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 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, 2021 ONSC 630
DIVISIONAL COURT FILE NO.: 2596/20 DATE: 2021/01/27
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Shelston, Kristjanson and Favreau JJ.
BETWEEN:
J.S.R.
Appellant
–and–
THE CHILDREN’S AID SOCIETY OF OTTAWA
Respondent
–and–
H.S.R.
Intervenor
Brian Doody, for the Appellant J.S.R.
Juliet Kim and Hayley Marrison-Shaw for the Respondent
Adam Newman as agent for Cedric Nahum for the Intervenor H.S.R.
HEARD: December 15, 2020
BY THE COURT
[1] The appellant mother, J.S.R., appeals from the decision of Justice Parfett reported at CAS v. J.S.R., 2020 ONSC 1493. The trial judge ordered that two of the appellant’s children, R and E, be placed in extended society care pursuant to the Child Youth and Family Services Act, 2017, S.O. 2017 c. 14, Sched. 1 (“CYFSA”). Access was granted to the mother, their older sibling, H., and the grandmother. Access was ordered to be at the discretion of the respondent Children’s Aid Society of Ottawa and in accordance with the best interests of the children. The mother, H. and the maternal grandmother were named as access holders, as were the children.
[2] On this appeal the mother seeks an order that the children be placed in her custody subject to the supervision of the Society or, in the alternative, that she have specified access to both children. The older sister, H, is party to this appeal on the issue of access only. She also seeks to set aside the access order which gives the Society discretion to set the terms and conditions for access.
[3] The appeal is allowed only on the issue of terms and conditions of access. The mother’s primary argument for setting aside the extended society care order and replacing it with a supervision order was ineffective assistance of counsel. But the mother did not give notice to her former counsel. As a result, the panel could not consider the allegations. Family litigants must follow the process for raising ineffective assistance of counsel. In any event, there was no evidentiary basis for the claim.
[4] The trial judge’s decision on extended society care is upheld, as she made no errors of law or palpable and overriding errors of fact and made no error of principle in finding that extended society care was warranted.
[5] The appeal is allowed on terms and conditions of access. It was an error in law for the trial judge to delegate all discretionary decisions on the type, frequency and duration of the children’s access to their mother and sibling to the discretion of the Society. Sections 104 and 105 of the CYFSA make it clear that it is the court’s obligation to impose the terms and conditions of an access order. This is a discretionary decision. Nothing in the language of sections 104 or 105 of the CYFSA either explicitly or implicitly includes the power to sub-delegate the decision as to terms or conditions of access to a nonjudicial actor such as a Society. That power is statutorily reserved to a judicial decision-maker.
Factual Background
[6] The trial judge first held a long summary judgment hearing over eight days in August and October 2019. The Society sought a finding that there was no genuine issue for trial, and an order for extended society care for the children with no access to the mother. On December 19, 2019, the trial judge released her summary judgment decision, reported at Children’s Aid Society (Ottawa) v. J.S.R., 2019 ONSC 7419. The trial judge held that both children were in need of protection due to the risk of physical and emotional harm stemming from the mother’s pattern of behaviour, frequent moves and the mother’s mental health issues. The trial judge found that there was a genuine material issue as to the appropriate disposition and directed that the question of disposition proceed to trial.
[7] The trial on disposition was held over three days in January 2020. The trial judge considered the evidence from the summary judgment motion as well as the testimony of the mother and four Society witnesses at trial.
Background Facts Relevant to H.
[8] H. is the oldest daughter of the mother and sibling to the two children. By order dated October 29, 2020, H. was added as an intervenor on the appeal on the sole issue of the access order made in her favour. H. argues that the trial judge made an error in law when she ordered that access would be at the discretion of the Society.
[9] H. seeks an order that she have rotating access weekly with her siblings, E. and R., for one visit per week in-person in the community for at least two hours per visit. In the alternative, H. submits that the matter be remitted to the Superior Court of Justice for adjudication on the access issue only.
