Mr. Ro.C., an 81 year old man the children seem to regard as a 'grandfather figure', with whom the grandmother has maintained a relationship for over a dozen years.

(e) The grandmother's present residential accommodations, which appear to be a geared-to-income, one bedroom unit in a seniors complex is not suitable, from a variety of perspectives, to house an additional two teenage occupants (M. and J.).

(f) The grandmother does not have transportation that is needed for properly caring and providing for M., particularly for purposes of attending school, but also for a number of other domestic needs for which transportation is necessary.

(g) The grandmother's own history as a mother to her daughters, her inadequacy as a parent to them, especially the daughter R., and some family instigated allegations of the grandmother's being a sexual abuser.

(h) Possibly, the grandmother's age, her medical health issues, and the adequacy of her financial resources.

[15] Protection concerns are not always the same for all children in a family. In these Reasons, I am dealing with the child M. in the context of M. living with her grandmother. It is fitting that we focus on the child M. specifically when considering protection concerns.

[16] The first question when speaking of protection is protection from what, and from whom? The child M. is 16 years old. She is in grade 11. She is not an academic wunderkind, but is functioning adequately in her studies. She has a specific learning disorder but has an IEP (Individual Education Plan) which is designed to assist her academically. She is proficient and participates in school sports and recreational activities and gets along socially. She is described by the society as being "consistently compliant", meaning that she doesn't make waves and is not disruptive. She has ambitions in the trades at the moment. She is comfortable at her present foster home and in her present school, but has stated that she is prepared to relocate to her grandmother's home in Blind River and to return to her former French High School, despite the fact that she would prefer to be in an English High School. The court had an opportunity to view M. as she was called as a Society witness at the trial.

[17] The court's overall impression is that M. is an average child in most respects. She knows what she wants and has been consistent in articulating her wishes. Overall, she has been a compliant child, not without some rebellious behaviours in her earlier pre-teen and teen years, and she is well on her way to independence in the not too distant future. The court accorded her views and wishes substantial weight in its application of the best interests test considerations on disposition. While the court did not accede to her wish to return to her mother, it was provisionally persuaded to accommodate her back-up wish to live with her grandmother. M. has expressed no concerns with her grandmother as her caregiver and custodian. She and her grandmother enjoy an excellent relationship, and have done so since her birth. The child M. has not nearly as pleasant a relationship with the Society, or its workers, and wishes the society was out of her life entirely, or that its involvement is minimized. I get the impression that M. feels trapped between two inimical entities, her mother and the society, that have been perpetually squabbling and at odds for as long as she can remember.

[18] Having regard to M., the question of from whom she should be protected becomes extremely relevant. Frankly, I do not see the grandmother as being that person, either from the grandmother's acts, or from her omissions. In fact, the grandmother is viewed by the court as a protector and as a supportive and affectionate family member in her interactions with M. The grandmother is age 69. She is a senior citizen, about whom the most pejorative thing that can be said is that she supported her daughter (M.'s mother) in her conflict with the Society, perhaps with a less than perfect insight about the mother that stems from family bias. Even with the grandmother taking the side of the mother on matters concerning the child M., that does not amount to a concern on the part of the court that M.'s health or safety will be compromised. The reality is that the mother will not live with the child M. The mother will not have any say in the care and supervision of M. The mother will be an access parent only. In fact, she will only see M. during limited access visits, many of which the society will be able to supervise with its access supervision personnel. This answers the Society's concerns set out in paragraphs (a), (b) and (c) of [14] above.

[19] Additionally, M., while technically still a "child" by CYFSA definition, is more properly an adolescent, and is a person described by the Supreme Court of Canada as a "mature minor". Canadian law has recognized the "mature minor" doctrine in its jurisprudence. Essentially,

"… the common law has more recently abandoned the assumption that all minors lack decisional capacity and replaced it with a general recognition that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding."

[20] Moreover, the provincial CYFSA statute has arguably accorded to children ages 16 and over, some decisional deference. For example, a society cannot now remove from a person having charge of, and place in a place of safety (i.e. apprehend), a child age 16 or older without the child's consent. In fact, a society cannot even obtain a warrant to apprehend a child age 16 or older without that child's consent. That appears to be regardless of the nature and degree of risk of harm that the Society believes such child may be in. Nor can a court make an order for access to a child over age 16 without the child's prior consent. A 16 year old child is now able under the CYFSA to enter into an agreement directly with a Society for provision of services and supports for the child.

