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.

(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.

Court File and Parties

DATE: 2023 09 29 COURT FILE No.: Toronto C 43736/23

ONTARIO COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO Applicant

— AND —

X.L. and L.Q. Respondents

Before: Justice Curtis

Heard on: 8-10 August 2023 Reasons for Judgment released on: 29 September 2023

Counsel: Jodi Kaiman . . . . . . . . .for the applicant Children’s Aid Society of Toronto Renatta Austin . . . . . . . . . . . . . . . . . . . . . . . . . . Amicus Curiae Debra Stewart . . . . . . Office of the Children’s Lawyer, for the youth X.X.L. Father . . . . . . . . . . . . . . . . . . . . . . . . appeared in person, unrepresented Mother . . . . . . . . . . . . . . . . . . . appeared by remote video, unrepresented

CURTIS, J.:

Index

1. Over-view
2. Background a. The Youth b. The Parents
3. The Litigation a. Conduct of the Trial b. Litigation History
4. The Parent’s Strengths
5. Is the Youth in Need of Protection? a. The Protection Finding: Legal Principles b. Protection Evidence i. The Family’s Time in Canada ii. Concerns of the C.A.S.T. at the Time of the Start of the Protection Application iii. The Evidence about the Efforts to Provide Services c. Protection Finding Analysis
6. Disposition a. Legal Principles b. Why is it Important for the Youth to be in Extended Society Care on his 18th Birthday? c. Is Intervention Through a Court Order Necessary to Protect the Youth in the Future? d. Plans Proposed at Trial e. Alternative Plans for the Care of the Youth f. The Youth’s Current Placement and Services g. The Youth’s Views and Wishes h. Analysis Regarding Disposition i. Why Not a Supervision Order? ii. Why Extended Society Care? i. Access i. Access Legal Principles ii. Access Analysis iii. Access Holders and Access Recipients
7. Conclusion
8. Orders

Over-view

[1] This is the decision for a three-day trial of an amended protection application in which the Children’s Aid Society of Toronto [1] sought an order for extended society care for the youth X.X.L.

[2] The trial dealt with the issues of the protection finding and the disposition.

[3] The agency was asking for protection findings, under the Child, Youth and Family Services Act, 2017 [2], ss. 74(2)(b) and (e) [3], and for an order for extended society care, with specified access to the parents.

[4] At trial the youth’s lawyer was consenting to the protection findings, the disposition sought, and the access schedule proposed.

[5] The parents wanted the youth returned immediately to their care (and to the physical care of the father, the only parent residing in Canada), so they could return the youth to China, their country of origin, where the mother is living.

[6] The issues for determination are these:

a) Is the youth in need of protection? b) Is intervention through a court order necessary to protect the youth in the future? c) If so, what disposition order is in the best interests of the youth? and, d) If there is an order for extended society care made, should there be access to the parents, and if so, what access to the parents is in the youth’s best interests?

Background

The Youth

[7] The youth was 17 years old at the trial (born […], 2005). The youth has multiple and serious medical conditions which place him in the category of high special needs. The existence of and the serious extent of the youth’s complex medical needs is not in dispute. The youth has cerebral palsy, is non-verbal (except for grunts or screams), has limited mobility, needs assistance with all activities of daily life (e.g., feeding, hygiene, toileting), is incontinent, and requires full-time care. He is an adult-sized youth in diapers. His sleep is often highly disturbed. He needs physical assistance to stand or walk. He needs to be fed. These circumstances, and the youth’s particular special needs, are the framework through which this matter must be considered and determined.

The Parents

[8] X.L. is the father of the youth. He was born on […], 1983 and is 39 years old. [4] L.Q. is the mother. No date of birth for her was provided, and in her evidence, she would only say that she was in her 40’s. [5]

[9] The parents are married, but no date of marriage was provided. It appears (but is not clear) that X.X.L. is their only child.

[10] The father was the youth’s caregiver at the time of intervention by the agency in Toronto. Then and now, the mother lives in China.

[11] The evidence about the parents is quite limited. The parents were mostly absent from the trial, although both filed Answers and Plans of Care seeking the return of the youth to their care.

[12] The parents have been very unco-operative with the C.A.S.T. workers, (and with other service providers) throughout their time in Canada, and since the agency first became involved in October 2021. The father has been openly resistant to meeting with the C.A.S.T. workers, or even to have phone calls with them. The father refused to meet with the worker on many occasions. Appointments were scheduled and not kept (appointments with the C.A.S.T. worker, and with other service providers, including doctors and other medical service providers). The father did not have telephone contact with the agency for two months after the youth was brought into care. The mother has never had telephone contact with the C.A.S.T. workers.

[13] It appears that the father had a heart attack on 25 February 2023. This information came from a C.A.S.T. worker, and as the father gave no evidence at trial and did not participate in the trial, it was not confirmed or denied.

