WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(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.
CITATION: J.S.-R. v. Children’s Aid Society of Ottawa, 2020 ONSC 6467
COURT FILE NO.: 20-DC-2595
DATE: 2020/10/23
ONTARIO
DIVISIONAL COURT - SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF R.S.-R (DOB 2011) and E.S.-R (DOB 2015)
BETWEEN:
J.S.-R. (Mother) Appellant, Moving Party
– and –
Children’s Aid Society of Ottawa Respondent, Responding Party
J.S.-R. (Mother)-Self-Represented, Assisted by Brian Doody Juliet Kim / Hayley Marrison-Shaw, for the Respondent
HEARD: October 8, 2020
endorsement
Mackinnon J.
[1] The court heard a motion brought by J. S.-R. under s 121(3) and (4) of the Child, Youth Family Services Act, 2017, S.O. 2017, c.14, Sched.1. During the oral hearing I concluded that section 121(3) did not apply to this case. I exercised my jurisdiction as a Superior Court judge to determine the motion under s. 121(4) of the CYFSA and allowed the mother to deliver written submissions to request a stay of the Final Order on an alternate basis.[^1] I have now received her submissions and reply submissions from the respondent.
[2] Accordingly, the motion raises two issues. The first is whether the Final Order should be stayed pending appeal. The second is whether an order under section 121(4) of the CYFSA should be granted.
[3] The decision under appeal is a Final Order made by Parfett J. dated February 18, 2020 as follows:
There will be an order that the children RSR and ESR be placed in extended society care until the order is terminated under section 116 or expires under section123;
Access by JSR is at the Society’s discretion and in accordance with the best interests of the children; and
Access by the older sister H and by the maternal grandmother to also be at the Society’s discretion and in accordance with the best interests of the children.
[4] Justice Parfett had granted summary judgment finding the two children in need of protection due to the risk of physical and emotional harm stemming from the mother’s pattern of behaviour, frequent moves and mental health issues. She found there was a genuine issue regarding disposition and directed a trial of that issue.
[5] The evidence heard at the summary judgment motion was applied to the trial. In addition, five witnesses testified. The trial judge provided detailed reasons and set out her conclusions at paragraphs 44 to 49:
[44] JSR has had 21 months to address the concerns of the Society. These concerns have not changed. JSR consistently blames the Society for not doing more to help her to address their concerns. She said she was left to flounder until she received the FCCA report and even then, had to find her own parenting courses, etc. I accept that the Society could have done more to guide JSR. However, the ultimate responsibility for dealing with her issues resided with JSR. Her confrontational and obstructive attitude towards the Society meant they have also been working in a vacuum, without the collateral information that would have helped them assess JSR’s medical, employment, personal and psychological situation.
[45] Nor has it helped that JSR provided the Society with information she later admitted was false. The Society is reluctant to accept any written documentation from JSR that they cannot authenticate. Given JSR has been reluctant to sign releases or has only signed limited releases, such authentication has not been possible.
[46] As noted by the Society, these children need permanency. In his report, Dr. Woods concluded that,
[I]t is recommended that the children be deemed in need of being placed in the extended care of the Society with a view towards adoption if no kinship alternatives are available. (…) While it is possible that [JSR] may achieve some improvement in her ability to form collaborative working relationships and to decrease the traits of Paranoid Personality Disorder, it would require a significant commitment to long-term psychotherapy. (…) Both children would benefit from achieving permanency sooner than later in order to establish a healthy attachment while they are still young.
[47] JSR’s few months of psychotherapy fall woefully short of the kind of long-term assistance that Dr. Woods was recommending. Furthermore, JSR’s recent behaviour towards her children and the Society suggests that thus far, the therapy is not having the hoped-for result.
[48] In the circumstances, it is my view that the disposition that is in the best interests of these children and the least disruptive is an order for extended Society care.
[49] The Society has asked that there be an order for no access to the mother. They are relying on the recommendation of Dr. Woods, who noted that he had concerns that JSR would attempt to sabotage any placement if there were an openness agreement. However, there is no evidence that JSR would actively undermine any permanent arrangement for the children other than her inability to work with anyone in relation to her children. In my view, limited access to their mother, such as access in writing, is in the children’s best interests. More importantly, the children should not be cut-off from their older sister or their maternal grandmother.