[21] With respect to a CPIC check, the evidence indicates that the grandmother has attempted to obtain one, but due to COVID pandemic interferences, the police service has been made unavailable to the public. This may now be changing. The grandmother has apparently made efforts, but has done so to accommodate the request of the society which has undertaken a 'kin assessment' of the grandmother. The grandmother attests under oath that she has no criminal record. The obligation placed on a society in completing 'kin assessments' requires the society to obtain from the grandmother, as the prospective caregiver, her consent to a police record check. The evidence indicates that the grandmother has given this consent. The grandmother is not obligated by the CYFSA, or any regulation made thereunder, to obtain a CPIC police record check, nor to provide this to the society. It seems to me that it is a chore of the society to get this CPIC check from the appropriate source. In any event, the society has made no allegation that the grandmother has any criminal convictions and the grandmother says she has none. This is not a major concern to the court in this case. With respect to Mr. Ro.C., it appears efforts have been made but with no results yet. He is not, in any event, going to reside in the grandmother's household. I can appreciate why the Society may wish to have the comfort of a CPIC check on him. He has admitted a dated (30 years ago) drinking and driving conviction. He is now age 81 and no longer drives. I am not worried on account of any criminality of this man, particularly in absence of any allegations by the society.

[22] The society may be intimating that the grandmother may be deficient in that she lacks adequate transportation. If this is an area of concern by the Society, it is a minor one. Not everyone owns a vehicle in Blind River. The grandmother indicates that she uses public transportation when needed. She also indicates that she has a friend of thirty years who has a vehicle, who drives, and who has indicated she will assist the grandmother with any needed transportation. Moreover, the grandmother had a driver's permit which has expired, but she is in the process of having it re-activated. In addition, Mr. Ro.C. has a vehicle which he does not drive and the intimation is that it might be available to be used by the grandmother. I also note that M. is age 16, and I take judicial notice that, in Ontario, age 16 is the age when a person can start the process of acquiring a driver's permit. Considering transportation in a contextual framework, Blind River is a small community where many people walk. The grandmother indicates that stores and schools are walking distances from her present home. From a grandparental care and management perspective, I do not rate transportation a factor sufficiently significant to cause the court any concern.

[23] The evidence of the society with respect to the grandmother sexually abusing children known to her is accorded almost no weight by this court. This is for the following reasons:

• The society's information source is anonymous, that is, not identified, and its evidence derives from a compilation of society recordings that are presented as hearsay.

• The events involving the incidents of alleged sexual abuse started in 1961, almost sixty years ago, and is very dated. The grandmother then was approximately age nine, and a child herself.

• The grandmother had discussed these reported allegations with the society in 2013, seven years ago, and denied that they were true, provided her understanding of why they were made, and indicated that the reporter had recanted them.

• Subsequent to the society's discussion with the grandmother in 2013, efforts were made by the Society to contact the original complainant. No information was provided as a result of that effort, and the inference is that no contact was made in the seven years that followed.

• No details of what the reported alleged sexual abuse consisted of were contained in the society's evidence.

All of the evidence with respect to any alleged sexual abuse by the grandmother is clearly hearsay, or hearsay within hearsay, and receives the judicial weight accorded to such evidence. In light of the grandmother's denial of the veracity of these allegations, it was up to the society to investigate them and verify them through more reliable sources. It apparently did not.