[14] There are large gaps in the information about the parents generally, their life in China, the youth’s history and life, and their care of the youth in China. Evidence of what took place before the father and the youth came to Canada in 2020 was almost entirely missing. [6]

The Litigation

Conduct of the Trial

[15] From the first involvement of the society in October 2021 until May 2023, only the father was in contact with the society. Before the trial, only the father came to court.

[16] The mother was unknown to the society until May 2023. The father would not disclose her name or contact information, even though the parties are not separated, and she apparently was the primary caregiver of the youth when they were all in China. It was necessary for the court to make an order for the father to disclose her name and contact information (made 18 April 2023). Even with this information (her full name, address and phone number), when the C.A.S.T. worker tried repeatedly to reach her, the mother did not engage with the agency. The C.A.S.T. worker even contacted the Chinese embassy for assistance. The mother finally e-mailed the C.A.S.T. worker on 23 May 2023, and e-mailed the agency her Answer and Plan of Care on 1 June 2023. The mother, however, refused to speak to the worker on the phone.

[17] At times the father was represented by a lawyer. His lawyer was removed from the court record, at the lawyer’s request, in May 2023.

[18] The father was issued two legal aid certificates between late March and June 2023. He retained two experienced child protection lawyers, but each lawyer became unwilling to act for him within weeks of their retainer.

[19] As the youth’s medical needs are complex and high, it was clear that the trial would be complex.

[20] At the trial planning meetings, it became clear that the parents would not have lawyers for the trial. At trial both parents were unrepresented.

[21] The court became concerned that the father’s presentation and lack of participation in the court process might result in the court not having all the information needed to make these decisions about the youth at trial.

[22] The claim made, for an order for extended society care, is serious. The court particularly wanted to ensure a fair process and the presentation of the admissible evidence. The parties and the court became concerned that without legal assistance, like an amicus curiae, that the trial might be longer than the three days scheduled. The involvement of amicus curiae would permit counsel to narrow the issues, streamline the process and present the evidence needed in this matter.

[23] The lawyer for the youth brought a motion for the appointment of amicus curiae to assist the court. The father consented and the agency did not oppose. The court determined that amicus curiae was needed to ensure both a fair process to all parties, the orderly conduct of a complex trial, and the effective use of limited judicial resources. The court appointed amicus curiae to assist the court and the father on 19 July 2023. A detailed order regarding the participation of amicus curiae was made. Amicus was entitled to fully participate in the trial, including to make opening statements, summons and examine witnesses, cross-examine witnesses, make evidentiary objections as appropriate, prepare or amend pleadings, bring motions and file relevant evidence with leave of the court.

[24] The father attended for the first day of the trial, and then did not return to court after that. The father gave no evidence at trial and was entirely absent for two of the three days of trial.

[25] The mother intermittently participated, remotely, from China, sometimes attending and sometimes not, and was mostly absent. During the trial, the court repeatedly checked the equipment being used in the courtroom for remote video transmission to ensure that it was functioning properly. The mother gave some evidence-in-chief, and the amicus curiae began to question her in cross-examination. The court broke for lunch, and the mother did not return to the trial. The amicus curiae did not complete her cross-examination of the mother, and neither the agency nor the child’s counsel were able to cross-examine her. [7]

[26] The parents do not speak English. However, there were two Mandarin translators present in court for all three days of the trial.

[27] The amicus curiae participated fully and completely in the trial, cross-examining witnesses, contacting the father when he stopped coming to court, making submissions, and even trying to assist the mother with her evidence in chief.

[28] The parents were absent for the majority of the trial, by choice. As the father gave no evidence, and did not participate, and the mother gave very little evidence and was not cross-examined by two of the parties, the trial proceeded like an unopposed hearing. As a result, the evidence of the C.A.S.T. was not disputed.

Litigation History

[29] The agency has had no previous involvement with this family.

[30] The father and the youth came to Montreal in January 2020, and came to Toronto in February 2020. The protection application was issued on 22 March 2023, seeking a six months interim society care order. On 22 March 2023, Sherr, J. made a temporary order, without prejudice, placing the youth in the care of the agency. On 27 June 2023, Sherr, J. made a temporary order for interim society care, with prejudice.

[31] The C.A.S.T. concerns at the time the youth was brought to a place of safety on 22 March 2023 were these:

(a) The father’s ability to care for the youth; (b) The father’s ability to meet the youth’s extremely high needs; (c) The youth’s physical, medical and developmental needs had been neglected; (d) The state of the home; and, (e) The father’s unwillingness, over a significant period of time, to engage with any form of services or service providers, to obtain services for the youth and assistance for the father.

[32] When the father was told on 21 March 2023 by C.A.S.T. that they were starting a court case and intending to bring the youth into foster care, the father took the youth (without a wheelchair, hat, gloves or boots) and removed him from the shelter they had lived at. They left Toronto. They were located around 3.05 a.m. on 22 March 203 in St. Bernard, Quebec, at the Canada-U.S. border crossing by the R.C.M.P. and were taken into R.C.M.P custody. They had been trying to cross the border and enter the U.S..