Jurisdiction
[10] The Divisional Court has jurisdiction to hear this appeal pursuant to s. 121(1) of the CYFSA and ss. 21.8 and 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”):
Standard of Review
[11] There are two aspects to the standard of review on child protection appeals. First, the court owes a special duty to protect the safety and well-being of children. The best interests of the children are the paramount concern in child protection proceedings: Children’s Aid Society of Toronto v. V. L., 2012 ONCA 890, 249 O.A.C. 388. at para. 15.
[12] Second, the appellate standard set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 applies to child protection appeals. For questions of law, the standard of review is correctness, for questions of fact, palpable and overriding error, and for questions of mixed law and fact, the standard varies. When a legal principle can be extracted from the question of mixed law and fact, the standard for that question is correctness. When the issue is applying the correct legal principles to the facts, the standard is palpable and overriding error.
Issues in Appeal
[13] This appeal raises these issues:
(1) Should fresh evidence be admitted on appeal?
(2) Did the mother have ineffective assistance of counsel in matters leading to trial, and can she raise this issue on appeal without providing notice to her former counsel?
(3) Did the trial judge err in making the extended society care order?
(4) Did the trial judge err in holding that access to both the mother and the sister should be at the discretion of the Society?
Fresh Evidence on Appeal
[14] Both the mother and H. sought to file fresh evidence on this appeal. The test for admitting fresh evidence in a child protection appeal has been set out in L.M. v. Peel Children's Aid Society, 2019 ONCA 841 at para. 84:
Section 121(6) of the CYFSA provides that the court may receive further evidence relating to events after the appealed decision. This court has ruled that such fresh evidence should be admitted in a child protection proceeding if it: (a) could not have been adduced before; (b) is highly relevant in that it provides the court with an accurate picture of the situation at hand; (c) is potentially decisive to the child’s best interests; (d) is credible; (e) is uncontroverted; and (f) updates evidence submitted between the time of the prior hearings and the appeal. A flexible approach should be taken, given the need for accurate and up-to-date information concerning the child’s best interests: see Children's Aid Society of Toronto v. P.M., 2015 ONCA 695, 71 R.F.L. (7th) 44, at paras. 22-23.
Fresh Evidence of H. Is Admitted
[15] H. sought leave to file her affidavit dated November 18, 2020 as fresh evidence on this appeal. H. states that since the trial decision in February 2020 she has had three visits with her sister E. and no visits with her sister R. She sets out a timetable for visits that she would like in the future. She believes that the Society will continue to limit her visits and that eventually she will be entirely cut off from her sisters. The CAS opposes the admission of the evidence, denies the allegations, and although it brought no motion to adduce fresh evidence, it seeks to rely on an affidavit dated September 9, 2020 that is not contained in the Appeal Book or the Society’s Compendium.
[16] While H. did not bring a motion, Mackinnon J.’s October 29, 2020 endorsement adding the sister as a party notes that she may “seek an order from the appeal panel itself for permission to introduce fresh evidence which must be limited to her personal knowledge and observations, and relevant to the specific issue, namely the appeal from the trial judge’s award of access to her.” The endorsement did not specifically refer to bringing a motion to admit fresh evidence. Yet the sister included the evidence in her Compendium and made submissions on the admissibility of the fresh evidence in her factum. All parties were aware of exactly what H. sought to adduce and were able to respond.
[17] The evidence meets the test to adduce fresh evidence discussed above. The evidence was not available at the time of trial because it concerns events that happened after the trial. It is potentially decisive to the children’s best interests, as it deals with discretionary access provided by the Society, and the children are access holders. The evidence is reasonably capable of belief because it is sworn, the affiant was available for cross-examination, and there is no contradictory evidence. We have admitted H’s affidavit as we find that it is in the best interests of the two children.