[24] With respect to the grandmother's relationship with her other daughter R., the Society is well aware from its own dealings with R. that she is a difficult adult. That the society has reports of historical conflicts between R. and her sister (the mother L.) when they were children is unsurprising. A report that R. was sexually abused (23 years ago in 1997) was investigated by the Society and was not substantiated. Currently, R. seems not to have a good rapport with either the grandmother or with the mother. She has no access rights, is no longer seeking them, and will likely not have much, if any, contact with the children in the future. The grandmother had problems raising both daughters. She may have been guilty of leaving them unattended and unsupervised for varying periods of time when they were ages four and eight. However, no grandchild for whom her care and custody is presently sought is less than 14 years of age. I understand that children as young as 12 years, who have taken a babysitting course, are not only allowed to be alone, but are entrusted with the care of younger, often infant children with permission of the parents of such children and, apparently, the approval of Societies. When a child is age 16, as is M., I do not feel that the grandmother's direct supervision is as essential as it might be for a younger child. The grandmother indicates she does not believe in physical discipline. I have no fear that M. will be physically disciplined by her grandmother while living in her home.

[25] The grandmother's age is a bit concerning. However, many grandparents are the primary caregivers for their grandchildren these days. The reality is that at age 16 years, M. will not likely be a dependent of the grandmother for much longer. She will be an adult in less than two years, and will either be pursuing post secondary education, or will be gainfully employed, or will find a mature adult relationship with a peer. In any event, she will soon be transitioning to independence and the grandmother's age will soon no longer be a concern with respect to M.'s care and supervision.

[26] The grandmother's medical circumstances are also of some concern to the court but only marginally. The grandmother reports she has an ulcer condition which is stable, and a cardiac condition, which she indicates is controlled by medication. She has a family doctor, and has provided to the society authorizations for release of her health records. Absent any specific allegation by the society that her health will compromise her care and supervision of M., and in absence of any medical or hospital report, I do not consider her health as a significant adverse factor in placement of M. with her.

[27] The most concerning aspect of the grandmother's circumstances is her physical residence. Her one bedroom unit is not sufficient, except in the short term, to accommodate grandchildren. She needs a bigger residence and she has taken steps to try to secure one. While she reports she has assurances from the public housing authority in her town that she will jump near to the top of the queue once she has formal custody, this is clearly hearsay from her, and the society is correct to be sceptical of such evidence. She offers nothing from the housing authority to confirm this. Housing and custody are somewhat like the chicken and the egg. Which comes first? It is further complicated by the fact that the court has indicated its inclination to place the child J. with the grandmother as well. So she will need custody of J. as well in order to satisfy the housing authority of the size of the rental unit she needs. These are practical concerns, but not insurmountable ones. I agree that her accommodations are too small. She can accommodate one live-in child currently in her unit at most. The logical choice would be M. as she presents the least problems, is the most compliant, is the most mature, is the oldest of the children, and is likely to be the most helpful to her grandmother. In any event, this housing challenge must be addressed and as soon as possible.

[28] The mother endorses placement of M. with the grandmother. This placement has the prospect of ameliorating maternal access, which includes the mother's access rights to M., as well as M.'s access rights to her mother. It may also factor in favourably with sibling access. I deal with access further below.

[29] I have already dealt with placement of M. from the standpoint of the considerations in the best interests test in my Reasons after trial. The society has not persuaded the court with its supplementary evidence that the placement of M. with the grandmother is inappropriate from either a protection or a best interests perspective. The evidence, primarily from OCL counsel for the children reinforces my inclination to order such placement. As to the obstacle of the grandmother's housing, this placement disposition will, it is hoped, accelerate the acquisition of a larger, more suitable residence.

[30] The school situation presents a bit of a problem. The fall semester is almost completed. It seems counterproductive for M. to leave her present school and her program when the semester will soon end. If she wishes to complete her semester, she can remain in her present foster home and continue until her semester is completed. She can move to her grandmother's residence thereafter pursuant to this court's order. She will then be in the care and custody of her grandmother but subject to a supervision order with a number of terms and conditions with which I deal below. The fact that this residence is the grandmother's current senior citizen unit does not change the placement with the grandmother.

Society Supervision of M.'s Placement

[31] This status review application was brought under s.64(1) of the Child and Family Services Act (the CFSA) - now s.113(2)(a) CYFSA. The disposition orders that the court hearing the status review can make are set out in s.114, namely to:

(a) vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 101; or

(d) make an order under section 102.