[6] The children have not resided with their mother since April 2018 when they came into Society care. Prior to the Final Order the mother’s access was supervised for one hour twice per week. After the Final Order the Society reduced the access to one hour once a week, and then to one hour every other week. The older child has refused visits since May.
[7] The result the mother seeks in her Notice of Motion is to have specified supervised access to the children for seven hours every week. Oral submissions suggested four hours would be acceptable. Her Notice of Motion also seeks an order for joint decision making with the Society in respect to religious participation and education. During the hearing she suggested an order requiring the Society to provide documentary information to her on request with respect to the children’s registration in and participation in Jewish cultural and religious events would suffice. Similarly, she proposed the Society should be required to consider her underlying health conditions and Covid-19 conditions at the children’s school in deciding whether the children should attend school virtually or in person.
[8] The appeal is scheduled to proceed on December 15, 2020.
Issue One: Should the Final Order be Stayed?
[9] Rule 38(1) of the Family Law Rules, O. Reg. 114/99 as am, provides that where an appeal lies to Divisional Court rules 61, 62 and 63 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 apply. Rule 63.02(1) states:
63.02 (1) An interlocutory or final order may be stayed on such terms as are just,
(a) by an order of the court whose decision is to be appealed;
(b) by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken. O. Reg. 465/93, s. 8.
[10] The parties agree the applicable three-part test is set out in Children’s Aid of Ottawa-Carleton v. B.H., 2017 ONSC 4799 (Div. Ct.), namely whether there is a serious question to be tried, whether there will be irreparable harm to the child if a stay is not granted, and whether the balance of convenience favours granting a stay. The overriding consideration is the child's best interests. The elements of the test are interrelated such that the strength of one part can overcome weakness in another: Watt v. Howe, 2016 ONSC 7405.
[11] The threshold to meet the serious issue for appeal part of the test is not onerous. It is not the function of a stay motion to predict the outcome of the appeal, or to delve deeply into the merits of the appeal.
[12] The appellant submits there is merit and a serious issue for appeal in at least three of her grounds for appeal:
- What constitutes a minimum amount of access for said access to be meaningful?
- What reporting if any of a child’s religious activities should be required to be provided upon request to an access right holder named pursuant to section 105 of the CYFSA while a child is in Society extended care?
- What if any action is required by the Society to consider and accommodate the underlying health risks to an access right holder when choosing virtual versus in person schooling for a child in extended society care during the COVID-19 pandemic?
[13] The Society agrees the appeal raises serious issues for the appellate court but submits that the appeal lacks merit.
[14] In Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 and Van de Perre v. Edwards, 2001 SCC 60, the Supreme Court held that because of the fact-based and discretionary nature of family matters, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. An appeal court must only intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, and it is not entitled to overturn an order simply because it would have made a different decision or balanced the factors differently.
[15] Unless the appellant can succeed in overturning the order for extended society care she will face difficulty on the three issues set out above having regard to the applicable law. The Ontario Court of Appeal said of the predecessor legislation that, “an order of Crown wordship without access has the effect of terminating parental rights, making the children eligible for adoption.:” see Children’s Aid Society of Toronto v. S. (E.).,2013 ONCA 77. Children’s Aid Society of London and Middlesex v. A.L., 2018 ONSC 5973 is decided under the current legislation. It confirms at paragraph 129 that, “once a child is in extended society care, it is the Society (on behalf of the Crown) who has the rights and responsibilities of a parent for the purposes of the child’s care, custody and control”.
[16] Section 111 of the CYFSA reads as follows:
111 (1) Where a child is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the Crown has the rights and responsibilities of a parent for the purpose of the child’s care, custody and control, and the Crown’s powers, duties and obligations in respect of the child, except those assigned to a Director by this Act or the regulations, shall be exercised and performed by the society caring for the child.
(2) Where a child is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), and the child is found incapable of consenting to treatment under the Health Care Consent Act, 1996, the society may act in the place of a parent in providing consent to treatment on behalf of the child.
[17] The Society also has a statutory obligation under section 112 of the CYFSA to make all reasonable efforts to assist a child under extended society care “to develop a positive, secure and enduring relationship within a family through one of the following:
An adoption.
A custody order under subsection 116 (1).