Mother’s “Fresh Evidence” Is Not Admitted
[18] The mother did not bring a motion for fresh evidence. Although one of her grounds of appeal was that there was fresh evidence contradicting the assessment of one of the health professionals upon whom the trial judge relied, it is not clear what evidence she relies upon. There was no fresh evidence in either the Appeal Book or Compendium. In her reply factum she referred to “fresh affidavit evidence of the Appellant’s documented community treatments for mood-altering substances and for psychotherapy.” The CAS did not have the requisite notice of whatever fresh evidence the mother wished to rely upon, and no motion is before the Court.
[19] After making his submissions on behalf of the mother and hearing the submissions of H. and the CAS on the appeal, counsel for the mother sought leave to file fresh evidence, despite not having filed any updated affidavit. The panel advised the parties that we would reserve our decision on the admission of fresh evidence.
[20] On December 17, 2020, two days after the appeal was argued, the mother filed, without leave of the panel, an affidavit dated December 16, 2020 seeking that it be admitted as fresh evidence. Since the affidavit was introduced after the appeal it cannot be considered. In any event, it does not meet the criteria for admission.
Ineffective Assistance of Counsel Cannot Be Raised Without Notice
[21] In oral submissions, the mother argued that her former counsel provided ineffective assistance in the process leading to trial and highlights two litigation decisions she now questions. Yet the mother did not serve former counsel with a notice that she would be alleging ineffective assistance of counsel.
[22] In Windsor-Essex Children's Aid Society v. R.H.C., 2016 ONCA 595 at para. 5 the Court of Appeal held that the test for establishing ineffective assistance of counsel in the child protection context is set out by the Divisional Court in K.R. v. CAS, 2015 ONSC 3769 at paras. 7-8, which, in turn, draws on the principles set forth in R. v. Archer (2005), 2005 36444, 202 C.C.C. (3d) 60 (ON CA), at paras. 119-120. In Windsor-Essex, the Court of Appeal implicitly approved of applying the principles from the Superior Court of Justice Protocol–Allegations of Incompetence: Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-2017, Schedule 1 in child protection proceedings where ineffective assistance of counsel is argued.
[23] The Superior Court of Justice Protocol–Allegations of Incompetence, establishes that notice is a critical element of an ineffective assistance of counsel claim. Providing former counsel with notice is a basic requirement of natural justice when counsel’s conduct of litigation is questioned. Here, the appellant mother was self-represented until shortly before the hearing. In such a case, the self-represented litigant must still discharge the basic obligations of providing notice to former counsel, and providing former counsel with an opportunity to consider participating in the court proceeding.
[24] Paragraphs 1, 2, and 3 of the Superior Court of Justice Protocol–Allegations of Incompetence provide:
Before raising the incompetence or ineffective assistance of counsel, or that counsel otherwise contributed to a miscarriage of justice, appellate counsel has an obligation to satisfy themselves as soon as possible, by personal inquiry or investigation, that there is some factual foundation for the allegation, apart from the instructions of the appellant: R. v. Elliott (1975), 1975 1501 (ON CA), 28 C.C.C. (2d) 546 (Ont. C.A.), R. v. Hofung (2001), 2001 4796 (ON CA), 154 C.C.C. (3d) 257 at paras. 47-48 (Ont. C.A.), R. v. Wells (2001), 2001 24130 (ON CA), 139 O.A.C. 356 at para. 76.
Appellate counsel should provide trial counsel, including duty counsel, with informal notice of the general nature of the potential allegations concerning ineffective assistance, and give counsel a reasonable opportunity to respond to the potential allegations. While not essential to permit trial counsel to respond (R. v. Dunbar and Logan (1982), 1982 3324 (ON CA), 68 C.C.C. (2d) 13 (Ont. C.A.)), appellate counsel should seek a waiver in writing of solicitor-client privilege with respect to communications between the Appellant and trial counsel, insofar as it is necessary to preserve the professional integrity of counsel, while responding to the allegation. The waiver should be filed with the Notice of Appeal, or Supplementary Notice of Appeal.