[32] The original order placed M. with her mother subject to society supervision. I have already decided that placement with the mother is not a viable option, even with variation of one or more conditions. There is no claim for an order for grandparental custody of M. under s.102(1) of the CYFSA. Nor has anyone made any submissions that such order should be made. Accordingly, this court declines to deal with s.102 considerations. This leaves only the making of a further protection order under s.101. The order I choose is one that necessarily requires supervision by the society. It is made under clause 1 of subsection 101(1) CYFSA:

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

[33] The length of the supervision order that a court makes under s.101(1) has limitations. It cannot be less than three months nor more than 12 months. I needn't speculate on the reasons for such minimum and maximum durations. However, from a practical point of view, they seem reasonable. The society submits that a length over six months would be appropriate. OCL counsel, on behalf of the children suggests a nine month length would be appropriate. The mother makes no submissions on the duration of any supervision order.

[34] Duration of a supervision order, in my view, is a matter that is often decided with too little attention, and with no cogent reasons. It is like the length of a sentence in the criminal justice system – often a bargaining chip in the plea bargain process that is an integral part of prosecution and defence negotiations – and even has a role in many a judicial pre-trial. Within the framework of the three month to twelve month statutory limits, this court has to choose a suitable duration. I opt for the nine month duration. Firstly, it will give M. sufficient time to settle in to what will be, for her, a novel environment. It will enable M. to make decisions based on her residence with her grandmother. Secondly, it will allow the society a sufficient time to monitor the placement, assess M.'s progress, and decide what it plans once the term is finished. Thirdly, it will also allow the parties and the entire family to see how access arrangements work out. Hopefully, it will allow the enough time for the COVID pandemic to abate, or come under control, a pandemic that has a concrete and a real-world impact on all relationships, and clearly on those in M.'s family.

[35] The logical question to ask is why a supervision order is needed and what time frame is reasonable to accomplish the aims of the supervision. In the case of the child M. and her placement with her grandmother, the objectives of the society are to be inferred from the conditions that the society wishes the court to include in the protection order it is making. I note that all but one of the seventeen conditions begin with "the grandmother shall …". The remaining condition permits the society visits to the grandmother's home, both announced and unannounced, as well as private visits with M. at the grandmother's home or elsewhere. It is apparent that the society wishes to place limitations and restrictions on the grandmother in terms of who and how she permits others to have any contact with M. It wishes to have physical access to her home, to M. in private, to service providers to M., as well as service providers to the grandmother. It also wants the grandmother to co-operate with the society, meet with the society personnel, both announced and unannounced and to attend and participate in any case planning meetings scheduled by the society.

[36] The OCL counsel for M. did not express any opposition to the conditions sought by the society. The inference I make is that, so far as M. was concerned, these conditions were all acceptable.

[37] The mother made no submission whatsoever, so I assume that she had no objections to the conditions the society was including.

[38] The grandmother is not a party. She filed nothing that touched on the conditions sought by the society. She is also not represented by counsel and may have been unaware that she had any say in what conditions the court attached to the supervision order.

[39] There is a provision in the CYFSA that deals with supervision order conditions. That is subsection 101(7) which I set out below in full.

S. 101(7) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on,

(i) the child's parent,

(ii) the person who will have care and custody of the child under the order,

(iii) the child, and

(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

[40] The conditions suggested by the society, in the face of virtually no contrary submissions, appear to be mostly reasonable except for some which I would want to be amended. These are the following and for the following reasons.

(a) With respect to private visits with M. at any location requested by the society, I would exclude her school. Students are sensitive, and to be seen by fellow student peers having interviews with society personnel may cause M. some disquiet or embarrassment. In addition, M. has legal representation. Should M. so request, I would include a provision that she be permitted on her request, to have her legal counsel present with her for legal advice for any, or any part of any, interview she has with the society. Moreover, I question whether society interviews with M. is a condition that should be imposed on the grandmother. I suggest that this is a condition that should apply to M. herself.

(b) I have no issue with the condition that the grandmother provide to the society releases to permit the society to obtain information from any service provider that deals with the grandmother. In fact, the grandmother says she has already done so. However, if the information is with respect to M., I believe that M. is at an age at which she should have some say in what information is released to the society. She may have some privacy interest in not having that information released. I suggest that the society may wish to re-think its proposed wording with respect to this condition, as should OCL counsel for M. My suggestion is that if release of information about M. becomes an issue, the parties can let the court deal with it.

