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 7, 2024 COURT FILE No.: Toronto CFO 24-30
BETWEEN:
CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO Applicant
— AND —
C.S. and G.W. Respondents
Before: Justice Pawagi
Heard, and ruling given: February 26, 2024 Reasons for Judgment released on: August 7, 2024
Counsel: Donna Gray .......................................................... counsel for the applicant society Sharon Worthman ......................................... agent for the respondent mother C.S. G.W. .............................................................. respondent father on his own behalf
PAWAGI J.:
NATURE OF THE CASE
[1] On February 16, 2024, the first appearance of the society’s Protection Application, the society brought a motion seeking an order placing the parents’ two children in the temporary care and custody of the mother subject to the supervision of the society. The basis for the request was that the children, then ages 7 and 12, had not attended school for a substantial part of the past three years.
[2] I adjourned the motion to be heard on February 26, 2024, and advised the parties I was considering making an order placing the children in care due to the seriousness of the allegations of educational neglect.
[3] On February 26th, the motion proceeded on consent as the mother ensured the children attended school every school day between February 16 and February 26 (with one justified exception). I made the order requested, but added conditions, including on the father and on the society. I determined that reasons would follow to highlight my concern that the society did not treat school absenteeism as the serious child protection concern that it is. These are my reasons.
FACTS
[4] The parents separated about five years ago. There were a couple of brief openings with the society concerning allegations of domestic violence and substance abuse by the father. No details were provided. Since the parties separated, the children have been living with their mother with sporadic access to their father.
[5] The children’s school(s) called the society once a year for the past three years to report concerns about the children’s lack of attendance.
First report
[6] In June 2022, a social worker from Selwyn Public School called the society to report the following:
[7] The children had not attended school since October 2021. The younger child was in senior kindergarten and the older child in grade 5.
[8] On May 18, 2022, the mother emailed the school apologizing for the children’s absence and explaining that it was because there was a death in the family for which the family had to travel out of town, and because of concerns about the pandemic.
[9] The society intake worker provided the mother with information about counselling available to the family in the community and closed the file.
Second report
[10] In May 2023, social workers from Selwyn Public School and Gordon A. Brown Middle School called the society to report the following:
[11] Neither child was attending school. The younger child was in grade 1 and the older child in grade 6;
[12] The school social workers tried to engage the mother but she was not cooperating with them. The Toronto Catholic District School Board sent the mother a letter explaining parental responsibilities regarding children’s education but there was no improvement. The school social workers asked the society to attend a school meeting with the mother.
[13] The society did not open a file for ongoing service as the school year was nearing an end and the school was going to offer alternate options such as a virtual school program for the children.
Third report
[14] In October 2023, two social workers from the Toronto Catholic District School Board called the society to report the following:
[15] They were concerned about these children. This was their third report to the society. Since the start of this school year, the older child, now in grade 7, had only attended a handful of times; and the younger child, now in grade 2, had not attended school at all.
[16] The mother had not met with the school despite the school’s repeated attempts to arrange meetings. She did not answer calls from the school. The mother presented as overwhelmed and was not following through with any recommendations.
[17] This time the society opened a file for ongoing service, and, after trying unsuccessfully to work voluntarily with the mother, brought a Protection Application and the within motion. The Protection Application seeks a finding that the children are in need of protection pursuant to s. 74(2)(h) of the Child, Youth and Family Services Act (risk of emotional harm) and a six-month supervision order with the mother.
[18] The following is a summary of school absences for the older child: Grade 5: Absent 157 out of 188 days (84% of the school year) Grade 6: Absent 111.5 out of 188 days (59% of the school year) Grade 7 (current year): Absent 62.5 out of 73 days (86% of the school year to that point)
[19] The following is a summary of school absences for the younger child: Senior Kindergarten: Absent 105 out of 188 days (56% of the school year) Grade 1: Absent 148 out of 188 days (78% of the school year) Grade 2 (current year): Absent every day. Demitted from school on December 20, 2023 for non-attendance.
