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: 2022 06 22 COURT FILE No.: Windsor FO -21-00000158

BETWEEN:

Windsor-Essex Children’s Aid Society Applicant,

— AND —

B.D.D., J.M.D., and A.E.F.C. Respondents

Before: Justice M. Vickerd

Heard on: June 3, 2022 Reasons for Judgment released on: June 22, 2022

Counsel: Natalia Peart..................................................................... counsel for the applicant society B.D. ............................................................................................................... on his own behalf J.D. ............................................................................................................... on her own behalf A.C. ............................................................................................................... on her own behalf Jotan Foster........................................ counsel for the Office of the Children’s Lawyer, legal representative for the youth

VICKERD J.:

Overview

[1] On June 3, 2022, a motion was addressed which was advanced by the Applicant Windsor-Essex Children’s Aid Society (the “WECAS” or the “Society”).

[2] This motion is made within the context of a child protection Application, under the auspices of the Child, Youth and Family Services Act, 2017 (the “C.Y.F.S.A.”).

[3] At the hearing, the following persons were present: N. Peart, counsel for WECAS; the Family Services Worker, D. Degagne; the Respondent father B.D., the Respondent mother A.C.; the Respondent parent J.D. and child’s counsel Jotan Foster. The hearing was addressed using the Zoom platform.

[4] The Respondent parents and counsel for the child consent to the final order sought by the W.E.C.A.S.

[5] In consideration of the motion, I have reviewed the following pleadings: 14B Motion dated May 27, 2022; Statement of Agreed Facts (Child Protection) dated May 26, 2022; Addendum to Statement of Agreed Facts (Child Protection) dated May 26, 2022; and the Plan of Care dated August 24, 2021.

[6] No responding party has filed an Answer given their support of the Society’s position.

Issues

[7] The following are the issues for determination:

• Should the required findings under subsection 90(2) be made?
• Should there be a finding that the child is in need of protection?
• Should an extension of the time limit for a child in care be granted pursuant to subsection 122(5)?
• If the court exercises its discretion to extend the time that the child can be in care, is the order sought by the parties regarding care of the child appropriate?

Section 90(2) Findings

[8] Section 90(2) of the C.Y.F.S.A. requires that when a child is brought before the court to determine whether the child is in need of protection, the court shall determine:

a. The child’s name and age; b. Whether the child is First Nations, Inuk or Métis child; and c. Where the child was brought to a place of safety before the hearing, the location from where the child was removed.

[9] Based upon the uncontested facts found in paragraphs 6(a) through (g) of the Agreed Statement of Facts dated May 26, 2022, and with the consent of the parties, the findings required under section 90(2) of the C.Y.F.S.A. are made on the terms found in paragraph 1 of the Statement of Agreed Facts dated May 26, 2022.

Finding of in Need of Protection

[10] The structure of a child protection application under the C.Y.F.S.A. is a two-step process. First, the court must decide if the child is in need of protection under s. 74(2) C.Y.F.S.A. If that determination is made, the court must then go on to address disposition.

[11] With the consent of the parties, a finding is made that the child, E.C., born […], 2006, is in need of protection pursuant to section 74(2)(n) of the C.Y.F.S.A., specifically that:

The child’s parents are unable to care for the child and the child is brought before the Court with the parents’ consent and, where the child is twelve years of age or older, with the child's consent, for the matter to be dealt with under Part V of the Child, Youth and Family Services Act.

[12] This protection finding is made based upon the following facts:

• The subject youth, through his counsel, consents that this matter be addressed under Part V of the Act;
• The family’s contact with the Society began in 2011. Child protection concerns noted in 2011 and 2012 included adult conflict between the Respondent father and the Respondent mother. The file was closed at intake;
• The Respondent father and the stepmother assumed care of the youth in 2014. At that time, Respondent mother was unable to care for the youth due to challenges associated with domestic violence and substance misuse. The Respondent father obtained an order for custody of the youth on November 14, 2014, and the Society closed its file;
• The Respondent mother was absent from the youth’s life until approximately 2018;
• The current file has been opened since September 2019. Identified child protection concerns include: parent/child conflict between the youth and the stepmother; the father and stepmother's caregiving skills and failure to follow through with recommended services. As well, the father and stepmother were struggling with managing the youth’s sexualized behaviour;
• The youth has various mental health diagnoses and has demonstrated inappropriate sexualized behaviour. The Respondent father reported to the Society that the youth was diagnosed with Autism Spectrum Disorder, Oppositional Defiant Disorder; Attention Deficit Hyperactivity Disorder; and XYY Disorder. It is noted that youth has limited verbal expression and comprehension which impacts his daily functioning;
• On February 25, 2020, the Respondent father reported to the Society that there was an alleged incident in January 2020 relating to the child and inappropriate sexual behaviour;
• The youth’s family, although engaging in collaborative planning for the youth’s care, requested that he be brought into care for treatment. He was brought into care on June 23, 2020. He was placed with the Society under a Temporary Care Agreement;
• On September 15, 2020, the youth was placed at Choices Child and Adolescent Services (“Choices”). Choices specializes in treating youth displaying sexualized behaviour. The youth remains at Choices and participates in counselling (group and individual) and practices skills that he is learning through his interactions with others in the home. The youth confirms a willingness to continue with treatment.
• On December 18, 2020, the Respondent mother told the society worker that she was unable to have the youth in her care full-time due to his needs.
• The Respondent father and stepmother have engaged in recommended services. The Respondent mother is cooperating with efforts to secure collateral services;
• The Respondent parents are unable to meet the youth’s needs at this time. He remains in residential treatment.
• There is no alternate plan offered by any parent for the youth’s care other than his current placement with the Society.