(c) I have an issue with the condition that requires the grandmother to ensure adult supervision of M. by someone other than herself, and that this be limited to a maximum of four continuous hours. This is not a six year old child. M. is age 16. She can be on her own without adult supervision. And if she is supervised by anyone else, it need not be for four hours maximum. I have no idea where this maximum came from. If the grandmother wants to visit Mr. Ro.C. in Sault Ste. Marie, she should, like any responsible caregiver and custodian, either take M. with her or arrange for M. to stay with someone else. I would have no objection to a condition that would require the grandmother to advise the society well in advance of any planned trips, her itinerary and what arrangements she makes for M., if any.

[41] I have given some thought to what conditions might be reasonable that would apply to others. With respect to M., although she has expressed a wish to have the society out of her life, that is not going to happen. I would impose on her a condition that she co-operate with the society workers, that she attend any case planning meetings arranged by the society, with her legal counsel if desired, and that she also provide releases requested by the society for information about herself from all her service providers, except those she wishes not to provide such information. I would also include a condition on her that she have no contact with her mother except such contact as is permitted within the limits of the access provisions of the court.

[42] With respect to the society, I would impose a condition that it use its best efforts to facilitate the grandmother's efforts to obtain more spacious and more suitable accommodations through the town's housing authority, including writing any letters that might be required or desired by such authority.

[43] With respect to the mother, she is a person who would "participate in a plan for …. access to the child". In my Reasons after trial, I made reference to the mother's ignorance and her cavalier disregard of the conditions in her supervision order. I would not be averse to imposing a condition of the proposed supervision order that prohibits the mother from contact with M. other than is permitted in the provisions for access in the order of the court.

[44] The society's draft supervision order can be criticized, although not severely, as being standard, generic, and almost pro forma in many respects. Supervision orders should be tailored and customized to fit the particular circumstances in which they are meant to apply. The grandmother is not the mother. She is a senior citizen 69 years of age. She is not a source of risk of harm to M. The child is age 16 and is a mature minor. These variables should be taken into account in what conditions are appropriate.

[45] In summary, I suggest that appropriate protection (placement and supervision) order and its terms and conditions with respect to M. are as set out below:

PROTECTION ORDER FOR CHILD M.

1. The order of Justice J.P. Condon dated June 22, 2016 with respect to temporary care and custody of the child M., born [date], 2004 is terminated and the child M., born [date], 2004 shall be placed in the care of the maternal grandmother, N.R., for a period of nine months commencing when she physically moves into her grandmother's home, subject to the supervision of the Children's Aid Society of Algoma and subject to the following terms and conditions:

a) The Society shall have the right to scheduled and unscheduled visits to the grandmother's home, as well as to 'private' visits with the child in the home, or at any other location requested by the Society except at the child's school, provided that the child shall have the right to have her legal representative present for any, or any part of such 'private' visits, which may include the counsel's remote presence by telephone or electronic means.

b) The grandmother shall cooperate with the Society including meeting with the Society, on an announced and unannounced basis, and shall attend and participate in all scheduled case planning meetings, as requested by the Society;

c) The grandmother shall sign such consents or releases as are necessary to permit the Society to obtain information, communicate with, or collaborate with any doctors, health care professionals, counselors, treatment providers, or other agencies or service providers involved with the grandmother and, subject to the qualification set out in clause (r) below, the child;

d) The grandmother shall follow all reasonable recommendations of the Society and any other agencies or service providers involved with the grandmother and the child;

e) The grandmother shall ensure that all medical needs of the child are appropriately met at all times, including attending with the child's physicians and following the recommendations of the physicians;

f) The grandmother shall ensure that the physical, emotional, and developmental needs of the child are met and shall follow any recommendations made to her by any service providers involved with the grandmother and the child;

g) The grandmother shall not leave R.C. and/or Mr. Ro.C. in sole caregiving roles with the child at any time, and shall not permit the mother, L.G. to be in a sole caregiving role except in the context of M.'s access to the mother as set out in the provisions for access by M. to her mother.

h) The grandmother and the mother shall not allow any contact between the child and G.D.

