WARNING

The court hearing this matter directs that the following notice should 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.

(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.

(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.

ONTARIO COURT OF JUSTICE

DATE: August 27, 2021 COURT FILE No.: C146/19

BETWEEN:

Family & Children’s Services of Guelph and Wellington County Applicant,

— AND —

C.R. Respondent,

J.H. Respondent.

Before: Justice S. Bondy

Heard on: July 23, 2021 Released on: August 27, 2021

Counsel: O. Rebeiro ………………. Counsel for the applicant, Family & Children’s Services of Guelph and Wellington County J. Krashinsky ………………………………………… counsel for the respondent, C.R. M. Poole ……………………………………………….. counsel for the respondent, J.H.

BONDY, J.:

RULING ON STATUS REVIEW PROCEEDING BY SUMMARY JUDGMENT MOTION

Background:

[1] These Reasons are further to my findings in Family & Children’s Services of Guelph and Wellington County v. C.R., 2021 ONCJ 346.

[2] On July 23, 2021, I conducted a mini-trial in these proceedings which I directed be completed. On the return of this matter I heard the oral evidence of the Mother in addition to an updated Affidavit, sworn July 19, 2021, received the evidence by letter of R.K., a registered art therapist who had worked with the child, “G”, received the evidence of S.F., a clinical counsellor with F.T.P., who had provided counselling to the Mother, received the evidence by letter of L.M., a counsellor with K.C.Y.F.S. who had provided counselling to both the Mother and “G”, and the evidence from N.L.P.M. relating to Bible study courses undertaken by the Father while he remains incarcerated. I was also asked to re-review the Affidavit of W.S., sworn March 9, 2021, the assigned family services worker with this matter.

[3] Paragraphs [49] through [52] of my Ruling detailed why I directed a mini-trial and my areas of concern. I wanted three main areas clarified before I made any finding in this matter. They include:

i) Is the child’s ongoing aggression and his fearfulness of his Father resolved or not?; ii) What does the Mother’s therapist have to say about her ability to protect her child from the risk of emotional and/or physical harm by the Father?; and iii) What type of risk, if any, does the Father present to the child and has his in‑custody counselling or therapy ameliorated that risk?

[4] My Ruling identified the test before me on this Status Review proceeding:

1. Whether the child is or is no longer in need of future protection and as a consequence requires a court order for his or her protection; and
2. Which of the available range of orders is in the best interests of the child.

[5] At paragraph [52] of my Ruling I said, “put succinctly, I find the question is whether the child remains in need of protection AND whether an order under the Children’s Law Reform Act will protect his interests as opposed to continuation of the order of supervision under the Act.”

[6] My previous Ruling details the orders sought by the various parties to this Status Review Application and the historical and current factual background before me.

The evidence on the mini-trial:

[7] The mini-trial evidence reveals the following:

[8] C.R. has completed counselling at both F.T.P. and K.C.Y.F.S. According to the reports filed, C.R. completed 15 clinical counselling sessions with her clinical counsellor at F.T.P. from November 26, 2019 to December 7, 2020. Initially, she was demonstrating anxiety and shame for the abuse she subjected her son to; overall, however, she is described as actively participating in the counselling offered, showed consistency, commitment and effort to achieve her therapeutic goals. She worked at getting “G” connected with art therapy. At the close of counselling she was demonstrating better sleep patterns, a better understanding of herself, better able to identify triggers for abuse and abusive relationships, and a better understanding and knowledge of her own self‑worth. On the whole, she was better able to understand her own behaviours and her son’s behaviours and resisted resorting to self-blame.

[9] As for K.C.Y.F.S., she attended 8 individual sessions addressing parenting issues related to rules, expectations and boundaries for “G” and the importance of a stable and safe environment for him. She also attended 5 additional sessions with “G” learning about parent and child strategies for emotional regulation for “G” and improving one’s understanding of feelings and how it affects behaviour.

