WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication.
Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
87(8) Prohibition re identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
87(9) Prohibition re identifying person charged.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.— (3) Offences re publication.
A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Date: 2020-11-29
Court File: Elliot Lake File No. 16/11
Between:
Children's Aid Society of Algoma Applicant
— AND —
L.G. M.H. R.C. (Added Party)
Respondents
Before: Justice John Kukurin
Heard on: Written submissions
Reasons for Judgment released on: November 29, 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.C.
- Andre L Berthelot — counsel for the Office of the Children's Lawyer, legal representative for the children
Reasons for Judgment
Kukurin J.:
[1] 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 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 youngest child P.
[2] Continuation of Trial
[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 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 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 Sept 9, 2020.
[3] Outstanding Issues
[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 (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 to all three children 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 Sept 13, 2020 (OCL motion) and Sept 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 Sept 9, 2020 following which I gave directions for completion of trial by way of affidavits and by written submissions from counsel.
PLACEMENT OF THE CHILD "P"
[4] Initial Placement Determination
[5] In my Reasons after trial (released June 11, 2020), I concluded that the child P. could not be returned to the care and custody of her mother even with a supervision order with conditions. As there was no other viable placement option put forward by anyone, I concluded that she should be placed in extended society care (ESC). No order was made to that effect for the reason that an ESC placement did not represent the totality of the decisions that were necessary in the case with respect to the child P.
[5] Outstanding Access Claims
[6] What remained was a decision on access. There were several claims relating to P. that involved access:
(a) The society's claim that there should be an order of no access in favour of P.'s mother to P., since superseded by a society concession to the contrary.
(b) The claim by M. and J., the siblings of P., for sibling access in their favour to P.
(c) The claim by P. for access to her mother, to her siblings and to her maternal grandmother N. (hereafter referred to simply as the grandmother).
[7] The society did not officially withdraw its claim for no access to the mother, but it did indicate early in the trial evidence that it was conceding that there should be an order for access in favour of the mother to P. (and to the other two children as well). It is a reasonable assumption that the society did so anticipating that the children would all be placed in extended society care. The decision with respect to the child P. will, in fact, place her in extended society care.
(a) Statutory Provisions Relating to Access
[8] The Child, Youth and Family Services Act (the CYFSA) provisions that relate to access to or by the child P. are in sections 104 and 105. These provide:
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.
S.104 (2) Where a child is in a society's care and custody or supervision, the following may apply to the court at any time for an order under subsection (1):
- The child.
- Any other person, including a sibling of the child and, in the case of a First Nations, Inuk or Métis child, a representative chosen by each of the child's bands and First Nations, Inuit or Métis communities.
- The society.
S.105 (4) Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), any order for access made under this Part with respect to the child is terminated.
S.105 (5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child's best interests.
S.105 (6) The court shall consider, as part of its determination of whether an order or variation would be in the child's best interests under subsection (5),
(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and
(b) if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption.
[9] To summarize these provisions, what is clear is that almost anyone can apply for an order with respect to access. The court can order access to the child by another person, or it can order access by the child to another person. The court can make, or vary, an order of access at any time. Any access order that the court makes must be made in the best interests of the child. Where the child is placed in extended society care, all prior outstanding access orders made with respect to the child in the child protection or status review proceeding are terminated. If an order for access respecting the child is made by the court that places a child in extended society care, that order must be made in the best interests of the child. In addition to the best interests circumstances listed in s.74(3) CYFSA, the court has to also consider as part of its best interests determination, whether the relationship between the child and the other person involved in the access order is beneficial and meaningful to the child, and, if considered relevant by the court, whether the child's future opportunities for adoption will be impaired by an access order.
[10] While the foregoing represents quite a list of applicable provisions, they are relatively new (since April 2018) when the CYFSA took effect. Prior to that time, different provisions applied to access respecting a child in extended society care (or its equivalent under the old statute – crown wardship). As expected, there has been some, but not a prodigious amount of case law that has evolved as a result of these changes.