Extension of the Time Limit under Section 122

[13] Section 122 of the Act imposes a twenty-four (24) month maximum on the duration of Society wardship orders, including time spent in temporary care. Time may be extended beyond the 24-month period to a maximum of an additional six months if the court finds that to do so would be in the child’s best interests (section 122 (5)).

[14] This section of the Act confirms statutory recognition of the importance of timely permanence planning for children.

[15] As in any analysis under the Act, there must be a consideration of the paramount purpose of the Act found in subsection 1(1), which is to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purpose, other purposes of the Act as set out in subsection 1(2) are also designed to support the autonomy and integrity of the family unit and to utilize the least disruptive course of action available (Justice S. Sherr in Children's Aid Society of Toronto v NG, [2022] OJ No 2273, 2022 ONCJ 235).

[16] Changes to child protection legislation that came into force on April 30, 2018 incorporated new provisions adopting a stronger emphasis on the best interests of the child. The importance of these changes was highlighted by the Ontario Court of Appeal in Children's Aid Society of Toronto v. J.G., 2020 ONCA 415, where the court stated that: “The C.Y.F.S.A. is remedial legislation enacted for the protection of society's most vulnerable children. It must be liberally construed to the benefit of the child” (paragraph 45).

[17] It is clear in the legislation and in the case law that a child-focused approach to child protection legislation must be undertaken in all circumstances. The decision to extend the legislative time limits for a child in care must be viewed from the child's perspective (C.A.S. of Ottawa-Carleton v. K.F., [2003] O.J. No. 2326 (S.C.J.)). Where the statutory time period has been significantly exceeded, the court should exercise its discretion to further extend the time only in "the exceptional case" (C.A.S. of Toronto v. D.S., [2009] O.J. No. 4605 (S.C.J.)).

[18] The use of the word “may” in subsection 122(5) grants the court a discretion. This discretion must be exercised with consideration to the best interest criteria confirmed in section 74(3) and amounts to a test that any order made must be “for the child’s sake” (Children's Aid Society of Ottawa-Carleton v KF, [2003] OJ No 2326, 2003 CarswellOnt 2211, 123 ACWS (3d) 705).

[19] In Catholic Children's Aid Society v. S.S., 2011 ONCJ 803, at paragraph 135, the court gave examples of situations where an extension order might be made:

“There will be cases where, for a variety of reasons, it is in the best interests of a child to return to a parent, but a delay is appropriate. In these limited cases, the court should make the extension order set out in subsection 70(4). See: Kawartha-Haliburton Children's Aid Society v. K.M., (2001), 110 A.C.W.S. (3d) 491, [2001] O.J. No. 5047, 2001 Carswell-Ont. 4507 (Ont. Fam. Ct.). These would include cases with the following facts: where a parent needs a little more time to complete a program where participation was delayed due to waiting lists; where a parent or child is waiting for an important support service or imminent housing to become available or where a child needs additional time to make a positive and gradual transition from a foster placement to a home placement. It would be detrimental to a child in such cases to rush this process for the sake of strict compliance with a time limit.”

[20] Courts have granted extension orders as transitional orders to facilitate the adjustment of the children into their new placements (Children's Aid Society of Toronto v. D.S., 2013 ONCJ 554; Children's Aid Society of Toronto v. S.C., 2016 ONCJ 234; and Children's Aid Society of Toronto v. D.B., 2013 ONCJ 405).

[21] In determining whether an extension order should be made, the court in Children's Aid Society of Carleton v. K.F., [2003] O.J. No. 2326 (Sup.Ct.) set out the factors that a court must consider, which are as follows:

1. The decision to extend must be made in accordance with the children's best interests.
2. The decision must be viewed from the children's perspective.
3. The factors in subsection 37(3) [now 74(3) best interest factors] of the Act must be considered.
4. The court must be satisfied, balancing the factors in subsection 37 (3), that there are unusual or equitable principles in the circumstances that would justify granting an exception to the general rule, for the "child's sake."