i) The grandmother and the mother shall remove the child from any location where G.D. may be found;

j) The maternal grandmother and the mother and the child shall immediately report to the Society any contact that the child may have with G.D.;

k) The grandmother shall ensure that the child has an alternate care provider if the grandmother is absent from her home overnight for whatever reason, and subject to any absences that arise from unforeseen or emergency circumstances, the grandmother shall give the society:

• 48 hours notice of her intended absence
• details of her itinerary
• her contact information during her absence
• details of the alternate care arranged for the child, who shall not be the mother.

l) The grandmother shall advise the Society in advance of any changes in her living arrangements or contact information and, in any event, immediately when such changes occur;

m) The grandmother and the mother shall ensure that the child is not in the presence of, or in the same residence as, any person who is engaging in verbal or physical aggression, or any person who presents as a risk of engaging in verbal and physical aggression;

n) The grandmother and the mother shall not use any form of physical discipline or corporal punishment on the child, and shall not permit any other person to use any form of physical discipline or corporal punishment on the child;

o) The grandmother shall not permit L.G. to have access to the child except as permitted by this order;

p) The grandmother, in her care of the child, and the mother, and the child shall follow the directives of the Public Health Agency of Canada and Ontario Public Health relating to COVID-19.

q) The child shall sign such consents or releases as are necessary to permit the Society to obtain information, communicate with, or collaborate with any doctors, health care professionals, counselors, treatment providers, or other agencies or service providers involved with the child, provided that she may refuse to sign any particular consent or release, in which case, the society or the child may bring a motion for a ruling on whether such consent is to be provided, or may bring a motion for production of such non party information.

r) The child shall have no contact with her mother except such contact as is permitted within the limits of the access provisions of the court.

s) The child shall give the society 48 hours notice of her intention to move into the home of the grandmother N.R.

t) The mother, L.G. shall not have any contact with the child other than is permitted in the provisions for access in the order of this court.

u) The Children's Aid Society of Algoma shall use its best efforts to facilitate the grandmother's efforts to obtain more spacious and more suitable accommodations through the town's housing authority, including writing any letters that might be required or desired by such authority.

Access to and by M.

[46] There is still a formal claim by the society for an order for no access to the mother. The society, early in the trial evidence indicated that it was not advancing such claim but that it was content that an order be made for maternal access. At that time, it anticipated that M. would be placed in extended society care together with her siblings. It did not anticipate that M. might be placed in the care and custody of her grandmother. It was aware however, that M. (as well as her siblings) had claims before the court in the status review application for access by herself to her mother and to her siblings. OCL counsel advanced such claims at trial.

[47] A starting point for access is to recap what the mother's access is at present. Firstly, it is access that is still 'interim'. It was ordered by Justice Condon, and dates back to July 2016. She exercises 'in person' access with all three children each Sunday in Blind River for six hours. All visits are fully supervised by the society. The mother receives a $25 gas card weekly from the society to defray her transportation expenses. The mother has to arrange her own transportation to Blind River from Elliot Lake. It was exercised at and from the Best Hub, which I believe was a supervised access centre, but it is now closed due to the pandemic. I am not sure where her present access is exercised but suspect it is at the society's offices in Blind River. Part of her six hours of weekly access is also exercised in the community.

[48] As it is my intention to order maternal access by the mother (as access holder) to the child P., I believe that the child M. can participate in these visits and so spend time with her sister P. as well as with her mother. Accordingly, the mother's claim (as an access holder) for access to M. can be dismissed. In any event, the society submits that access between mother and any child be subject to the child's wishes. This does not at all mean that the time that M. and her mother spend together will be limited only to the maternal access time that her sister P. spends with her mother.

[49] The access claims that involve access between the mother and M. are only partly the claims made by the mother. M. also makes claims for access to her mother. I interpret these to be claims in which M. is the access holder. The CYFSA provides:

S.104 (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.

[50] M. has expressed wishes to spend more time with her mother. She has also expressed her wish that the society not supervise her visits or her contacts with her mother. The society, on the other hand, wishes to supervise the mother's visits with any and all of her children. In fact, it has done so since the children were apprehended.