[33] On 30 May 2023 C.A.S.T. issued an amended protection application seeking an order for extended society care, with access to the parents. [8] The parents filed Answers and Plans of Care seeking the return of the youth to their care. The parents do not consent to the protection findings.

[34] As the Answers of the parents set out their plan to have the youth returned to the father’s care in Canada, and for the father and the youth to return to live with the mother in China, the agency arranged immediately (on receipt of the mother’s Answer) for International Social Services to assess the mother’s plan. That assessment was not completed by the time of the trial.

The Parent’s Strengths

[35] The court accepts that the parents love their son very much. Both parents said this often during the trial (even though neither was present for the entire trial).

[36] The youth is happy when the father comes for a visit. He smiles, laughs and is happy to see the father.

Is the Youth in Need of Protection?

The Protection Finding: Legal Principles

[37] C.A.S.T. is seeking protection findings pursuant to s. 74(2)(b), and (e) of the C.Y.F.S.A.:

Child in need of protection

(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(e) the child requires treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide the treatment or access to the treatment, or, where the child is incapable of consenting to the treatment under the Health Care Consent Act, 1996 and the parent is a substitute decision-maker for the child, the parent refuses or is unavailable or unable to consent to the treatment on the child’s behalf;

[38] It is not necessary for the society to prove an intention to cause the child harm before finding that a child is in need of protection. The society must prove causation by act, omission, or pattern. [9]

Protection Finding Evidence

The Family’s Time in Canada

[39] The father and the youth arrived in Canada, in Montreal, in January 2020. The plan was for the mother to come to Canada, too, but she was not able to get a visa. The father and the youth made a refugee claim in January 2020, while still in Montreal. They arrived at a shelter in Toronto in February 2020. The shelter accommodation was a one-room hotel room at the Radisson Hotel, operated by the shelter system. The refugee claim was unsuccessful. It is unclear whether that result was appealed, or whether a further claim based on humanitarian and compassionate grounds was started. At trial it was disclosed that the father is no longer pursuing legal immigration or refugee status in Canada, as he intends to return to China with the youth.

[40] The father and the youth faced significant challenges, on arriving to live in Canada:

(a) The father and youth arrived in Canada right at the commencement of severe restrictions on daily life as a result of the health emergency; (b) The plan that the mother would come to Canada and assist in the youth’s care could not be realized; (c) The language barrier was significant, and a source of much frustration; (d) The father and youth had significant challenges negotiating through the refugee admission system; (e) The father and youth faced significant pressure living in a shelter, and the father had conflict with shelter staff; and, (f) The father and youth had significant challenges navigating the health care system;

[41] The shelter workers had difficulty working with and trying to assist the father, and contacted the C.A.S.T. in October 2021. These are the concerns that caused shelter workers to contact C.A.S.T.:

(a) The youth’s developmental challenges; (b) A problematic level of care and concerns about the father’s parenting abilities; (c) The youth’s lack of stimulation; (d) The condition of the unit; [10] (e) Father was reusing soiled diapers for the youth; (f) Father did not take the youth outside the room or provide any stimulation for him, despite being spoken to about this issue by shelter staff; (g) Staff concern that the room was a health hazard for the youth and the living conditions were unhygienic; (h) Strong odour in the room; (i) Staff had made many attempts to help father clean up the room with no success. The shelter dealt with these concerns through weekly check-ins, a cleaning service, and providing other necessities, when needed; (j) The father refused to have his room sprayed for cockroaches, although shelter staff had offered to move them to a new room; (k) Father was not allowing workers into the room to allow the youth to receive services; (l) There was no current psychological assessment for the youth; (m) The youth did not have a family doctor; (n) Holland Bloorview Hospital [11] had contacted the father in September 2020 to set up appointments to provide services for the youth, and the father did not attend these appointments at all, or did not attend until a long time after initial efforts were made (e.g., 8 months); (o) Holland Bloorview had recommended the assistance of a personal support worker to father for the youth, and the father refused this service. [12] The youth would have been eligible for the assistance of a personal support worker up to 4 hours per day because he is high needs; (p) The youth was not attending school and father would not agree to this; [13] (q) Staff and doctor at Holland Bloorview felt the father was over-whelmed being the primary/sole caregiver for the youth with little to no support; (r) The father was referred to Surrey Place [14] for co-ordinated services planning, to connect families to community supports. The father did not attend even the phone appointments for this and did not follow up; (s) The doctor at Holland Bloorview referred the father to Compass Clinic, [15] and he missed that phone appointment; and, (t) The youth required dental services and possibly dental surgery. The father refused to get dental care for the youth, even when told the youth might need dental surgery.

