C.H. v. Durham Children's Aid Society et al. [Indexed as: H. (C.) v. Durham Children's Aid Society]

64 O.R. (3d) 84

[2003] O.J. No. 879

Docket No. 722/02

Ontario Superior Court of Justice

Divisional Court

Benotto S.J., Then and Greer JJ.

March 12, 2003

Family law -- Children -- Child welfare -- Court having authority to make access order to be supervised in discretion of Children's Aid Society -- Judge not erring in taking into consideration dismissed assault charges against father in ordering that access to father be supervised at discretion of Children's Aid Society -- Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 15, 58.

Two children who were in the care of the Children's Aid Society were ordered placed by the court in the temporary care and custody of their mother with access to the father to be supervised at the discretion of the Society. The father appealed, arguing that the judge erred in considering assault charges against him which were dismissed, and that the judge did not have jurisdiction to order access at the discretion of the Society.

Held, the appeal should be dismissed.

Leave to appeal the temporary order was not required under the Family Law Rules, O. Reg. 114/99.

The judge was correct in taking into account the fact that the father continued to be involved in episodes of domestic strife, which resulted in criminal charges being laid, and that, even though the charges were eventually dismissed, there was a pattern of physical altercations and anger management issues. She did not misuse the criminal charges.

The paramount purpose of the Child and Family Services Act is to promote the best interests, protection and well-being of children. Section 58 of the Act gives the court authority to determine access and to "impose such terms and conditions of the order as the court considers appropriate". Section 15(3) mandates that the Children's Aid Society is to "supervise" children assigned to its supervision. Taken together, and read in light of the objectives of the Act, ss. 58 and 15 give the court authority to make an access order to be supervised in the discretion of the Children's Aid Society. Maximum flexibility is required to respond to a family's ongoing needs on a day-to- day basis. The parties should not have to return to court for every day-to-day access issue. The Society has the statutory mandate and the expertise to deal with these day-to- day issues. It is thus appropriate to leave the day-to-day discretion with it. [page85 ]

APPEAL by a father from a temporary order placing the children in the care of their mother, with the father's access to be at the discretion of the Children's Aid Society.

Cases referred to Behrens v. Stoodley (1999), 1999 1626 (ON CA), 3 R.F.L. (5th) 8, 128 O.A.C. 58, [1999] O.J. No. 4838 (Quicklaw) (C.A.); Children's Aid Society of London and Middlesex v. G.C., 2001 28530 (ON SC), [2001] O.J. No. 5660 (Quicklaw) (S.C.J.); Fergus v. Fergus (1997), 1997 1723 (ON CA), 33 R.F.L. (4th) 63, 104 O.A.C. 254, [1997] O.J. No. 4677 (Quicklaw) (C.A.); Kawartha- Haliburton Children's Aid Society v. V.C., 2003 2292 (ON SC), [2003] O.J. No. 140 (Quicklaw) (S.C.J.); Strobridge v. Strobridge (1994), 1994 875 (ON CA), 18 O.R. (3d) 753, 115 D.L.R. (4th) 489, 4 R.F.L. (4th) 169, 72 O.A.C. 379, [1994] O.J. No. 1247 (Quicklaw) (C.A.), revg (1992), 1992 7488 (ON SC), 10 O.R. (3d) 540, 95 D.L.R. (4th) 503, 42 R.F.L. (3d) 154, [1992] O.J. No. 1805 (Quicklaw) (Gen. Div.); Williams v. Ellul (1996), 1996 1330 (ON CA), 19 R.F.L. (4th) 40, 88 O.A.C. 316, [1996] O.J. No. 335 (Quicklaw) (C.A.)

Statutes referred to Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 15(3), 58(1) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 21.9.1

Rules and regulations referred to Family Law Rules, O. Reg. 114/99, rule 38

Raymond A. Goddard, for appellant. Renae Oliphant, for respondent (Durham Children's Aid Society). Sandra Scovino, for respondent (K.H.).