[51] I had already expressed my feeling that the best interests considerations were more suited to determinations of care and custody than they were to determinations of access. The criteria for an access order are the paramount and other purposes of the CYFSA statute [s.1], the best interests test [s.74(30)], and the section dealing with the making of access orders [s.104].

[52] Consideration of section 1 shows that the statute advocates the best interests, protection and well-being of children. It also promotes integrity of the family unit, the least disruptive course of action, respect for a child's stable relationship within a family, a child's cultural and linguistic needs, and inclusion of participation of a child's parents and relatives, where appropriate. The society's position on access with respect to M. seems to focus only on protection, and specifically, protection from physical harm. In the case of M., I have discounted the protection concern for reasons stated above, and as set out in my Reasons after trial. The purposes of the CYFSA set out in s. 1 outbalance any protection concerns.

[53] The section 74(3) best interests circumstances include a number of considerations. First and foremost for M., are her views and wishes to which I have given substantial judicial weight. In addition, the circumstances in subsection (c) include among other things, a child's emotional needs, the child's level of development, the child's linguistic and cultural heritage, the importance of the child's development of a secure place as a member of a family, the importance of a child's emotional ties to a parent and siblings, the risk that a child may suffer harm by being kept away from a parent, and the degree of risk that justified a finding that the child was in need of protection. In considering all of these with respect to M. they far outweigh any concerns for protection from harm, especially physical harm. While M. is not going to be in the care and custody of her mother, she will have contact with her in the context of access. These considerations overwhelmingly favour an access order between M. and her mother.

[54] Section 104 permits the court to make an order respecting access by M. to her mother. It also gives the court a wide discretion to impose such terms and conditions on the order of access that the court considers appropriate. Appropriate, in my view, has to factor in the particular child together with her attributes, the child's mother, the history between them, and the circumstances in which they will be during the period of time that the access order will be operative.

[55] In the case of M., I make an order in which she is the access holder. In this order, she is access holder in her access to her mother L.G.

[56] With respect to conditions of such access, there are several aspects that require some explanation. These aspects include time, duration, location, transportation to and from access visits, supervision and by whom, type of contact, and who may be present.

[57] The access, and the conditions of access that I believe are appropriate to grant to M. as access holder for access to her mother are these:

ACCESS ORDER FOR CHILD M.

2. The order of Justice J.P. Condon dated June 22, 2016 with respect to the interim access of the mother to the child M., born [date], 2004 is terminated, the mother's claim for access to the said child is dismissed, and the child M., as access holder, shall have access to her mother L.G. commencing on the same day that the order for care and custody of M. with her maternal grandmother N. commences, such access shall be subject to the following:

(a) Subject to the mother's consent, by attending at any access visits of the mother with the child P. (and the child J. if he is also participating) that are arranged with the Society, provided that transportation of M. to and from the location(s) of such access shall be the responsibility of M.

(b) In addition to the access in (a) above,

(i) On one day in each week, access visits between 8:00 am and 8:00 pm at M.'s residence with her maternal grandmother present, and/or in the community of Blind River only from such residence, provided that access:

• may be supervised in the discretion of the society by the society or by a person approved of by the society
• shall be on 48 hours written notice by M. to the society by e-mail or text message including details of such access such as start time, location(s), duration, persons present, and activities planned
• shall end no later than 8:00 pm on the day of such access, and shall not include any overnight stays by the mother at the child's home.

(ii) On any day, between 8:00 am and midnight, by telephone, e-mail, text message, or via any digital means including Skype, Facetime, What's App or ZOOM, for unlimited durations, and may include M's brother J., provided that these are initiated by M., and provided that all of such access shall not be supervised by the society, nor shall it be on notice to the society.

(iii) The child M. shall provide to the Society her telephone number(s), her municipal address, her e-mail address as well as any subsequent changes to them.