Concerns Of C.A.S.T. at the Time of the Start of the Protection Application

[42] The areas of greatest concern for the C.A.S.T. workers were the youth’s health, his hygiene, his lack of dental care, the father’s refusal to accept services for the youth, the state of the home, and the father’s refusal of respite for him as caregiver.

[43] The father refused to sign a voluntary services agreement with C.A.S.T.. He refused to sign consents for C.A.S.T. to speak to shelter staff. He was resistant to all suggestions of help. The father refused to sign consents for the agency to speak to some of the possible service providers (Surrey Place, Holland Bloorview).

[44] The father says that he left the youth alone for periods of time, despite the youth’s inability to care for himself.

[45] This was the evidence given by the C.A.S.T. workers about the state of the home the father and the youth lived in (shelter accommodation in a downtown hotel):

(a) There was an extremely foul odour from the room; (b) The door could not be opened all the way, as there were bins blocking the door; (c) There was only a small path from one end of the unit to the other; (d) Bedbugs were visible on the white mattress cover; (e) Cockroaches were visible on the walls and the floor; (f) There were stacks of bins along the walls and on the floor; (g) There were feces around the toilet and used toilet paper around the toilet; and, (h) There were various items (medical supplies, clothes, items in bags) strewn on top of the bins.

The Evidence About the Efforts to Provide Services

[46] Over a period of 19 months (February 2020 to September 2021), and before contacting C.A.S.T., the shelter staff made repeated recommendations for services for the youth and assistance for the father, and set up appointments (by phone and in person) to provide services, appointments which the father did not attend.

[47] The father repeatedly refused services as he said that he did not want anyone entering the room. Appointments were made for medical and other services (with doctors and other medical service providers, including connecting father and youth with Holland Bloorview) and the father did not take the youth and did not attend. This happened repeatedly and over a significant period of time.

[48] The C.A.S.T. offered referrals and services to the father and the youth regarding all of these sources (and referrals regarding other service providers):

A COSTI [16] shelter worker Holland Bloorview Sick Kids Hospital LIFEspan [17] Surrey Place The Child Welfare Immigration Centre of Excellence [18] Toronto Police FOCUS Table [19] Personal support services offered by COSTI A unit cleaning service

[49] As well, all of these services and the help they could provide (among other services) was reviewed in a lengthy meeting with the father, with a translator present, on 17 March 2023 (before the youth was brought into care).

[50] The C.A.S.T. made repeated recommendations and appointments for services for the youth and for assistance for the father, and he did not follow-up or attend for these appointments (by phone or in person), over a period of 18 months (from September 2021 to March 2023), before the agency started a protection application and asked to bring the child to a place of safety and into foster care.

[51] The shelter workers, community service providers (Holland Bloorview, Surrey Place, Compass Clinic, and LIFEspan Clinic, among others) attempted to engage the father in arranging services for the youth and assistance for the father. The father consistently and repeatedly refused these services and refused to participate.

[52] It is surprising that the shelter and the community service providers waited so long (19 months) to contact C.A.S.T.. And it is surprising that C.A.S.T. waited so long (a further 18 months) to start a protection application. This youth, and this family, were in crisis, the youth has significant and high special needs, efforts to help them were repeatedly rejected, and no-one took the required steps to obtain these services for this youth for three years. Given the severity of the youth’s disabilities, the circumstances and the quality of the caregiving available from his father, the state of the home unit, and the father’s behaviour throughout this time, it is shocking that so much time passed before there was formal intervention, state intervention and legal intervention to obtain services for this needy, dependant, neglected, special needs child.

Protection Finding Analysis

[53] There is a significant amount of undisputed evidence in support of a finding that the youth is in need of protection. The father was over-whelmed and unable to care for the youth on his own. The father would not follow through with services needed for the youth’s significant and high special needs, and in fact, resisted and refused such services. The youth had no primary doctor and no medical care. The room they lived in was dirty, unhygienic and unsafe. The youth’s dental care was neglected for many years, to the point of causing him pain. The father would not agree to the youth being placed in school or other programs. The youth’s physical, medical and developmental needs had been neglected. None of this evidence was disputed in any way.

[54] The evidence regarding the protection finding is over-whelming. The youth is found to be a child in need of protection under ss. 74(2)(b) and (e) of the C.Y.F.S.A.

Disposition

Disposition Legal Principles

[55] Section 101 (1) C.Y.F.S.A. sets out the orders available to the court once a protection order has been made, and the court is satisfied that a court order is necessary to protect the child in the future. The court must then determine what order for his care is in his best interests.