(b) Effect of Consent to Access Order
[11] The parties in this case in which P. is the subject child are the Society and the mother. The named father is not the biofather of P. and is technically not her parent and not a party even though named as such in the title of the proceeding. The maternal aunt has withdrawn all of her claims and is not participating, although still technically a party. The child P. is also not a party, but by virtue of having legal representation, is entitled to participate 'as if she was a party'. What this expression means is still evolving but the applicable provision is:
S.79 (6) A child who is the applicant under subsection 113 (4) or 115 (4) (status review), receives notice of a proceeding under this Part or has legal representation in a proceeding is entitled to participate in the proceeding and to appeal under section 121 as if the child were a party.
[12] The society and the mother agree that an order for access respecting the child P. should be made. They emphatically do not agree to the details of the access that the court should order. The child P. also agrees, and in fact seeks an access order herself. Those facts, unfortunately are not all that is statutorily required before the court can make an access order. The court cannot just say that everybody consented, so an order will be made. The court is still bound to consider the statutory pre-requisites in paragraph [8] above. Moreover, the court is also required to give reasons for making the order. This requirement in s.97(1) CYFSA sounds more like it applies to a placement decision. However, a close reading will confirm it also applies to any order, including an order for access. Also, it requires the court to give a "brief statement" of the evidence underlying its decision for making the access order.[1]
[13] The consent of all parties and/or counsel does not require the court to make an order in accordance with that consent.
(c) Reasons for Granting Access
[14] The court is prohibited from making an access order to a child it places in extended society care "unless the court is satisfied that the order or variation would be in the child's best interests". The best interests of P. are the criteria to make this determination. The evidence presented by all of the parties, and OCL counsel for the children favours making an access order.
[15] Taking the circumstances set out under s.74(3) that are relevant in this case,
(a) – P.'s views and wishes clearly express a desire for parental and sibling access
(c)(i) – P.'s primarily emotional needs favour an access order. She has continued seeing her mother and siblings for over six years at access visits and still looks forward to them. The society's argument that travel for access visits detract from the child P.'s physical, mental and emotional needs, and that weekly access would potentially be counter productive to P.'s academic progress because she would be tired out by so much traveling and so much time visiting family has some merit. The access the court orders with respect to P., if any, has to factor in this concern.
(c)(ii) – P. is age 10 and still considers herself a daughter and sister and a grandchild and is a member of a family that includes these other individuals with whom she has relationships that she values and wants to foster. The fact that P. will not be residing with her mother does not change the fact that they are daughter and mother, and in absence of any adoption, will continue to be. Access is the only way to preserve that relationship. P. has had over six years to develop as a foster child.
(c)(iv) – Culturally and linguistically, P. is French Canadian, appears to be bilingual and shares her francophone roots with her birth family, a sharing she can exercise only in the context of access.
(c)(v) – This circumstance is inferentially of some importance to P. She knows who her birth family members are and definitely craves a positive relationship with all of them, a yearning that as a child in ESC, she can only foster through access.
(c)(vi) – P. retains emotional ties with her mother, her siblings and her grandmother. She clearly wants these to continue so they must be of importance to her.
(c)(vii) – Continuity of care is very critical for P. Her foster care family appears to be the most suited to provide for her particular needs. It should not be disrupted. On the other hand, her contacts to her mother and siblings (and occasionally her grandmother) has been ongoing for most of her life, and similarly should not be disrupted. I agree with the society's argument that other methods of contact, aside from face to face access visits between P. and her family should be utilized, especially in the present technological age and in these pandemic times.
(c)(viii) – The society's plan as set out in its Plan of Care for P. may not be current. However, it was, and may still be for no access to P. by her mother. So far as I can recall, the society had no position in its Plan of Care for any sibling access. Nor is there presently any proposed adoption on the horizon for P. In short, the society's plan is for P. to remain in her foster home placement presumably until she becomes an adult and times out in society care. An access order would preserve P.'s contacts with her birth family, an ingredient that the society has not shown would detract from its plan for P., and which P. has expressed she wants to be continued.
(c)(ix) – I agree that delay in disposition can only have negative effects on the child P. This case has gone on far too long. The placement I propose for P. is no longer a secret. But the disposition also includes access. It makes no sense to delay a decision on access.