[10] “G” also attended art therapy by virtue of the Ministry of the Attorney General’s Quick Response Program to help him process the domestic violence he witnessed in his home and his separation from his Father. Three main goals to this counselling included building a therapeutic relationship with the counsellor, developing self-regulation skills for “G” and building self-esteem and self-efficacy in “G”. According to his art therapist he did well regarding these goals and was well engaged in the process. There was a break in his therapy due to the COVID crisis and as such, the therapist could not speak to “G”’s feelings regarding his relationship with his Father. His therapist thinks “G” may benefit from more art therapy and he recommends that if “G” has spent a significant amount of time away from his Father, he may need time to rebuild and repair that relationship in a therapeutic process.

[11] J.H.’s materials related to his Bible studies reflect that he completed 23 correspondence courses with an average mark of 95%. According to L.J., the Office Manager at N.L.P.M., J.H.’s progress indicates he has put great effort into his studies. She could not speak about his character or provide a deeper support letter for him due to Ministry’s policies.

[12] C.R.’s oral testimony was revealing. She spoke about her family abuse prior to her past with J.H. and indicated that using meditation and keeping a journal were helpful tools to relieve her anxiety, sleeplessness and breathing issues. Through counseling she confirmed what her therapist indicated: she has worked on addressing her self-blaming thoughts and has made progress in understanding herself more, healthy relationships and the importance of keeping “G” away from abuse. She spoke to the supports she put in place when she first separated from J.H.: i.e. shelters, courses, counselling for herself and “G” and seeking financial stability for the two of them. As for “G”, she tries to provide a non-aggressive home, with no fighting or hitting. “G” has ongoing aggression problems according to her: he screams, calls names, lashes out at her and this can happen as much as three times weekly. His behaviour depends on his day and he will “break down” if she says “no” or he is unable to get something he wants. She wants to continue counselling for “G”. As for herself, she knows how to contact her counsellor and her mother and sister are a support system to her, should the need arise.

[13] She is clearly fearful of J.H. and his past abuse to her and its impact on “G”. She is concerned that despite the Order of probation upon his release from custody, J.H. will not comply and he will use his best efforts to locate where she and “G” live. She thinks this will likely happen through J.H.’s mother. She feels she will need to put measures in place that “G”’s grandmother’s access is in the public or be supervised by her Mother or sister. Currently, she has measures in place at the home she shares with “G”: he is not allowed to answer the door by himself or approach strangers, she has safety cameras at her residence outdoors and an access feed inside though cellular link, she has a specific high risk officer assigned to her case and she has his telephone number and the number for Victim Services. She may have to change her telephone number which she gave to J.H.’s mother as he used to constantly contact her. “G”’s school has been notified that he is not to be released unless it is C.R. or her mother.

[14] Mr. Poole, counsel for J.H., enquired whether “G”’s mother was seeking a behavioural assessment for him. She said she was. She reiterated that she is concerned that J.H. will breach the non-association terms to his probation order yet she is supportive of a relationship between “G” and his Father if it is safe and positive. She acknowledged that J.H. was not violent per se with “G”, that historically she was “G”’s caretaker and she didn’t leave “G” alone with his Father when they were together. She described J.H.’s relationship with “G” as a priority to his Father but cautioned that he also liked his online games. Her biggest worry is that J.H. will abscond with “G” which is something he has threatened to do. His access needs to be supervised, she said. Access terms and contact numbers between “G” and his Father would need to be strictly monitored, she thought.

[15] To repeat, a re-review of Ms. S’s Affidavit demonstrates that she has no concerns regarding household conditions or cleanliness of C.R.’s home. She has observed no concerns as to how the Mother and “G” interact. She describes “G” as struggling to follow direction or listen and being “hands-on” with other students. She deposes that J.H. was incarcerated in October of 2019 and to the best of her knowledge they have had no further contact since then. According to Ms. S., “G” has not expressed a wish to see his Father. I cannot tell from that whether she tried to ascertain his views and preferences or if she actually asked “G” that question. I would note that not expressing a wish and interviewing “G” to ascertain his views and wishes are two different things.

[16] “G” told Ms. S, to repeat once again, that his Dad was always fighting with his Mom and this was scary. At paragraph 20 of her Affidavit, she details what the Mother previously told her about the impact of “G”’s upbringing on him and the abuse he likely witnessed. On July 8, 2020, she opined that “G” became more dysregulated and frustrated with the task before him; all around the time the topic of his Father was raised. I have previously detailed what C.R. relayed to Ms. S. about “G”s witnessing his Father’s abuse to his Mother, the violence he saw, there was escalating behaviour, yelling at “G” and attempts by his Father to tell him that he did not see what was happening before him. I refer to paragraph 23 of her Affidavit.