[1] THE COURT: -- The appellant appeals the temporary order of Madam Justice Hatton wherein she placed the two children, ages five and four, in the care of their mother subject to the supervision of the Children's Aid Society. She ordered the father's access "shall be at the discretion of the Society".

[2] Although the appellant's factum raises several issues, there were only three in oral argument:

1. Whether leave is required to bring this motion;

2. Whether Madam Justice Hatton erred in considering the criminal charges against the father which were dismissed;

3. Whether Justice Hatton had jurisdiction to order access at the discretion of the Society.

Background

[3] The two children have been in the care of the Children's Aid Society since April 11, 2001. On June 29, 2001, the father's access was ordered to be at the discretion of the Children's Aid Society. He had supervised and semi-supervised access on various [page86] occasions until April 2002, after which time he was allowed three overnight visits.

[4] On April 29, 2002, he was charged with assaulting his girlfriend. The Children's Aid Society refused to allow continued, overnight unsupervised visits. He was in jail until the charges were dismissed on June 20, 2002, after which time the supervised and semi-supervised visits resumed. There were considerable difficulties with access thereafter.

[5] In August, the father advised the Society that he did not wish access. Later that month he decided he did, and asked to involve his girlfriend. The Children's Aid Society advised against her involvement as she was facing criminal charges with respect to an altercation with the children's mother.

[6] On September 5, 2002, the father was charged with assaulting his girlfriend. He alleged that she assaulted him, but she was not charged. The charge was dismissed on September 24, 2002.

[7] The matter came before Madam Justice Hatton on October 30, 2002, when she placed the children in the temporary care and custody of their mother with access to the father to be supervised at the discretion of the Society.

Leave to Appeal

[8] Orders of the Superior Court of Justice (Family) may be appealed to the Divisional Court pursuant to s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Family Law Rules, O. Reg. 114/99 do not require leave for temporary (interim) CFSA orders in order to appeal to the Divisional Court. Rule 38(12) excludes child protection from rule 38(13) (the leave to appeal rule). This is because child protection matters should be dealt with expeditiously (rule 38(11)).

Criminal Charges

[9] Justice Hatton found that:

The father's recent behaviour had been problematic. He had been inappropriately angry and confrontational with the Society. When the Society granted him semi-supervised access, he did not abide by reasonable expectations and involved Ms B. in the visits. He encouraged the children to lie about the visits. He allegedly threatened harm to one of the children's caregivers, J.M. He increased the stress on at least one of the children by a veiled threat that he knows where their mother lives. He continues to be involved in episodes of domestic strife which result in criminal charges being laid. Although these charges are eventually dismissed, there is a pattern of physical altercations and anger management issues.

[10] In our view, Justice Hatton was correct and did not misuse the criminal charges. She described the factual context in which [page87] the charges played a part. She recognized that they were dismissed, but took into account the atmosphere of conflict that surrounded the father. There is no error in this regard.

Access in the Discretion of the Society

[11] There are conflicting decisions in the Superior Court and the Ontario Court regarding access orders which confer discretion on the Children's Aid Society. In Children's Aid Society of London and Middlesex v. G.C., 2001 28530 (ON SC), [2001] O.J. No. 5660 (Quicklaw) (S.C.J.), Mr. Justice Granger held that the court did not have the power to delegate the making of an access order and that "access in the discretion of the Society" is in effect, delegating that power. He stated that it is the independence of the judiciary that provides parents with the assurance that their views concerning the best interests of their child will be considered by the court which is independent of the Society. That is, he stated, the reason for s. 58(1) of the Child and Family Services Act, R.S.O. 1990, c. C.11 which expressly states that the court may make an order respecting access. Justice Granger states [at para. 16]:

If the legislature had intended that the Society was also to have the jurisdiction to make access orders or control the access process, it could have explicitly provided for such a power in the Society. In the absence of specific language to this effect, the court must be taken to have the sole jurisdiction to make and control access.