Order where child in need of protection

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:

Supervision order

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

Interim society care

2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

[56] Once a protection finding is made, and the court determines that a protection order is necessary to protect the child in the future, the court must determine what order for his care is in his best interests. The criteria to determine the child’s best interests are set out in s. 74 (3) C.Y.F.S.A.:

Best interests of child

74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[57] Section 101 (2) C.Y.F.S.A. requires the court to inquire into what efforts the society has made to assist the child before intervention. The shelter workers tried to work with the father for 19 months before they contacted C.A.S.T. Then C.A.S.T. tried to work with the father for an additional 18 months unsuccessfully. Extensive efforts were made, and referrals were made to many specialized service providers to address the youth’s specific high needs. The father did not follow up on these referrals and refused to connect with or accept help from service providers. He continued to not co-operate and to not participate.

[58] Section 101 (3) of the C.Y.F.S.A. requires the court to consider less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child. For the reasons set out, returning the youth to the father, even with a supervision order, would not be adequate to care for and to protect the youth in this case, and would not allow him to access the large range of intensive services he needs.

[59] An extended society care order is the most profound order that a court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. [20]

[60] In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child’s perspective. [21]

[61] The pattern of behaviour must be considered: the lack of improvement in the pattern; the lack of insight; the lack of progress in addressing well-founded concerns, despite repeated opportunities to do so; the lack of candour; the lack of good faith; and the lack of any reason to have confidence that the parent has the ability and/ or the commitment to make necessary improvements within timelines sensitive to the child’s needs. [22]

[62] The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his best interests. There is not to be experimentation with a child’s life with the result that in giving the parents another chance, the child would have one less chance. [23] There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. [24]

Why is it Important for the Youth to be in Extended Society Care on his 18th Birthday?

[63] An extended society care order ends when a youth turns 18. If this youth is in extended society care when he turns 18 years old, he becomes eligible to receive services past the age of 18. He is eligible for assistance and services regarding housing, developmental adult services and an adult protection worker. He would also be eligible to be in the Ready, Set, Go program, [25] a provincial program which allows C.A.S.T. to continue to support him to the age of 23.

[64] When the youth is older than 18, he has access to adult day programs, all the way through the rest of his life. These programs are geared to an individual’s level of functioning.

[65] After the age of 23 he can access adult protective services through COTA. [26]

[66] A registered practical nurse, who was the client care co-ordinator at the Bloor St. Safehaven [27] facility, was the youth’s primary care nurse, and co-ordinated services [28] for the youth. She gave evidence about all the services the youth was referred to and attended for.

[67] The supervisor of the special needs team for current children in care gave evidence that was quite helpful in understanding the range of services available for this youth under different legal outcomes. Her evidence was that a youth who was in extended society care on his 18th birthday had priority access for transfers to adult services and for long term planning. A youth who was not in extended society care on his 18th birthday would have to go on a wait list to access those services, and that currently the wait list is more than 10 years long. [29]

[68] The adult services that would be available to a youth who was in extended society care on his 18th birthday could last forever. All the youth’s needs would be funded. If the youth is placed in extended society care, he can remain in the Bloor St. Safehaven facility until he turns 18. Then he can transfer to the adult facility at the Clarke Institute location, and can stay there as long as he needs to. This placement and these programs are available to the youth for his lifetime. An order for extended society care provides this youth with the most possible options for his care and his life after the age of 18.

[69] If he is not in foster care at all, or is only in interim society care, on his 18th birthday, he is not eligible for these services.

Is Intervention Through a Court Order Necessary to Protect the Child in the Future?

[70] A protection order is needed to protect the youth in the future. The father has no better prospects of caring adequately for the youth now than he had in March 2023 when the youth came into care. The original protection concerns have not been addressed by the father. The risk to the youth is still as high as it was when the original protection order was made. Nothing has changed so that the father with a supervision order could protect the youth from the risk of harm.

Plans Proposed at Trial

[71] There were two plans proposed at the trial:

a) C.A.S.T.’s plan is that the youth be placed in extended society care with access to the parents, as set out in a detailed proposal filed. The youth would remain in extended society care until his 18th birthday, and then would transition into the services then available to him; and, b) the parent’s plan is for the youth to be placed in the father’s care, and for the father and the youth to return to China to live with the mother.

[72] The father would not discuss his plan for the youth’s care with the worker. And there was no evidence at trial about the parent’s plan. The father left the trial after the first day and gave no evidence. The agency knows very little about the mother, about her circumstances or her ability to care for the youth. The mother was only present intermittently at the trial, gave some evidence in chief (none of which addressed the parent’s plan), and left the trial before she could be cross-examined. [30]

[73] The parent’s plan consisted of a repeated stated desire to resume care of the youth, with no information about how the parents would meet the youth’s significant needs. No details of the plan were offered. There was no information about how the parents would meet the youth’s significant high special needs now or in the future.

Alternative Plans for the Care of the Child

[74] Section 101 (4) of the Child, Youth and Family Services Act [31] requires the court to look at community placements, including family members, before deciding to place a child in care. The parents did not disclose if there were any relatives living in Canada, or even elsewhere. The agency’s kin research department could not identify anyone. In fact, the parents were so secretive and unco-operative that the father would not even disclose the mother’s name or contact information for a very long time, even after the youth came into care, and then only when a court order was made. There were no separate alternative plans, from family or community, presented for the care of the youth.