The Law on Continued Protection Finding and Protection Orders:

[17] To repeat what I said in my previous ruling, the test on a Status Review is twofold. It starts with the question whether a child remains in need of protection. This test was articulated in Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] S.C.J. 37. This two-step test exits despite amendments to Ontario’s child protection legislation suggesting that amendments may have resulted in a shift from the two-step C.M. test to a pure best interests test. See Children’s Aid Society of Oxford County v. W.T.C., 2013 ONCA 491, [2013] O.J. No. 3438 (O.C.A.).

[18] I have addressed the issue of the relief sought by “G”’s Father on this Summary Judgment Motion. His concern seemed to be the issue of proceeding at this time and by way of Summary Judgment, I have declined his request to order a full trial on the merits and instead I directed a mini-trial and a focused hearing on certain issues that I identified. The question left unanswered is what to do with the visitation or access that he seeks as that appears to be the relief he is seeking in his responding materials on the Motion.

[19] The statutory guidance on this Status Review proceeding is found in ss. 113 and 114 and by reference ss. 101, 102, 104, 105, 106, 107 of the Child Youth and Family Services Act, hereinafter described as “the Act”. Section 74 (2) of the Act defines when a child “is in need of protection”. Section 74 (3) defines what is meant by the term “best interests”.

[20] I note that s. 114 provides that on a Status Review, the court may, in the child’s best interests, vary or terminate the original order made under s. 101(1) including a term or condition for access that is part of the order; terminate the original order on a specific future date, make a further order or orders under s. 101 or make an order under s. 102. The court must, for the reasons I previously articulated, determine whether the child is or remains in need of protection and then apply the dispositional sections of the Act. The request before me is to make an order under s. 102 which is the deemed custody provision of the Act. I also have the option of terminating the previous supervision and access orders of Justice Caspers of June 23, 2020 or varying it or making a further order for interim or extended Society care. No one is seeking an order of interim care or extended Society care in these circumstances. That leaves me with the option of continued Society supervision or termination with a deemed custody order and the question of J.H.’s visitation.

[21] In Children’s Aid Society of Algoma v. A.B., 2018 ONCJ 831, Justice Kukurin provides a very useful overview of the dispositional options afforded under s. 101 and 102 and the criterion between choosing a protection order and a deemed custody order. His comments are equally applicable to my options under s. 114 of the Act. I will summarize his findings related to the issue of a protection order and deemed custody order which are found at paragraphs [23] through [30] of his decision and which bear repeating:

(a) Section 101(1) involves the making of protection orders including placement orders subject to Society supervision, interim or extended society care and consecutive orders of interim society care and supervision; (b) Section 102(1) orders offers a further alternative, namely a custody order. This removes the child from the child protection arena and removes the Society from further involvement. The thinking behind this option seems to be that, if the child is in the custody of a suitable person or persons, the protection concerns that led to the finding that the child was in need of protection no longer apply, and there is no further need for the society to be involved from a protection standpoint; (c) The Section 102(1) order is deemed to be an order made under the Children’s Law Reform Act, which is a domestic provincial legislation and can be subsequently terminated, varied or modified under that statute without society involvement. The deeming provision applies equally to access orders made at the time of the custody order; (d) The only criterion in choosing between a protection order (i.e. supervision, interim or extended care) and a deemed custody order is the finding that “it would be in the best interests” to make the deemed custody order instead of a protection order; (e) Determining whether the protection or deemed custody order is in a child’s best interests is a question of distinguishing between two choices necessarily made “in the best interests of the child”. To Justice Kukurin the choice was much like being presented with two suits, each of which claims to be the best, and if “being the best” is the criterion, and both are best, then he queried how one could make a logical choice between the two; (f) A deemed custody order may provide more permanency which is a desirable objective of the Act; and (g) A deemed access order leaves the matter of parental access to be resolved either by a domestic family court by way of application or by consent of the parties/parents.