S.105(6)(a) – Whether the relationships between P. and her mother, and between P. and her siblings and grandmother are "beneficial and meaningful" now require a different approach under the CYFSA than under the CFSA. The Ontario Court of Appeal in the 2020 Children's Aid Society of Toronto v. J.G. decision[2] confirmed that decisions on access for children in extended society care should apply a "new access test [that] now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child." It should "consider all relevant factors …. whether past, present or future." The CYFSA "must be liberally construed to the benefit of the child." The court considering an access order must consider the child's overall best interests and the "overall best interests involve a consideration of the 15 articulated factors plus any other circumstance of the case that the person [deciding the case] considers relevant". In the circumstances involving the child P., in making the determination in s.105(6)(a), I consider P.'s historical relationship with her birth family members, her history as a child in care, P.'s personal characteristics, her wishes with respect to access, the society's history of exercising its discretion, and the actual decisions it has made with respect to access relating to P., the plans of the society to have her access with her mother limited to the society's "norm" for ESC children of 3 hours per month, the society's ostensible plan that P. will live in her foster home in its present location, but not be adopted.
I do also take into account that all parties, and OCL counsel, agreed that an order respecting access relating to P. should be made. I conclude, based on the evidence presented in this case, that the relationship between P. and her mother and with her siblings, and to a lesser extent, her grandmother are both beneficial and meaningful to P.
s.105(6)(b) – I cannot conclude that any access order that the court may make with respect to P. will impair her opportunities for adoption. There is no current plan for adoption; on the contrary, the plan is long term foster care. This is not relevant as a consideration.
[16] The inescapable conclusion is that access with respect to the child P. should be granted taking into account the now revised best interests considerations of the CYFSA.
(d) Details of an Access Order
[17] As mentioned above, the society changed its position on access at trial. Whether access should be ordered or not is the tip of the proverbial iceberg in decisions with respect to access. By far the more contentious issue is deciding how to describe access in a court order. By this, I mean the details of the ordered access. This can involve setting out the discretion given to a society to determine any such details, or setting out such details in the wording of the court order, or, an intermediate position that sets out minimum details and still provides to the parties discretion to change the details within the parameters of the minimum details.
[18] The details that can be set out in an order respecting access are:
- the access holder and the access recipient
- the manner in which access is exercised (i.e. face to face/ telephone/ text)
- whether it is supervised, in whose discretion, if any, and by whom
- the time(s), frequency and duration(s) of access visits
- the location(s) of access visits
- who beside the access holder and recipient may be present for access visits
- the transportation arrangements - responsibilities to and from access visits
- the responsibility to initiate access visits that are virtual, digital or remote
- the conditions that apply on access participants (e.g. Covid-19 precautions)
[19] The society requests that access between P. and her mother be worded so that the society has discretion to determine whether such access is supervised, by whom it may be supervised, to determine ("approve") the location of access, and that the society is given the right to approve the "form" of such access. By "form", I gather the society means the time, frequency, duration, other participants, and possibly transportation responsibilities. The only other details are that the access be on reasonable notice and that the access be 'arranged' by the mother (I take this to mean the "access holder") with the society. In addition, in this case, the society wants specific conditions to be imposed by the court on the mother. These conditions are partially generic and partially specific to the concerns in this case to the child P. One, at least, is prohibitory with respect to posting photos, videos or information with respect to P. on any social media without the society's consent. It also wants all maternal access to be subject to the child's wishes.[3]
[20] This position is contrasted to the position of the mother, which appears to seek access to the child P. every second weekend at the grandmother's home, supervised by the grandmother, from Friday 5:00 pm overnight to Sunday 5 pm, with conditions that she comply with COVID precautions and that P. not have any contact with G.D., the individual the society alleges overdisciplined P. and her siblings.[4]
[21] The society's position is also contrasted with the position put forward by OCL counsel for all three children, that the mother and grandmother have access to P (and to her siblings M. and J.) every fourth weekend, from Saturday at 11:00 am to Sunday at 6:00 pm at the grandmother's home, supervised by the grandmother, with no supervision by the society except for unannounced visits, and subject to conditions that G.D. not be present for any access, that the mother not stay overnight, that the maternal aunt and Mr. Ro.C. not be left in a caregiving role, that all shall wear face masks, and that the society co-operate with the grandmother in any needed transportation arrangements.[5]
[22] The foregoing deal primarily with the mother's access to P. They peripherally deal with the grandmother's access to P. even though I see no claim made by the grandmother for access to any child. As to sibling access, the only submissions are that the society would maintain relationships between siblings, encourage telephone and electronic contact and arrange in person contact when the opportunity arose. It also indicated that the children would see each other at access with their mother, which it proposed take place once per month for a duration of three hours. The mother made no submissions on sibling access. Neither, surprisingly did OCL counsel as this was the source of the claim.