[22] In this case, the youth has been in the care of the Society since June 23, 2020, when his parents voluntarily relinquished his care. Initially the youth was placed into the care of the Society pursuant to a Temporary Care Agreement. That Agreement expired June 22, 2021. The youth was then placed into the care of the Society by interim order of this court dated July 5, 2021.

[23] The youth has been in care a total period of twenty-four (24) months.

[24] The Society seeks an order for a period of interim Society care for an additional six months. The youth’s parents and his counsel support the relief sought.

[25] Society counsel argues that the parties require more time to collaborate and to “hopefully” develop a plan for the child’s care. The Society confirms that a family group conference is being arranged to discuss planning for the youth for his care when he completes treatment. The Society anticipates that the conference shall include members of the youth’s extended family. No date has been set for the conference as the Society is awaiting information from a collateral.

[26] The facts in the Addendum to the Statement of Agreed Facts confirm that the child remains in an institutional residence, Choices, and is committed to completing his treatment. A discharge date has not been identified.

[27] In addition to the foregoing, I note that no parent, family member or kin has offered a plan for the youth’s care either now or upon his release from treatment.

[28] There are no details offered about what may change regarding the youth’s care over the next six months to support that the youth and family will be in a different position than they are now. There is no transition plan proposed as the Society and the other parties do not identify any plan for the child’s care upon his release from his treatment at Choices.

[29] As confirmed in the Agreed Statement of Facts, the parties are working collaboratively and have committed to a Family Group Conference, but no plan has been developed for the youth’s care over the last 24 months. Absent plans for the child’s discharge from care and absent any family plan for his care, I cannot accept that circumstances for this child will be different in six months.

[30] Although the youth’s parents have demonstrated a commitment to his treatment, none of them are offering him a future home or making any commitment to resume care of him. The parents’ exercise of access reveals the parents’ ambivalence about the child’s return to their care. More specifically:

• The father’s partner (stepmother to the youth) has not exercised access with the child since at least July 5, 2021 (the date of the current interim access order). She has told the worker that she has anxiety related to the youth.
• The Respondent mother is exercising the minimum access visits afforded to her under the current order as she has two younger children in her care and limited time. She told the Society worker in December 2020 that she is unable to have the youth in her care due to his needs. There is no evidence that her position has changed.
• The Respondent father is exercising access visits with the child once per week at the residential placement. He also maintains contact with the youth by telephone. Although the current interim order provides for more expansive visits, including overnights, there is no evidence that more access has occurred or has been requested by the Respondent father.

[31] This is not a case where if the parents have more time to access services, they will be prepared to care for the youth full-time or they will remedy the child protection concerns resulting in his coming into care. This is also not a case where the child, parents and Society require more time to create a transition plan with expanded access visits and access to services. This is simply a situation in which all parents have relinquished care of the youth. The youth cannot wait indefinitely for permanency planning in the hope that some parent will change his/her position on his care or offer a family or kin placement. Twenty-four months have lapsed with no alternate plan offered for this youth.

[32] The Plan of Care filed by the WECAS is dated August 26, 2021. That document is not current offers little to supplement the plan for this youth.

[33] Unfortunately, this youth is without options for his future care other than placement in care of the Society. But, he is also entitled to permanency and stability. It is in the youth’s best interest that permanency planning begins now.

[34] Given the foregoing, I cannot conclude that a further extension of the time limits set in the legislation regarding a child’s time in care is in this youth’s best interests. The request by the Society to extend the time that this youth spends in care of the Society is dismissed.

Disposition of Care

[35] Given my finding above, there is no need to consider the order requested regarding care of the child.

Order

[36] Given the foregoing, the following order is made:

1. A finding is made that the child E.C. born […], 2006, is in need of protection pursuant to section 74(2)(n) of the Child, Youth and Family Services Act;
2. The Society’s requests regarding care of the child, found at paragraphs 3, 4, 5, and 6 of the Motion Form dated May 27, 2022, are dismissed;
3. This matter shall be immediately set down for Trial. It shall be addressed at the next Trial Assignment Court set for July 19, 2022 in Courtroom #5;
4. Given the length of time that the child has been in care, this matter shall be marked as a priority matter on the trial sittings list;
5. The WECAS may amend its Child Protection Application within 15 days, should it wish.
6. The CP Application is adjourned to July 5, 2022 at 2:00 p.m. in Courtroom #2 to be addressed using the Zoom platform for further litigation planning.

Released: June 22, 2022

Signed: Justice M. Vickerd