[22] His Honour’s decision also provides a very useful comparative analysis of the factors to be applied in electing to proceed with a protection order or a deemed custody order. I intend to apply his same analysis to this case.

Analysis:

[23] First, I must make a finding of whether or not “G” continues to be in need of protection. That is a prerequisite to any Order I make. Having perused the Society’s materials filed on the original return of the Summary Judgment Motion and the mini-trial, I find the relief sought states that the Society has ongoing protection concerns related to the Father but none regarding the Mother. I must adjudicate on this issue before I turn my mind to the issue of a protection order or a deemed custody order.

[24] I find there is ample evidence to support that continued finding on the record before me pursuant to s. 74(2)(h) of the Act. I will address that finding in a subsequent paragraph.

[25] As for section 74(2)(b) of the Act, “G”’s Mother appears to have made great strides relating to her ability to reduce the risk of harm that “G” might be exposed to by virtue of her ongoing relationship with his Father. I am confident that as the person having charge of “G”, she is adequately caring for, providing for, supervising and would protect him from the potential harm his Father might pose, either directly to him or indirectly, through his violence towards her or the risk of, as she put it, absconding with “G”. I have considered the type of violence that was perpetrated upon her by the Father. That included broken bones and serious injury. I have reviewed the courses and counselling she has undertaken and the gains she has made relating to ridding herself of the self-doubt and shaming that victims of violence tend to engage in. Reports from her counsellors are most positive and encouraging, she is gainfully employed, she has located stable housing, and she has the knowhow and means to access family and law enforcement support. She appreciates and understands the risk of harm that J.H. poses to her and indirectly to “G” and she has taken positive steps to address the physical risks that he may still pose. This includes the installation of “inside and outside” cameras and means to ascertain who is at the front door at all times. “G” is prohibited from approaching strangers and family/his Father. The Mother’s plan calls for supervised access to the Father and she is still fearful that he may locate her and do her harm. There will always remain the risk of harm that J. H. might pose upon his release from custody. Surely there is a criminal probation order with non-association terms in effect, but the tricky issue is how to successfully navigate the possibility of access or parenting time/visitation that might be arranged for “G” and his Father and what steps, if any, the Father might take with a resumption of his and “G’s visitation. The Father says that his focus and priority is in re-uniting with his son and improving their relationship, but that focus and the sincerity of those claims remains in some doubt.

[26] The Affidavit filed by the Father’s mother and the Bible study reports accomplish little in addressing the very issue that I expressed concern about, whether there has been sufficient and lasting rehabilitation achieved by the Father as it relates to his use of violence and the domestic turmoil that he created and pursued so that I can safely address the issue of his visitation.

[27] Turning to section 74(2)(h) of the Act, it is patently obvious on the evidence before me that there is an ongoing risk that “G” is and continues to suffer emotional harm demonstrated by serious anxiety, withdrawal, and self-destructive or aggressive behaviour all resulting from the actions or failure to act on the part of “G”’s father and to a much more limited extent and initially so, his Mother. “G” was present during the many emotional and physical disputes between his parents. He has described a life of fighting and discord; it was scary, he says. The potential for harm for “G” existed as long as his Mother stayed with the Father and the domestic violence and discord continued. His Mother understands how her long past and more current past and dependence on the Father contributed to her inability to leave the Father. However, on separating from the Father and as a result of his steady incarceration, the Mother immediately secured counselling for herself and “G”. Art therapy and counselling have been productive, but it is recommended they be ongoing. The evidence on the mini‑trial reflects that “G” continues to exhibit violent tendencies so much so that he can experience daily and weekly ongoing aggression problems evidenced with screams, calling names, lashing out at his Mother and this behaviour can happen as much as three times weekly. His behaviour depends on his day and he will “break down” if she says “no” or he is unable to get something he wants. His Mother seeks to continue counselling for “G”, and she tries to run a home without violence or yelling. But “G”’s behaviour continues and must be monitored and frankly, improved. According to Ms. S., “G” is described as struggling to follow direction or listen and being “hands-on” with other students. But it is the richness of detail that “G”’s mother provides that really gives me a better sense of some of his ongoing problems and why he remains a child in need of protection due to the risk of emotional harm (and likely the actual harm) that he might/has suffered.