(e) Access by the Mother as Access Holder to P.
[23] I reject the society's submissions on the mother's access to the child P. I do this for the following reasons:
[24] Firstly, the society has had P. in society care for over six years. In that time, it has moved P. to a foster home in Dean Lake which I gather is 80 kilometres from Elliot Lake and 14 km (a 15 minute drive) from Blind River. It immediately created a geographical difficulty in access between the mother and P. While it arranged for this access to take place in Blind River, and it gave the mother gas expenses, this still required the mother to find transportation as she did not drive and there is no bus transportation out of Elliot Lake. Elliot Lake is where P. lived before she was removed and where the mother now lives. Anecdotally, the society placed M. and J. in foster homes in Iron Bridge (56 min – 83 km) and then Thessalon (1 hour 16 min) and most recently placed J. in Echo Bay (1 hr 50 min) away from Elliot Lake.[6] The society does not say why it placed these children where they did other than that is where they were placed on an earlier apprehension. A more reasonable foster home placement would be where they resided with their mother. As far as the logistical problems presented by distance and travel time, it was the society that made these foster placement decisions.
[25] Secondly, the Society chose to supervise all of the mother's access for over six years and continues to do so. It has not budged from this supervisory decision and, so far as is known, all access supervision has been done by society employees. This despite the fact that the children have grown six years older in this time.
[26] Thirdly, the society has known throughout all this time that the wishes of all three children have been consistently to return to their mother's care, to have more and less restrictive access to her, to have contact with their grandmother and to have less society involvement in their lives. Notwithstanding this, the society did nothing to accommodate the wishes of the children, did not accede to their wishes and, in fact, opposed their wishes.
[27] Fourthly, the Society has consistently advocated for less access, for more restricted and controlled access, has sought to extinguish access, and has opposed any claims to the contrary. The society exercised the discretion granted to it by the court in 2014 to minimize the mother's access and it was not until the order of Justice Condon of July 22, 2016 that the maternal access was expanded to not less than 24 hours per month, including not less than 3 hours per week, and the location was to also include the community outside of the Best Hub (access facility in Blind River). The society was clearly not happy with this specification of access and is once again attempting to reduce and restrict it. It has, for the most part, allowed what Justice Condon described as the minimum, as the maximum it permitted.
[28] Fifthly, the society states that the "norm" for access relating to a child in ESC is three hours per month. There is no statutory provision that supports such statement. Nor am I aware of any jurisprudence that supports such statement. This appears to be a policy decision made by this society and the court can only speculate that it is founded less on the criteria of the best interests test considerations for an ESC child, than on the convenience and cost to the society. In fact, current appellate case law[7] confirms that the "form and frequency of access should be tailored to the child's specific needs and age-appropriate wishes". Or as phrased by Justice Sager in her 2018 decision in KB,[8] "one can assume, on the well accepted principle in cases involving children that one size does not fit all." These judicial sentiments sound unlike the practice of applying a norm, especially one with no evidentiary foundational support.
[29] In summary, the society, from its history with its decisions relating to access in this case, and from its plan presented in its evidence and submissions, cannot be relied upon to exercise any discretion it may be given by the court, in the manner directed by the current statute or suggested by the developing case law.
[30] Discretion judicially granted with respect to access determinations are primarily to allow a society to adjust what access it permits to take into account changes in circumstances. I agree that the courts should not be referees between societies and parents in everyday access disputes. However, where a society has shown it is not willing to make adjustments, the best way to structure access is to set minimums and leave as little discretion as possible.