The Youth’s Current Placement and Services

[75] The youth was placed, in March 203, at Safehaven, a specialized residential placement for children and for adult children with significant special needs and medical complexities, with trained staff.

[76] A caregiver at Safehaven described the youth as very visual, gentle, non-violent, an observer, one who likes to sit and watch and listen, one who has awareness of his surroundings, co-operative during activities of daily living, with a great appetite, and one who does not fight the caregivers. The youth recognizes his father, is comfortable with his father, and understands that he is safe with his father.

[77] While the youth has been in care, the father’s visits initially were sporadic. Then he started to see the youth more. He has been invited to come any day, and every day, if he wants, and to let the residence know he is coming. These were some issues with the father being unwilling to let the residence know when he was coming to see the youth, and with the father not following other policies of the residence. Some of that has resolved. And on some of the father’s visits, a woman joins the visits electronically. The father has not identified her as the mother, but the staff notes that the youth has a positive reaction to her presence, and so suspect that this is the mother.

[78] The father consistently and repeatedly demanded changes in the youth’s care and routines. He strongly believed his son was not being suitably cared for and, in fact, believed his son was being abused.

[79] While in foster care, the youth has been referred to various community and medical services to assist. There have been many referrals and many appointments have been arranged for him (as the youth’s needs are varied and complex). Here are some of these services:

(a) a referral to a primary care physician; (b) a dentist and dental surgeon; (c) orthopedic surgeon at Hospital for Sick Kids (the youth has scoliosis); (d) infectious diseases at Hospital for Sick Kids; (e) a swallowing study; (f) an immunization doctor; (g) neurology at Holland Bloorview; (h) physiotherapy at Holland Bloorview; (i) speech language pathologist at Holland Bloorview; and, (j) a psychological assessment to be done by Dr. Daniel Fitzgerald.

[80] The youth’s dental care had been badly neglected for a long time. The dental clinic at Hospital for Sick Kids told the C.A.S.T. worker that the dental surgery had been scheduled and had been needed in 2020. This surgery happened in July 2023. [32] The surgery involved taking x-rays, doing fillings, doing dental cleaning, doing a fluoride treatment and extracting four molars. The youth needed to be under anesthetics for the surgery (not under a local anesthesia), as the work needed was extensive and he would not be able to sit still for it. The youth was in pain before the dental surgery. After the surgery, a caregiver at Safehaven described him as more tranquil, less agitated, and in less pain.

[81] A Residential Placement Advisory Committee (R.P.A.C.) [33] meeting was held in June 2023 to review placement options for the youth, both short-term and long-term. Safehaven was determined to be an appropriate placement for the youth. The youth can stay in the current placement and program until he turns 18 (on […], 2023). There is a plan for an adult program with Safehaven when he turns 18.

[82] The youth is living in a specialized placement, and is receiving good care for his special needs. He is involved in stimulating activities. He lives in a clean environment. He is not isolated. He is in a placement where both his current needs and his adult needs can be met.

The Youth’s Views and Wishes

[83] Sections 74(3)(a) requires the court to take a child’s views and wishes into account:

Best Interests

s. 74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

[84] Although the youth is represented by a lawyer in this case, he is non-verbal and unable to give instructions. In addition, the level of his cognitive functioning is unknown. His views and preferences are unable to be determined.

[85] On the youth’s behalf, his lawyer’s position was to consent to the protection finding, to consent to the disposition sought as being in the youth’s best interests, and to consent to the detailed access schedule proposed. [34]

Analysis Regarding Disposition

Why Not a Supervision Order?

[86] One option is to place the youth with the father, subject to a supervision order. Any plan for the placement of the youth with the father would involve a supervision order, at least initially. The efficacy of a supervision order rests on the compliance of the person being supervised, and the ability of the supervising agency (and therefore, the court) to monitor compliance. Much of the information relied upon by the agency during a supervision order is self-reported. Trust between the agency and the person supervised (and therefore, the court) is an essential element of a supervision order.

[87] For a supervision order to be a meaningful and effective instrument of risk management, the parent subject to the supervision order must meet a minimum threshold of co-operation, and reliability. The effectiveness of a supervision order is dependent on the supervised parent's compliance with the terms of the order, as well as on the supervising agency’s ability to monitor that parent's compliance. If the parent fails to meet this minimum threshold of compliance, a supervision order cannot be an effective option to protect the child from possible harm.

[88] The father has not made progress in even acknowledging, let alone addressing the protection concerns, to allow the court to believe that a supervision order would be effective in addressing risk to the youth, should he be placed in the father’s care. There was no sign from the father that he would change his non-working relationship with the C.A.S.T. Under these circumstances, a supervision order cannot serve as an effective instrument in managing any risk of harm to the youth, were he to be placed in the father’s care.