When appellate counsel decides to make the allegation public in a Notice of Appeal, Supplementary Notice of Appeal, Factum or affidavit, appellate counsel must first provide trial counsel with a copy of the document. Similarly, appellate counsel must provide trial counsel with a copy of subsequent documents that deal with the allegations.
[25] The mother’s former counsel was never advised of the claim of ineffective assistance or given an opportunity to respond. Former counsel was not provided with the Notice of Appeal and appeal materials. Thus, it would be inappropriate for this Court to consider the claims.
[26] In any event, there was no affidavit evidence filed to establish the ineffective assistance claim and the former lawyer’s file was not produced. The mother relied only on inferences. Therefore, even if notice had been provided to the former lawyer, there is no evidentiary basis for making a finding of ineffective assistance of counsel.
[27] The ineffective assistance ground of appeal is dismissed.
No Error in Making Extended Society Care Order
[28] In seeking to set aside the extended society care order, the mother raised numerous grounds of appeal in her Notice of Appeal and facta. In addition to ineffective assistance of counsel and access, discussed below, the other primary grounds of appeal raised are stated as follows:
(a) the mother suffered from PTSD, lacked capacity to consent to a parenting capacity assessment and the order was made absent the necessary safeguards for the understanding of the nature and consequences of a parenting capacity assessment in a child protection proceeding.
(b) the Society has not met the religious and cultural needs and values of the family of the children since apprehension.
(c) the children have not attended an educational institution in the language of instruction of the appellant’s choosing.
(d) the least intrusive measures were not considered or explored to keep the family unit intact.
(e) the mother faced discrimination from the court and the Society.
(f) there is significant fresh evidence that contradicts Dr. Woods’ diagnosis, treatment and prognosis.
(g) there is no investigation prior to the apprehension of the children relating to abuse of power and bad faith measures taken by the Society against the mother.
(h) the trial judge used an apprehension of bias when making her decision.
(i) the children had a right to legal counsel for the trial.
(j) the trial judge deemed there to be at genuine issue for trial but only proceeded with a disposition hearing.
[29] The mother does not contest the finding that the children need protection. The mother submits that the appropriate disposition would have been that the children be in her care with supervision by the Society or, in the alternative, specific terms of access. But the mother has established no error in law or principle, or palpable and overriding error of fact.
[30] The trial judge found that the children were in need of protection based on these findings, all of which were open to her based on the evidence:
(a) the mother suffers from a paranoid personality disorder and that this disorder explains much of the mother’s negative attitude and behaviour toward the Society. This conclusion rested on the testimony of Dr. Woods who was appointed to conduct a parenting capacity assessment. There was no evidence filed by the mother to rebut Dr. Woods’s conclusions.
(b) the mother’s disorder negatively impacts her ability to parent.
(c) R. was subjected to physical discipline by her mother and that she suffered emotional harm as a result.
(d) the mother’s frequent moves of residence and schools have led to both children suffering from delays in their education.
[31] In her reasons for judgment dated February 18, 2020, the trial judge made findings of fact which she relied on in determining that extended society care was the appropriate disposition:
(a) the mother’s plan requires cooperation by the mother where she is prepared to openly share information. But the mother’s history with the Society has shown that any working relationship would be unlikely to succeed.
(b) the mother has demonstrated a lack of insight into the impact her behaviour has on her children.
(c) the mother has had 21 months to address the concerns of the Society, but the concerns have not changed.
(d) Dr. Woods’ evidence of his major concerns about R.’s emotional development and sense of safety and security are based on statements made by the child to the doctor, about fears of reprimands from her mother, and worries of visits going to an unsupervised capacity because of the possibility of her mother’s demeanour changing for the worse.
(e) the mother failed to provide collateral information to the Society to allow them to assess her medical, employment, personal and psychological situation.
(f) Dr. Woods’s report concluded that the children be placed in extended society care.
(g) the mother would require significant commitment to long-term psychotherapy to improve her ability to collaborate and to decrease her paranoid personality traits but the mother’s few months of psychotherapy fell woefully short of the kind of long-term care recommended by Dr. Woods.