[20] The following is a summary of various reasons the mother has provided at various times to explain the children’s absences from school:
[21] An aunt died;
[22] COVID-19 pandemic;
[23] The older child fell at school and broke his wrist. The school did not report the incident to the mother or seek medical attention for the child. The mother found it difficult to send the child to school following this incident as she did not trust the school to take care of the students;
[24] The younger child had dental surgery and required time to recover;
[25] Both of the children have anxiety issues. (No assessments were provided confirming same). The mother told the family doctor who made a referral to a specialist. The children are on a waitlist for an assessment;
[26] In grades 4 and 5 the older child attended school on-line;
[27] The children suffered seasonal illnesses, including COVID-19;
[28] The children have “health issues” and did not attend for “medical reasons. (No medical reports were provided confirming same);
[29] The mother thinks the younger child is not ready for regular school and wants her to attend virtual school. She has contacted the school board for virtual school admission, but the board has not responded to her request;
[30] The mother is teaching the children at home. She thought she had the right to provide home-schooling. (No evidence provided that she notified the school in writing of her intention to home-school as is required).
[31] The society worker met with the children on October 25, 2023. The children told her the following:
[32] The younger child had pain for a couple of days after her dental surgery and then was fine;
[33] The older child said he did not have a specific reason for missing school. He said that the younger child suffers from anxiety. When asked what was making either of them worried or anxious about attending school, neither child responded;
[34] Their mother does not teach them every day, but she has helped them occasionally with schoolwork;
[35] When asked if they would attend school, they both said they would.
ANALYSIS AND THE LAW
[36] Section 94(4) of the Child, Youth and Family Services Act [1] (CYFSA) provides that a court shall not make a temporary order placing a child in care unless the court is satisfied that there are reasonable and probable grounds to believe that there is a risk that the child is likely to suffer harm and that that the child cannot be adequately protected by a supervision order.
[37] The society made mention in its motion material of concerns with clutter in the home, past domestic violence and drug abuse, and anxiety suffered by the children and the mother, but the main risk and the focus of the motion was the children’s lack of attendance at school.
[38] The issue of risk was conceded at the motion. However, given that the first call from the school did not come until the children had missed almost an entire year of school, and given that the society did not commence a protection application until the children had missed almost three years of school, I am concerned that this risk was not treated with the seriousness it merits.
[39] While s. 94 does not specify what qualifies as “harm”, this can be found in s. 74. Subsection 74(h) provides that one ground of protection is a risk the child is likely to suffer emotional harm resulting from a parent’s actions, failure to act, or pattern of neglect. Subsection 74(f) describes emotional harm as demonstrated by anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development.
[40] Joanna Harris (now Justice Harris) in her excellent 2020 article, “Educational Neglect and Child Protection in Ontario,” [2] noted that courts in Ontario have repeated recognized that educational neglect is a stand-alone child protection concern justifying state intervention, but that greater collaboration is needed between educators, social workers and responsible ministries to ensure that vulnerable children’s educational needs are met.
[41] Justice Harris highlighted the following:
[42] Pursuant to the United Nations Convention on the Rights of the Child, which was ratified by Canada in 1991, Canada recognizes the right of a child to education and agrees to take measures to ensure children have access to education.
[43] The Supreme Court of Canada in R. v. Jones [3] quoted approvingly a passage from the U.S. Supreme Court in the seminal Brown v. Board of Education of Topeka [4] about the fundamental importance of education (emphasis added):
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument is awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.
[44] Despite the absence of a specific category of educational neglect as a protection concern within the CYFSA, Ontario courts have held that a failure to provide a proper education can constitute both a risk of emotional harm, and emotional harm, to a child. Ontario courts have recognized that when children are habitually absent from school or late for school, it is often a symptom of significant dysfunction or neglect in the family. The following are some examples:
[45] In Lennox and Addington Family and Children’s Services (Society) v. M.S. [5], Justice Robertson recognized that “without an education, [the child] will be unable to meet his own economic future needs.”
[46] In Children’s Aid Society of Halton Region v. J.K.V. [6], Justice Starr held that a child’s “poor school attendance while in his mother’s care threatened to undermine his social, emotional and educational development.”
[47] In Durham Children’s Aid Society v. B.P. [7] Justice Shaughnessy noted that the state has a vested interest in the education of children as well as protecting them from physical and emotional harm and that the importance of educating children cannot be overstated in terms of the child’s overall healthy development in modern society.
[48] In SMCYFS v. C.C. [8], Justice Jain determined that the child’s high rates of absenteeism and late attendance at school while in her mother’s care put the child at risk of emotional harm and developmental delay. Justice Jain held that any child who is habitually absent or late from school without sufficient cause may be a child in need of protection, that a number of school changes and missed school days may be evidence of ongoing instability in a parent’s life and an inability to provide children with a stable home environment.