[28] To summarize, “G” remains in need of protection because he is at risk of suffering emotional harm described in s. 74(2)(h) of the Act resulting from the actions of his Father and to a much lesser extent, the historical actions of his Mother, when she persisted in her relationship with his Father and exposed him to the risk of developing emotional problems. The signs are there and observable that he has been emotionally harmed and he has in fact suffered from emotional harm evidenced by his serious withdrawal and self‑destructive or aggressive behaviours. The ongoing risk is enhanced by the expectation that “G”’s Father will soon be released from custody and he fully intends on pursuing a relationship with his son. To answer my question above as to whether his ongoing aggression has been resolved and whether his fearfulness of his Father has resolved, it is a simple no. “G”’s aggression and behavioural issues continue and they are serious. His fearfulness of his Father appears to be unresolved and he likely needs to be the subject of a behavioural assessment and/or ongoing counselling and certainly a thorough examination of his views and wishes.

[29] That leads me to a discussion about what type of protection order I should make. I started out this exercise referring to Justice Kukurin’s Ruling in A.B. and I indicated I intend to apply his analysis to the exercise before me.

[30] Firstly, like Justice Kukurin’s matter, I find no evidence in this Motion to persuade me that from a comparative point of view, deemed custody is a better dispositional option than a protection order. The protection order can be varied as can the deemed custody order. What it does do is relieve the Society from its involvement. A deemed custody order can and may be varied under the CLRA as it relates to custody (now a decision‑making order), access (now parenting time) and any incidents related thereto. A protection order is likewise not ever permanent, as it is subject to mandatory status review at which time a child’s care and custody and its incidents are reviewable, as is the order for access.

[31] From “G”’s perspective, whether I make a deemed custody order or a supervision order, he will remain where he is residing, with his Mother no matter whether I issue a deemed custody or supervision order and placement with his Mother.

[32] Secondly, the onus is on the Society to prove that the deemed custody order is the preferred choice. The evidence reveals that the Father will bring a variation seeking changes to custody and/or access to “G”, and there is the added spectre of contact/visitation that “G”’s grandmother seeks. I have to wonder whether the Mother has the same financial and other resources that are available to the Society, to address such a variation application. I concur with Justice Kukurin’s finding that the resources of the Society are immensely superior to those of “G”’s Mother.

[33] Thirdly, the making of a deemed custody order is founded on the premise that there are no longer protection concerns that require further involvement of the Society through a protection order. I am not persuaded that this is the case. The degree of upset and risk of emotional harm demonstrated by “G”, the special arrangements that he lives with on a daily basis relating to answering his front door or greeting strangers, his need for ongoing treatment, his counsellor’s recommendation that he engage in further counselling, that his wishes and preferences be canvassed to address the issue of contact time/visitation with his Father, all only underscore the nature and degree of risk that “G” has been exposed to and will continue to be exposed to. These concerns are historical and they also remain current. They apply to his placement with his Mother and the question of parental/grandparent access/visitation now and in the future.

[34] Fourthly, “G” continues to be in need of protection. To further what Justice Kukurin opines at para [34] of his judgment, part of the s. 74(2) and s. 114 analysis further to a finding of protection are the unspoken words that the essential part of the protection finding and protection order (or deemed custody order) is that notion that a child continues in need of protection “should the child be returned to its pre-intervention caregiver and custodian – or to the parent(s) or the person(s) having charge”. This is always part of the analysis when deciding whether a child remains in need of protection and what type of order to make.

[35] Fifthly, access to “G”’s Father and what and how it should be exercised is a necessary consideration in what disposition order the court chooses. Under the CYFSA’s provisions, such orders can be mandatory and subject always to the child’s best interests. The same applies with an access/visitation/parenting time application under the CLRA. What I don’t have before me in this matter is what “G” thinks about all of this, what his views and preferences are, what type of visitation he seeks against a backdrop that it has been several years since he last visited with his Dad.

[36] Six, the Father, the grandmother and the Mother do not agree with the circumstances of any grandparent/parental access/parenting time order. At present, the Father has no face to face contact, but he is allowed information. Upon release, his access under the present Order is at the discretion of the Society. I have to wonder what arrangements will be necessitated in these circumstances and what resources may be required i.e. supervised access supervisors, where the access takes place, funding, etc., for the same Mother who is fearful of the Father and either his attempts to abscond with “G” or his impact on “G”’s functioning, both physically and emotionally. How will she manage all those arrangements without the support and direction and resources of the Society?