Interim Access to Grandmother

[58] With respect to the urgent interim access claim sought by M.'s OCL counsel this claim may be somewhat moot as I am making an order for temporary care and custody of M. in favour of her grandmother. Although I did not intend to deal with that claim in these Reasons, it may be prudent to make some provisions in the event that M. decides to remain where she is until she finishes her school semester. In the event she chooses to defer relocating to her grandmother's home, I am prepared to make an interim access order in which M. is the access holder to her grandmother in the following terms:

INTERIM ACCESS ORDER FOR CHILD M. TO GRANDMOTHER

1. The child M. born [date], 2004, shall have interim access to her grandmother N.R. subject to the following conditions:

(a) The child will be the access holder;

(b) Such access will take place at the home of the grandmother or in the community of Blind River from the home of the grandmother;

(c) Such access will terminate when the child moves into her grandmother's residence;

(d) Such access will take place on such days that the child chooses and may include overnight stays at the grandmother's home;

(e) The child shall provide to the society 48 hours e-mail or text notice of the date, start time, end time and duration of such access visits;

(f) The child shall be responsible for transporting herself to the grandmother's home at the start of such visits, and the society shall be responsible for transporting the child back to her residence at the end of such visits, provided that alternative transportation arrangements may be substituted on mutual agreement of the M. and the Society;

(g) The society shall be free to supervise any or all of such access visits.

(h) The society shall provide to the grandmother N.R. 24 hours notice of its intention to supervise any visit.

(i) Such interim access shall commence on November 29, 2020.

[59] This interim access to M.'s grandmother is intended to allow a transition period in the event that M. chooses to finish her school semester from her present foster home. It will be M.'s decision how much time she wishes to spend with her grandmother, and is subject to the grandmother's consent to such wishes. I am aware that the residence is small, but the grandmother's evidence is that it can accommodate one grandchild as a visitor or as a live in grandchild. Hopefully the housing issue will resolve itself quickly.

[60] I thank counsel for filing their additional evidence and their submissions. I have taken into account their evidence and submissions filed on the urgent motions, as requested by them, in formulating these Reasons.

Released: November 26, 2020

Signed: Justice John Kukurin

Footnotes

[1] See Case Conference Continuation Memo of September 9, 2020, which was circulated to counsel following such conference convened by myself as trial judge.

[2] CYFSA S. 2(1) - "relative" means, with respect to a child, a person who is the child's grandparent, great-uncle, great-aunt, uncle or aunt, including through a spousal relationship or adoption.

[3] A.C. v. Manitoba (Director of Child and Family Services) [2009] S.C.J. No. 30, [2009] A.C.S. no 30, 2009 SCC 30, 309 D.L.R. (4th) 581, 240 Man. R. (2d) 177, 65 R.F.L. (6th) 239, 2009 CarswellMan 293 at paragraph [46] S.C.J.

[4] See CYFSA s.81(2) [issue of warrant], s.81(7) [removal of child without warrant] and s.77(1) [agreements with society by 16 and 17 year olds] and s.104(5) [no order for access to a child over age 16 without the child's consent].

[5] The society is required by Ontario Regulation 206/00 - Procedures, Practices and Standards of Service for Child Protection Cases to conduct an evaluation when it is apprised of a plan to place a child in the care of a person who is a relative of the child. This is informally called a 'kin assessment'. However the regulation sets out in s.7(2) a number of steps that a society must use its best efforts to complete. Step 6 provides:

6. A child protection worker or a person designated by the society shall obtain the consent of the proposed primary caregiver to a criminal record check.

The Regulation says nothing about any obligation of the proposed primary caregiver to obtain a police record check and providing it to the society.

[6] See Children's Aid Society of Algoma v. L.G., 2020 ONCJ 297 at paragraphs [156] to [179] and in particular from paragraph [174] and following.

[7] CYFSA S.102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[8] It is possible that society norms have changed. However, sixteen year olds are more often with their peers than with adults. They may spend more than four continuous hours with their friends. The restrictions the society seeks are too stringent.

[9] See Children's Aid Society of Algoma v. L.G., 2020 ONCJ 297 at paragraph [146].

[10] Subsection 105(7) requires the court to specify the access holder and the person to whom access has been granted, but this applies only in the case where the court makes or varies an access order with respect to a child who is in extended society care. The child M. is not in extended society care. However, s.104 permits the court to make an order respecting access by a child to a person. I interpret this to mean that the child is an "access holder" and I use this terminology with respect to M. and her access to her mother.