[49] Ontario’s Education Act [9], at s. 21(5), states that a parent shall ensure a child attends school unless they are at least 16 years old and have withdrawn from parental control. Pursuant to s. 24(2), where the school’s attendance counsellor is of the opinion that a child should not be excused from attendance, they shall, among other things, make inquiries into the validity of the excuse for non-attendance.
[50] Section 125(6) of the CYFSA specifies that the duty to report a child in need of protection includes teachers, school principals and school social workers. The duty is ongoing, such that even if a person has made a previous report with respect to the same child, they are obligated to make a further report if they believe there are additional reasonable grounds to do so.
[51] However, there does not appear to be sufficient direction in this regard within the education sector.
[52] The Ontario Ministry of Education issued a Policy/Program Memorandum to Directors of Education, Supervisory Officers and Principals instructing educators to ensure they are aware of the relevant sections of the CYFSA with respect to reporting suspected cases of children in need of protection. But school absenteeism is not referenced.
[53] The Ontario College of Teachers issued a Professional Advisory on the Duty to Report children who may be in need of protection. There is again no reference to absenteeism as an indicator of neglect.
[54] The Toronto District School Board issued an Operational Procedure regarding Dealing with Abuse and Neglect of Students. The report outlines indicators of child protection concerns. Absenteeism is identified as a possible indicator of exposure to family violence or neglect.
[55] The Catholic District School Board of Eastern Ontario appears to go the furthest with respect to addressing irregular attendance and emphasizing early intervention in its 2021-2022 Attendance Handbook. The Handbook identifies thresholds at which students will be referred to the school’s “Behaviour Crisis Consultant” who will determine and deal with underlying causes of the attendance problem. After a certain length of absence, students will be removed from the school register, at which point the school’s principal must ensure that the Attendance Counsellor is advised, and must continue to make efforts to re-engage. There is however no reference to the point at which the school will deem absenteeism a protection concern and engage a child protection agency.
[56] The CYFSA does not explicitly list absenteeism as a protection concern, and neither did its predecessor, the Child and Family Services Act [10] (CFSA). However, prior to that, the 1980 Child Welfare Act [11] included in the definition of child in need of protection “a child who without sufficient cause is habitually absent from home or school.” But there was no attendance threshold noted.
[57] At present, neither the CYFSA nor the Education Act proscribe a timeline for when student absenteeism becomes a child protection concern. In 2018, a bill was introduced that sought to amend the aforementioned Acts to substantively address habitual absenteeism: Bill 189, An Act to amend the Child, Youth and Family Services Act, 2017 and the Education Act to protect students who are habitually absent from or late arriving to school (Short title: Student Absenteeism and Protection Act, 2018).
[58] The proposed preamble of the Act was as follows:
Habitual absenteeism, lateness or a combination of both may be an early indicator that a school age child is suffering from abuse or neglect and may be in need of protection. Students who are habitually absent from or late arriving to school often end up failing to complete school, reducing their chances of future success. In circumstances where the school is unable to resolve habitual absenteeism or lateness, it would be beneficial to the child for a children’s aid society to investigate the situation. Improving communication between education workers and child protection workers would put the best interests of the child at the forefront and increase the likelihood of better outcomes for children and their families.
[59] In brief, the proposed amendments included defining habitual absenteeism as when a child has been absent from, or late arriving to, school for more than 40 days in a school year, and enumerating it as a child protection factor within the CYFSA. The Bill also sought to amend the Education Act by requiring that, where a pupil has been habitually absent for the same period of time, a principal shall report it to a children’s aid society.
[60] As set out in the Hansard transcript from the debate about the Bill in the Ontario Legislative Assembly on March 8, 2018 [12], former MPP Ann Hoggarth described the rationale behind the proposed amendments as follows:
[61] Currently, the Education Act provides limited options on how to deal with cases of habitual absenteeism. Usually the first step would involve the teacher or principal contacting the family to raise the issue. But if it continues, the principal is required to report these cases to a board official, typically an attendance counsellor, if available. Attendance counsellors may arrange further meetings with the parents, but if this fails to improve attendance, they are left with only one enforcement option: Attendance counsellors can bring the parents to court, where they will face a fine of not more than $200. This seldom happens and does nothing to rectify the underlying issue for why the student has been consistently absent.