[18] The consequences of an extended society care order also extend to access. The CYFSA stipulates in section 105 (4) that any order for access already made under Part V is terminated when the extended society care order is made. Section 105 (6) goes on to set out additional considerations for the best interests test when the court is asked to make an access order for a child in extended society care:
(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.
[19] An order for access after an extended care order has a different purpose than does one made before that determination. This is explained in Children’s Aid Society of the Region of Peel v. A.R., 2013 ONCJ 347:
[90] The Court finds that an access order should be made in all the circumstances of this matter. However, the access that will be granted will be significantly less than the current access. The granting of a Crown Ward order means the end of any effort to return the child to the mother’s care. Part of the reason for access prior to a Crown Ward disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child. Access once per month will allow the mother and child to maintain their connection and will hopefully allow the child to have some security in knowing that his biological mother is still a part, albeit a much smaller part, of his life. This access will be for at least two hours every month and it shall be supervised with the time and place of the access to be in the Society’s discretion. Only A.R. shall attend the access.
[20] Accordingly, a finding that the relationship is beneficial and meaningful to the child is necessary to obtain a post extended society care access order. The terms of such order will be made in the best interests of the child having regard to the child’s new status which entails a termination of the parental rights and the obligation of the Society under section 112 to seek out an adoption placement for the child.
[21] The mother’s position is that the access she seeks is in the children’s best interests because unlike the Final Order it would provide for access meaningful enough to develop and maintain a relationship. She submits it is unreasonable for her to have less access than she did prior to the Final order. Further she says the increased time would allow her to address the children’s religious instruction.
[22] In my view these submissions misapprehend the statutory provisions and case law applicable to access orders subsequent to an order for extended society care. The cases the mother submitted to support her submission that her current access should be more meaningful were orders made for temporary access pending final determination of child protection cases. They are not applicable here.
[23] The mother also referred to several cases decided during the COVID-19 pandemic where courts considered the vulnerability of a member of a child’s household in relation to whether the child should attend school in person or on line. These were cases where the parents shared decision making and residential care for their children but disagreed on the schooling issue during the pandemic. They did not involve children under extended society care. The cases are also distinguishable by the fact that the mother is not currently a member of her children’s household.
[24] All the cases turned on the court’s determination of the child’s best interests in the circumstances of each case. The mother submitted her underlying health issues make her more vulnerable to the coronavirus. The accommodation she seeks is by the children attending school on line and having in person access with her. She submitted a letter from her physician stating this would be beneficial to the children. The physician has been the appellant’s family doctor since June 2018. He does not state whether he has even met the children, has knowledge of their legal status, or provide any foundation for his opinion in relation to them. I give no weight to it.
[25] The mother’s submission elevates this one factor relevant to the children’s best interests to a determinative level. The Society decided on a broader basis that in person schooling was best for the children. It has shown its willingness to accommodate the mother’s health concerns in other ways by arranging access by video conference and by ensuring that masks are worn by all participants at in person visits.
[26] The second element in the test is whether the children would suffer irreparable harm if the stay is not granted. This element is often considered together with the balance of convenience since both ultimately turn on the best interests of the children involved in the appeal. The appellant points to the fact that the Society has not produced documentation to verify that the children are continuing to engage in their Jewish faith community while in extended society care. She says the irreparable harm is that the children may lose their connection to their Jewish faith and culture.
[27] She also relies on the possibility of irreparable harm to herself if the children acquire the COVID-19 at school and transfer it to her during access visits. Her view is that the balance of convenience also favours a stay because the children cannot be placed for adoption until the appeal is determined.
[28] The Society submits the children will not suffer irreparable harm if the stay is denied. To the contrary it says they would be more likely to suffer harm if the access were increased now, some eight months after the Final Order, only to be decreased again if the appeal is unsuccessful. The Society points to findings of the trial judge at paras 13 and 21:
[13] It appears that JSR has made the oldest child, RSR aware of the court proceedings. RSR expressed concern to Ms. Jacques, one of the CYCs, about returning home. Ms. Jacques testified that RSR appeared upset, fearful and worried. She had to be reassured that if she was returned to her mother’s care, she would still be able to speak to a teacher or other adult about any issues she was concerned about.
[21] RSR advised Ms. Wilson that she is worried about going home and worried about who will protect her from her mother given her older sister no longer lives at home. Ms. Wilson observed that RSR’s voice got shrill, she was talking quickly and was very emotional during this conversation. This conversation occurred very recently.