[89] It is clear from reviewing the father’s behaviour over a period of three years with the shelter workers, the agencies he was referred to, and the C.A.S.T workers that the father would not comply with a supervision order. He has no history of any level of co-operation with the many and various professionals who tried to engage him in order to assist the youth. It was very difficult for the professionals working with the father to effectively engage him in any capacity. The agency workers struggled for 18 months to try to engage the father. The father demonstrated clearly that he would not comply with a supervision order.

[90] Any supervision order involving the youth and the father would be an ineffective instrument for the complicated care, protection and safety of the youth. The father has repeatedly shown that he is not a suitable candidate for a supervision order.

Why Extended Society Care?

[91] Due to the youth’s age (he turns 18 on […], 2023), his significant special needs and the significant services needed to care for him and assist him, an order for interim society care is not appropriate and is not in his best interests.

[92] The least disruptive alternative consistent with the best interests of the youth is to be placed in the extended care of the society. The evidence regarding services and supports needed for this child is clear and detailed. He is a youth who needs very special permanency planning. These services and supports are only available for the youth if he is in extended society care on his 18th birthday. There is no less intrusive order which could meet the youth’s needs.

Access

Access Legal Principles

[93] The test for access to a child in extended society care and the legal framework is set out in s. 105 C.Y.F.S.A.:

When court may order access to child in extended society care

(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.

Additional considerations for best interests test

(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.

Access Analysis

[94] There is no need for an analysis about whether there should be access, as the agency is asking for an order for access by the parents, and all parties agree there should be an access order, in the youth’s best interests. The evidence presented was clear on this. The youth reacts positively to the father at visits, the father knows the youth well, and the father loves the youth. The father-youth interaction is positive, loving, familiar and with no fear by the youth. Continuing this contact allows the youth to maintain his connection to his language, and his heritage. The mother knows the youth well, loves the youth, and has a history of caring for the youth.

[95] The detailed access proposal of the C.A.S.T. and the youth’s lawyer meets the needs of the youth for continued and frequent contact with his parents.

Access Holders and Access Recipients

[96] When courts order access to youths in extended society care they are required to identify who is the access holder and who is the access recipient: C.Y.F.S.A., s. 105 (7):

Court to specify access holders and access recipients

(7) Where a court makes or varies 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), the court shall specify,

(a) every person who has been granted a right of access; and

(b) every person with respect to whom access has been granted.

[97] This distinction is of less significance for this youth, who will not be placed for adoption and who will only be in extended society care until he turns 18 on […], 2023. However, to satisfy the requirements of the C.Y.F.S.A., such an order can be made.

Conclusion

[98] There is no dispute that the parents love the youth. However, the focus of this whole process is the care, protection, well-being and best interests of the youth. The parents have limited insight into their parenting challenges. They have not been able to meet the youth’s significant and high special needs, and have resisted all efforts to get him help and to get help for themselves.

Orders

[99] These are the statutory findings regarding the youth:

Youth’s name: X.X.L. Date of birth: […], 2005 Age: 17 Gender: Male First Nations, Inut, Metis Status: the youth is not a First Nations, Inuit or Metis person Father: X.L. Mother: L.Q. The youth was brought to a place of safety in Toronto, Ont.

[100] The youth is found to be a youth in need of protection under ss. 74(2)(b) and (e) of the C.Y.F.S.A.

[101] There shall be an order for the youth to be placed in the extended care of the C.A.S.T. with access by the youth to the parents as follows:

(a) All access by the youth X.X.L., born […], 2005 shall be at the discretion of the agency, to be exercised reasonably. (b) The youth shall be the access holder and the parents shall be the access recipients. (c) The Children’s Aid Society of Toronto (C.A.S.T.), or its designate, shall notify the father X.L. and the mother L.Q. of all health care and educational appointments for the youth and shall invite each to attend. (d) All access, in person or by video or phone, by the youth to either parent, shall be subject to the reasonable rules and expectations of the youth’s placement and its programming, such as school and medical appointments. The parents shall follow the reasonable rules and expectations of the placement. (e) Other access by the youth in person, and other terms of such access, shall be at the discretion of CA.S.T., such discretion to include location, duration, and level of supervision, if any. (f) Access by the youth to the father shall be as follows: i. A minimum of four times per week in person; and, ii. On days that the father does not attend in person, the father may have video or phone contact with the youth. (g) Access by the youth to the mother shall be as follows: i. Daily phone or video contact with the youth, on the mother’s initiative or when the father facilitates such contact on his phone or video, or on any of his access days (in person or on video or phone) with the youth; and, ii. In the event that the mother shall be present and available to attend access in person, and subject to her first meeting with the C.A.S.T., a minimum of one time per week in person.