[12] There have been a number of Court of Appeal cases which hold that access cannot be delegated to a third person (see Strobridge v. Strobridge (1994), 1994 875 (ON CA), 18 O.R. (3d) 753, 72 O.A.C. 379, 115 D.L.R. (4th) 489, 4 R.F.L. (4th) 169, [1994] O.J. No. 1247 (Quicklaw), 1994 CarswellOnt 400 (C.A.), revg (1992), 1992 7488 (ON SC), 10 O.R. (3d) 540, 95 D.L.R. (4th) 503, 42 R.F.L. (3d) 154, [1992] O.J. No. 1805 (Quicklaw), 1992 CarswellOnt 288 (Gen. Div.), Fergus v. Fergus (1997), 1997 1723 (ON CA), 33 R.F.L. (4th) 63, [1997] O.J. No. 4677 (Quicklaw) (C.A.), Williams v. Ellul (1996), 1996 1330 (ON CA), 19 R.F.L. (4th) 40, [1996] O.J. No. 335 (Quicklaw) (C.A.) and Behrens v. Stoodley, 1999 1626 (ON CA), [1999] O.J. No. 4838 (Quicklaw), 3 R.F.L. (5th) 8 (C.A.). These cases do not deal with the Children's Aid Societies which have a statutory duty to supervise children in their supervision.

[13] In Kawartha-Haliburton Children's Aid Society v. V.C., 2003 2292 (ON SC), [2003] O.J. No. 140 (Quicklaw) (S.C.J.), Justice Olah took a different view. She referred to Justice Granger's analysis and found that the court did have jurisdiction to require access at the discretion of the Society because the Society is statutorily mandated to supervise children in its care. We accept this view. [page88]

[14] The relevant sections of the Child and Family Services Act are s. 58(1) which allows the court to make an order for access if it is in the best interests of the children and s. 15(3) which sets out the responsibilities of the Children's Aid Society.

58(1) The court may, in the child's best interests,

(a) when making an order under this Part; . . .

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

15(3) The functions of a Children's Aid Society are to,

(a) investigate allegations or evidence that children who are under the age of sixteen years or are in the society's care or under its supervision may be in need of protection;

(b) protect, where necessary, children who are under the age of sixteen years or are in the society's care or under its supervision;

(c) provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;

(d) provide care for children assigned or committed to its care under this Act;

(e) supervise children assigned to its supervision under this Act;

(f) place children for adoption under Part VII; and

(g) perform any other duties given to it by this or any other Act.

[15] The paramount purpose of the Child and Family Services Act is to promote the best interests, protection and well-being of children. It is within this context that ss. 58 and 15 should be considered.

[16] Section 58 gives the court authority to determine access and to "impose such terms and conditions on the order as the court considers appropriate". Section 15(3) mandates that the Children Aid's Society is to "supervise" children assigned to its supervision.

[17] Taken together, these provisions, in our view, give the court authority to make an access order to be supervised in the discretion of the Children's Aid Society.

[18] The court will carefully consider whether parents should have access to children who are the subject of protection proceedings. Where access is considered in the child's best interest, the court will order it. In considering the child(ren)'s best interests, the court considers all facts, including the importance of [page89] a positive relationship with a parent and the risk that the child may be harmed by being kept away from a parent. The importance of the family is recognized, as is the duty to support it.

[19] The parent-child relationship is dynamic, always changing. Where an application for protection has been commenced, the relationship may also be difficult. Maximum flexibility is required to respond to the family's ongoing needs on a day-to-day basis. The parties should not have to return to court for every day-to-day access issue. That would not be in the children's best interest.

[20] The Society has the statutory mandate and the expertise to deal with these day-to-day issues. It is thus appropriate to leave the day-to-day discretion with it.

[21] Accordingly, we are of the view that reading together s. 58 and s. 15, in light of the objectives of the Child and Family Services Act, the court has authority to make an access order and as a term or condition to leave the day-to-day supervision, monitoring and decision-making to the Children's Aid Society.

[22] If counsel wish, they may exchange and submit submissions with respect to costs within 15 days.

Appeal dismissed.