[31] With respect to P., and her mother's access to her, the court must keep in mind that P. will be in extended society care. This impacts access determinations. As put by Justice Sherr in [Children's Aid Society of Toronto v. R.S.][9], at paragraph [274]:
"The jurisprudence has established that there are qualitative differences in the amount of contact a party will have with the child before and after an extended society care order is made, The granting of an extended society care order means the end of any effort to return the child to the parent's care. Part of the reason for access prior to an extended society care disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After an extended society care disposition, the access is simply to preserve a form of the relationship that has shown a positive benefit for the child. See: Native Child & Family Services of Toronto v. J.E.G., 2014 ONCJ 109; Children's Aid Society of the Region of Peel v. A.R.; Children's Aid Society of Toronto v. Y.M., 2019 ONCJ 489."
[32] I find that it is important that the access involving P. and her mother be granted to the mother rather than to P. Should access be sought to be varied in the future, then the logical protagonists in that dispute should be the mother and the society rather than the society and the child. The child P. will participate in any event.
[33] I do not believe that one access period once per month for three hours is sufficient to maintain the relationship that P. currently has and historically has had with her mother. While P. will be a child in ESC, she is not a child that will likely be adopted. She and her mother have an existing relationship that is implicitly acknowledged by the society to be both meaningful and beneficial. It does not come close to P.'s wishes for access.
[34] In considering the access that the mother will have to P., I must keep in mind that the world is in the midst of a global pandemic created by the COVID virus. Currently, we are in the second and, historically speaking, the most deadly wave of that pandemic. Of all that is known, the most ominous is that it is spread primarily through the air we breathe. Masks and social distancing are the most often recommended methods of inhibiting the spread. Both of these methods are inimical to a healthy and enjoyable access visit, especially with others that are loving, affectionate and otherwise absent family members and relatives. However, the reality is that so long as the pandemic is among us, the parties will have to restrain their conduct to stay within the limits that caution demands. The reality is that the mother, the child P., her grandmother, her siblings all have their own individual surroundings that they frequent, any one of which may be contaminated with a COVID virus that they can contract and unwittingly bring to an access visit. Adhering to the directives of the Public Health Agency of Canada and Ontario Public Health will be a condition of any access ordered. Any non compliance will risk a change or perhaps cancelation of access until COVID is no longer such a threat.
(f) The Access Order for Child P.
[35] The order I make with respect to the child P. is the following:
1. The order of Justice J.P. Condon dated June 22, 2016 with respect to temporary care and custody of the child P.G. born […], 2010 is terminated and the said child is placed in Extended Society Care with the Applicant Children's Aid Society of Algoma.
2. The mother, L.G. shall have access to the child P.G. subject to the following terms and conditions:
a) In person access shall take place twice per month
i) on a weekend day chosen by the mother and the society failing which it shall be the first Saturday and the third Sunday of each month,
ii) for a duration of six hours for each visit, such hours to be agreed upon by the mother and the society failing which it shall take place between 12:00 noon and 6:00 pm
iii) One such visit shall take place at the home of the maternal grandmother and the other shall take place at a location in Blind River, the choice of which shall be the society's, provided that on consent of the mother, the society and the child P., such access may partially or fully occur in the community within the boundaries of Blind River;
iv) During such access visits, the following persons may also be present: the grandmother and the child's siblings M. and J.
v) Transportation of the child P. to and from the location of any access visit shall be the responsibility of the society.
vi) Transportation of any other participant in the access visit shall be the responsibility of such participant
b) The Society shall have the right to scheduled and unscheduled visits to any location where the child may be having an access visit, including the grandmother's home.
c) The Society shall have the right to supervise any part of or all of such access, provided that it gives to the grandmother 24 hours notice of its intention to do so within the grandmother's residence.
d) All such in person access may be cancelled for good reason only, by either the mother, the society or the child P. on 12 hours notice by the person canceling to the others, provided that makeup access is substituted for such canceled access.
e) During the mother's exercise of access to the child P., the mother
i) shall follow all reasonable recommendations of the Society during access visits with the child;
ii) shall not during access, permit G.D. to be present or have any contact or communication with the child and shall remove the child from any location where G.D. may be found;
iii) shall not during access, 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
iv) shall follow the directives of the Public Health Agency of Canada and Ontario Public Health as it relates to COVID-19 during any visit with the child;
(f) In addition to the in person access set out above, the mother shall have access to the child P., on any day, between 12:00 noon and 8:00 pm, by telephone, e-mail, text message, or via any digital means including Skype, Facetime, What's App or ZOOM provided that these are initiated by the child P., and provided that
i) all of such access shall not be supervised by the society, nor shall it be on notice to the society;
ii) such access may include P.'s siblings, M. and J.;
iii) the Society shall ensure that the child P. is provided with at least a telephone having long distance capability.