Released: 29 September 2023

Justice Carole Curtis

Footnotes

[1] “C.A.S.”, “C.A.S.T.”, “the agency”, or “the society”.

[2] S.O. 2017, c. 14, as amended (“CYFSA”).

[3] These sections deal with:

• Risk of harm to the youth resulting from the caregiver’s failure to care for the youth, or a pattern of neglect in caring for the youth: and,
• The youth requires treatment and the parent refuses to consent to the treatment.

[4] The mother said the father is in his early 50’s but did not provide his age or date of birth.

[5] She said she did not want to answer private questions.

[6] The father told a C.A.S.T. worker that the youth had attended rehab at a specialized clinic in Shanghai for two years, but the father felt it was not doing anything beneficial, so the youth returned home. The youth had attended school initially in China when he was little, but the parents pulled him out of school when he was young, and he has not been back since.

[7] The court did, however, allow and accept the limited evidence given by the mother, and take it into account, even though she was not cross-examined.

[8] A detailed access proposal was offered, and consented to by the C.A.S.T. and the youth’s lawyer. The terms of this proposal are set out later in this decision.

[9] Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, para. 28, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903. Children’s Aid Society of Niagara Region v. T.P. and R.G., 35 R.F.L. (5th) 290, [2003] O.J. No. 412, 2003 CarswellOnt 403 (Ont. Ct.).

[10] Including cockroaches visible on the walls and floors.

[11] Holland Bloorview Kids Rehabilitation Hospital (“Holland Bloorview”) is Canada's largest children's rehabilitation hospital, providing hospital care, outpatient clinics, and community outreach activities to children and youth with disabilities and their families.

[12] A personal support worker, offered by COSTI, to assist in the youth’s care, was offered to the father multiple times, and he declined. The service is far more help than other services provide (which is usually a maximum of 14 hours per week).

[13] School for the youth has the advantage of meeting some of the youth’s needs, and also of providing respite to reduce the burden of caregiving on the father.

[14] Surrey Place is a not-for-profit organization in the developmental services sector that serves people of all ages with developmental disabilities and complex needs.

[15] Compass Clinic is operated out of the Pediatric Department at St. Michael’s Hospital to care for children, youth and their families with special health care needs, and to care for children who are new to Canada.

[16] COSTI Immigrant Services is a community-based multicultural agency providing employment, educational, settlement and social services to all immigrant communities, new Canadians and individuals in need of assistance.

[17] The LIFEspan Service is a Nurse Practitioner-led transition service that provides youth who have cerebral palsy or acquired brain injury (ABI) with a "bridge" between pediatric and adult rehabilitation care.

[18] The Child Welfare Immigration Centre of Excellence supports child welfare organizations on cases involving unresolved immigration, settlement or border-related issues.

[19] FOCUS, equally led by the Toronto Police Service (TPS), the City of Toronto and United Way Greater Toronto, to help more vulnerable Torontonians.

[20] Catholic Children’s Aid Society of Hamilton-Wentworth v. G. (J) (1997), 23 R.F.L. (4th) 79 (Ont. Ct. [Gen. Div., Div. Ct.]).

[21] Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).

[22] Catholic Children's Aid Society of Hamilton v. S.(B.L.), 2014 ONSC 5513 (Sup. Ct.), para. 99.

[23] Children’s Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man. C.A.).

[24] Children’s Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504 (Ont. Sup. Ct.).

[25] The new name for the program previously called Continued Care and Supports for Youth (C.C.S.Y.), a program of funded services for youths who are in extended society care when they turn 18.

[26] COTA Health is an accredited, not-for-profit, community-based organization supporting adults with mental health and cognitive challenges to live well within their communities.

[27] Safehaven is a not-for-profit organization that provides residential and respite care to individuals (youths and adults) with medical complexities and developmental disabilities, serving individuals diagnosed with cerebral palsy, down syndrome, muscular dystrophy, genetic disorders, and other complex care needs.

[28] For example, setting appointments and follow-ups, communicating with service providers, communicating the with youth’s legal guardian (in this case, with C.A.S.T.).

[29] This information seemed so surprising that the witness was questioned closely about it.

[30] The amicus curiae started a cross-examination of the mother, the court broke for lunch, and the mother did not return to the trial after lunch, so the C.A.S.T. and the youth’s lawyer were not able to cross-examine her.

[31] Child, Youth and Family Services Act, S.O. 2017, c. 14 (“the C.Y.F.S.A.”).

[32] The father was present and attempted to stop the surgery. He also reported that the youth was being mistreated in the hospital to a hospital security guard, who contacted the police, and the police attended at Safehaven that day.

[33] The Residential Placement Advisory Committee conducts a review process of the placements of children and youth in residential care to determine whether the placement and plan-of-care are best suited to the needs of the child.

[34] The access proposal was a joint submission of the agency and the youth’s lawyer.