[37] Seventh, the making of a deemed custody order necessarily takes this case out of the child protection sphere and into the domestic family law sphere. It is a fait accompli that the Father intends on seeking to vary either the deemed custody order or any deemed access order under the CLRA. As Justice Kukurin has identified, variations under the CLRA are based on material changes in circumstances. How are these factual circumstances to be determined? Would the entire child protection file in this case be required in the CLRA variation proceedings? With a protection order the case is available, the findings are determined and the issue of “G”’s protection and wellbeing is forefront in the Court’s exercise with crucial findings of fact to guide the court’s determination. The ease of having direct access to the history and findings as they relate to “G”’s protection and the protection orders made cannot be understated.

[38] For the above reasons, I choose to deny the Society’s request and instead I choose to make a protection order, that “G” (D.O.B. […], 2016) remain in the care and custody of his Mother subject to Society supervision subject to supervision of Family & Children’s Services of Guelph and Wellington County on terms and for a period of nine (9) months, as I understand that the Father’s release may be imminent, however, a period of time is required to assess the question of his ongoing visitation to “G” and the impact, if any, on “G”’s emotional and physical well-being upon his release and any re-instatement of access. I think a period of nine (9) months should suffice to gather and consider this evidence and thoroughly assess the impact of all of this on “G” and the impact this has on his well-being.

[39] The following conditions shall apply:

1. The Mother shall meet with a worker from Family & Children’s Services of Guelph and Wellington County at such times and occasions that the Society deems necessary;
2. Family & Children’s Services of Guelph and Wellington County shall meet on an announced and unannounced basis with “G” at any time and location with a view to ascertaining his views and wishes regarding visitation with his Father and his ongoing emotional and behavioural functioning;
3. The Mother shall sign consents authorizing the disclosure of any information regarding “G” to Family & Children’s Services;
4. The Mother shall participate in counselling, as directed by Family & Children’s Services of Guelph and Wellington County and sign any releases of information to monitor her progress;
5. The Mother shall provide her address and telephone number to Family & Children’s Services of Guelph and Wellington County at all times and shall promptly advise her worker of any proposed or pending change of address;
6. Should the Father attempt to contact the Mother either directly or indirectly or contrary to the terms of his probation order, the Mother shall promptly report any such direct or indirect contact to Family & Children’s Services of Guelph and Wellington County and police authorities; and
7. The Mother shall use her best efforts with her assigned worker to continue “G”’s art therapy during this term of supervision.

[40] As for the Father’s access I choose to continue the first part of Justice Casper’s order so that the Father shall have no access while he is incarcerated. In addition, there shall be no access to the Father after his release from custody until he brings an access application before this Court and the issue of his visitation can be fully reviewed. In the meantime, he is entitled to receive information relating to “G”. To be clear, he needs to provide the evidence that he failed to do on this Motion to justify his request and specifically what therapy or counselling has he received or what changes have taken place that would reduce or ameliorate the risks he poses to his son’s wellbeing. His request must be in “G”’s best interests. Justice Casper’s Order calls for access upon his release at the discretion of Family & Children’s Services which may well be an unlawful delegation of this Court’s function per the findings of the Divisional Court in J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 (Ont. Div. Ct.). As a result, I do not repeat that portion of her original Order.

[41] Upon his release, the Father will likely be in a better position to advance his claim for visitation, if any, and the Society should be in a better position to ascertain “G”’s circumstances at that time. Part of the Act’s determination of best interests includes a child’s views and wishes and that they be given due weight in accordance with a child’s age and development. See s. 74(3)(a). I am also mindful that Canada is a signatory to the United Nations Convention on the Rights of the Child and the Preamble of the Act acknowledges that the Act’s principles recognize Canada’s role in ensuring that a child be heard.

[42] Accordingly then, an order shall then issue in accordance with paragraphs [40] [41] and [42] above.

Dated at Windsor this 27th day of August, 2021.

(Original Signed and Released) Justice Sharman S. Bondy