(g) The child P., as access holder, shall have access, on any day, between 12:00 noon and 8:00 pm, by telephone, e-mail, text message, or via any digital means including Skype, Facetime, What's App or ZOOM to any one or more of her siblings M. and J. and to her grandmother N.R. provided that
i) these are initiated by the child P.,
ii) any persons over age 16 years consent to such access;
iii) the Society shall ensure that the child P. is provided with at least a telephone having long distance capability.
[36] The foregoing is meant to mesh with the placement provisions and the access provisions that I set out in separate Reasons that apply to P.'s sister M. These provisions are admittedly not going to work well in the grandmother's present residence, but hopefully, she will have larger accommodations shortly. The end result of the provisions with respect to P. is that the society will have reduced the access from six hour visits each Sunday to six hour visits two weekend days each month. However, what has been added is telephone and electronic access that can be much more frequent and can include more family members. It also places more control over access in the hands of the child. It also addresses protection concerns and gives the society supervisory rights that it wishes to retain. This access order with respect to P. is different than an access order with respect to her siblings. They are time limited. The order relating to P. is not. Extended Society Care has no automatic one year maximum nor does it have any automatic review provisions. The access order attaches to P. as an ESC child.
[37] I am indebted to counsel for their supplementary evidence and supplementary submissions, all of which were helpful in arriving at this order.
Released: November 29, 2020
Signed: "Justice John Kukurin"
Footnotes
[1] S.97 (1) Where the court makes an order under this Part, the court shall give,
(a) a statement of any terms or conditions imposed on the order;
(b) a statement of every plan for the child's care proposed to the court;
(c) a statement of the plan for the child's care that the court is applying in its decision;
(d) reasons for its decision, including,
(i) a brief statement of the evidence on which the court bases its decision, and
(ii) where the order has the effect of removing or keeping the child from the care of the person who had charge of the child immediately before intervention under this Part, a statement of the reasons why the child cannot be adequately protected while in the person's care.
[2] Children's Aid Society of Toronto v. J.G. [2020] O.J. No. 2822, 2020 ONCA 415 (Ont CA)
[3] The conditions sought by the society are with respect to the mother's access to P (as well as to M and J) and are the following:
a) The mother shall follow all recommendations of the Society during access visits with the children;
b) The mother shall not permit G.D. to be present or have any contact or communication with the children during access;
c) The mother shall, during her access, remove the children from any location where G.D. may be found;
d) The mother shall not use any form of physical discipline or corporal punishment on the children during access;
e) The mother shall not permit any other person to use any form of physical discipline or corporal punishment on the children during access;
f) The mother shall follow the directives of the Public Health Agency of Canada and Ontario Public Health and the Society as it relates to COVID-19 during any visit with the children;
g) The mother shall not post any photos or videos or any information about the children on any social media without the prior expressed consent of the Society; and,
(h) All access shall be subject to the wishes of each of the children
[4] The mother's position on her access to P is inferred from her affidavit sworn Sept 25, 2020 in particular paragraph [7]. She made no written submissions, which the court permitted her to do.
[5] OCL counsel's position with respect to access relating to the child P are not well compartmentalized. The position put forward on access seems to lump claims made in the interim motion by the children and the access claims made in the application. For example, OCL counsel suggest that the mother and grandmother should have access to the children. Nowhere
[6] Distance and travel time sources from Google Maps
[7] See OCA decision in Children's Aid Society of Toronto v. J.G, supra at paragraph [64]
[8] Jewish Family and Child Service of Greater Toronto v. K.B. [2018] O.J. No. 4918, 2018 ONCJ 650 (Sager Ont CJ) at paragraph [141]
[9] Children's Aid Society of Toronto v. R.S. [2019] O.J. No. 6149, 2019 ONCJ 866 (Sherr Ont CJ)