In practice, this is far from sufficient, for several reasons. First and foremost, my experience and conversations tell me that attendance counsellors focus their efforts on grade 9 and 10 students, with a focus to keep these students from dropping out. Given that we all know early intervention is the key to resolving many of these issues, this age is far too late to make substantial change and seldom results in positive change. Secondly, the sheer hassle of going to court over a relatively small fine often leads to counsellors simply dropping the case.
This is why we must make it clear that absenteeism, in its own right, is cause for concern. When school officials are unable to resolve the issue of absenteeism, this bill provides an alternate and, I believe, more effective course of action. Attendance counsellors are not social workers trained to deal with the root causes of absenteeism in many families and are not empowered to go into the home to investigate them. Children’s aid workers, however, are able to do this.
[62] The Bill did not proceed past second reading.
CONCLUSION
[63] What is needed is some way to ensure school absenteeism is addressed as the child protection concern that it is. Courts at all levels have clearly and repeatedly found that educational neglect can cause, or put children at risk of, emotional harm. But schools have to report habitual absenteeism to children’s aid societies promptly, and societies have to take the issue seriously and bring the matter to court promptly if it cannot be resolved by voluntarily working with the family.
[64] In the within case, the parties recently filed an Agreed Statement of Facts signed by the mother and the Society, which notes that since the matter was brought before the court on February 16, 2024, both children have attended school on a consistent basis. And both children appear to enjoy being at school and report that they have made friends.
[65] There needs to be outreach by societies to schools to ensure that teachers/principals/school social workers are aware of their ongoing obligation to report habitual absences to the society. And societies need to educate their own workers regarding the serious negative impact school absenteeism has on a child’s development and future, and the fact that educational neglect in and of itself is a child protection concern.
[66] It should not take three years of substantial school absences before a society brings a matter to court for an order to compel parents to send their young children to school.
ORDER
[67] The following temporary order was made on February 26, 2024. It remains in place.
Order to go placing the two children in the care and custody of the mother subject to the supervision of the society with the following conditions:
Conditions for the father:
- The father shall pick up the two children from their home every school day and drive them to their school on time starting February 27, 2024, with no exceptions;
- If he is unable to do so, he shall provide the mother with at least two hours notice in writing;
- The father shall sign consents for the release of information as requested by the society;
- The father shall attend at conferences scheduled by the society and/or the school as requested.
Conditions for the mother:
- If the father is unable to drive the children to school, the mother shall do so, on time, with no exceptions. The mother shall ensure the children remain at school the whole school day, unless the school contacts her to pick them up due to illness or other reason;
- The mother shall clean and de-clutter the home within 7 days;
- The mother shall sign consents for the release of information as requested by the society, after being given time to consult with her counsel;
- The mother shall attend at conferences as scheduled by the society and/or the school as requested;
- The mother shall permit society workers to attend her home for announced and unannounced visits;
- The mother shall permit society workers to meet with the children privately at home, school or other.
Conditions for the society:
- The society shall hold a family centred conference;
- The society shall hold a meeting with parties and the school to discuss whether assessments for the children are required and what, if anything, needs to be done to ensure they are both at grade level;
- The society shall follow up re state of home, and if necessary determine if society will pay for outside cleaning resource as a one time measure, including clutter removal;
- The society shall work with parents to ensure the children are registered for a daily program in the summer;
- The society shall follow up with the mother re outcome of her contacting her doctor for her anxiety issues and re outcome of referral to the Hospital for Sick Children for the older child’s anxiety issues.
Released: August 7, 2024 Justice M. Pawagi
Citations
[1] 2017, S.O. 2017, c. 14, Sched. 1 [2] Harris, J. (2020), Educational Neglect and Child Protection in Ontario. Canadian Journal of Children’s Rights Revue Canadienne Des Droits Des Enfants , 7 (1), 228–240 https://doi.org/10.22215/cjcr.v7i1.2575 [3] , [1986] 2 S.C.R. 284 [4] 347 U.S. 483 (1954) at p. 493 [5] at para 5 [6] 2018 ONCJ 337 at para 114 [7] at para 40 [8] 2019 ONSC 4541 at para 36 [9] R.S.O. 1990, c. E.2 [10] R.S.O. 1990, c. C. 11 [11] R.S.O. 1980, c. 66 [12] https://www.ola.org/en/legislative-business/house-documents/parliament-41/session-2/2018-03-08/hansard#para1257