[29] The Society tendered evidence that the older child has not wanted to attend visits since April. The social worker has had multiple conversations encouraging her to go. The child refuses based on her upset at lies she believes her mother told her. The Society also deposed that issues continue to arise in the mother’s access to the younger child. These include questioning the child about her clothing and hygiene at the foster home, querying whether she had a needle mark on her arm or was being physically harmed in foster care, and pulling the child’s mask down to try to kiss her on the mouth. The Society worker also deposed that she has registered the children for Jewish community activities and sends religious information received from the mother to the foster parents.
[30] Consideration of all three parts of the test does not favour granting a stay. The analysis of the grounds for the appeal and the applicable law, including the standard of review applicable to the appeal, and the timing of the motion in relation to the date the appeal will be heard support the conclusion that the children’s best interests are better served by denying the stay and waiting for the determination of the appeal.
Issue Two: Should a temporary access order be made pending appeal?
[31] Section 121 (4) of the CYFSA provides as follows:
(4) The Superior Court of Justice may, in the child’s best interests, make a temporary order for the child’s care and custody pending final disposition of the appeal, and the court may, on any party’s motion before the final disposition of the appeal, vary or terminate the order or make a further order.
[32] The statutory provision refers only to the child’s best interests however additional considerations are found in G(A) v. Catholic Children’s Aid Society of Toronto, 1989 4409 (ON SC), [1989] O.J. No. 616 (Dist. Ct.). That court looked for a substantial material change in circumstances affecting the best interests of the child since the trial decision and/or a clear demonstration that the trial decision was substantially in error and clearly contrary to the child’s best interests.
[33] The submissions and analysis set out above in relation to the first issue also apply here and will not be repeated. Verification of religious opportunities and the children’s participation in them would have been helpful to the court. That said, there has not been a substantial material change in circumstances nor is the trial decision clearly wrong or clearly contrary to the children’s best interests.
[34] More recently in Children’s Aid Society of Toronto v. C.A., 2017 ONSC 1487 the court confirmed that the decision should be based solely on the best interests of the child. In that case the motion was not heard until after access had been terminated and a goodbye visit had taken place. The delay was very regrettable but nonetheless impactful on the outcome of the motion:
[30] I appreciate that this may seem unfair to CA. If this motion had been brought back in December, before access was terminated, access might have continued pending the appeal. The motion was not argued until March 2, 2017, through no fault of CA. In future, I would hope that these motions would be brought immediately. This court must deal with this motion on the facts of this case as they now exist. The test is the best interests of SE, not CA. And on the facts as they now exist, the answer is clear: it would not be in SE’s best interests to face the material risk of two final separations from CA. The motion is dismissed, without costs.
[35] I am not persuaded that it is in the children’s best interests to increase the mother’s contact with the children pending the appeal. Timing is certainly part of this. The evidence with respect to one child’s refusal to visit and of ongoing concerns arising during the mother’s visits with the other child does support an increase of access. I also note that the trial judge had suggested written contact only, whereas the Society is providing in person visits.
Conclusion
[36] For these reasons the motion is dismissed.
J. Mackinnon
Released: October 23, 2020
CITATION: J.S.-R. v. Children’s Aid Society of Ottawa, 2020 ONSC 6467
COURT FILE NO.: 20-DC-2595
DATE: 2020/10/23
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF R.S.-R. (DOB August 27, 2011) and E.S.-R. (DOB July 13, 2015)
BETWEEN:
J.S.-R. (Mother) Appellant, Moving Party
– and –
Children’s Aid Society of Ottawa Respondent, Responding Party
Endorsement
Mackinnon J.
Released: October 23, 2020
[^1]: I agree with the court in Children’s Aid Society of Ottawa -Carleton v. B.H., 2017 ONSC 4799 that section 21.9.1 of the Courts of Justice Act deems this appeal from the Final Order of a Superior Court judge under the CYFSA to go to Divisional Court. I disagree that section 21.9.1 also means the provision for a Superior Court judge to hear motions under section 121(4) of the CYFSA shall be deemed to refer to a single judge of Divisional Court. In my view a Superior Court judge is designated by the CYFSA to hear section 121(4) motions notwithstanding that the appeal lies to Divisional Court. The distinction is important given the greater ease with which litigants may schedule motions before a judge of the Superior Court of Justice.