[32] We do not find any merit in the submissions advanced by the mother. The factual findings made by the trial judge were fully supported by the evidence. We do not find that the trial judge made any palpable or overriding error of fact.
[33] We do not find that the judge erred in law. Nor is there an error in principle in the exercise of her judicial discretion, which we find was exercised consistently with the paramount consideration of the best interests of the children.
Error in Law Regarding Access
[34] Both the mother and H. submit that the trial judge’s decision that access be at the discretion of the Society was an error in law. The mother and H. submit that the court cannot delegate the exercise of its discretion to the Society, as the court has sole jurisdiction to determine access. We agree that the trial judge erred in law in delegating all terms and conditions of access–type, frequency and duration–to the discretion of the Society.
[35] At trial Dr. Woods testified that he recommended extended society care for these children, but that access should not necessarily be defined at this point. He found that there were positive aspects of the access visits and that it was not in the children’s best interests to cut off access. He proposed that there should be restrictions on the mother and H.’s access.
[36] The trial judge dealt with access at para. 49 of her reasons for judgment:
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 J.S.R. would attempt to sabotage any placement if there were an openness agreement. However, there is no evidence that J.S.R. 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.
[37] Based on that finding, the trial judge ordered access to the mother, the older sister H. and the maternal grandmother to be at the Society’s discretion and in accordance with the best interests of the children. The minor children, the mother, H. and the grandmother were all named as access holders. Although the trial judge had commented in para. 49 that in her view very limited access to the mother, such as access in writing, was in the children’s best interests, she chose not to make this part of her final order and left all decisions about the terms and conditions of access to the discretion of the Society.
[38] Section 104 of the CYFSA provides the court with jurisdiction to determine access in the child’s best interests. Section 104(1) provides that the court may “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.” Section 104 makes it clear that it is the court that makes an order respecting access, and it is the court that is to impose terms and conditions “as the court considers appropriate.”
[39] Section 105 of the CYFSA sets out the factors that the court must consider in making an access order. Here, the children were placed in extended society care pursuant to section 116(1)(c) of the CYFSA. Sections 105(4) – (8) apply:
Existing access order terminated if order made for extended society care
(4) Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), any order for access made under this Part with respect to the child is terminated.
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 interest 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.
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.
When court to terminate access to child in extended society care
(8) The court shall terminate an access order 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) if the order is no longer in the best interests of the child as determined under subsection (6).
Society may permit contact or communication
(9) If a society believes that contact or communication between a person and a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) is in the best interests of the child and no openness order under Part VIII (Adoption and Adoption Licensing) or access order is in effect with respect to the person and the child, the society may permit contact or communication between the person and the child.
[40] Together with the criteria set out in section 105, in making an access order the judge must consider the factors relating to the best interests of a child under section 74(3) of the CYFSA:
73 (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.
[41] It is important to recognize the significance and basis of an access order made after an order for extended society care. As stated by Kukurin J. in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H., 2018 ONCJ 453 at para. 24:
The purpose of an access order after a child is ordered into extended society care is different than the purpose of an access order before an extended care order is made. The extended care order presumes that the child and the access seeker will not be re-united in one family. In fact, the permanency plan for such child is necessarily with someone else. So why have an access order? The main reason is because, for the child, the relationship with the access seeker is one that has been, and is, beneficial and meaningful...
[42] Having found that the access orders made in favour of the mother and sister were, indeed, in the best interests of the child, can the court delegate all aspects of that access–including all decisions about type, frequency, and duration–to the Society? There are two streams of jurisprudence that have evolved on ordering access at the discretion of a Society, thoroughly reviewed by Harper, J. in C.A.S v. K.D.D., 2020 ONSC 511. The first stream of jurisprudence finds that it is an error in law for a court to delegate a child’s access rights at the discretion of a Society. At paras. 45 and 46, Harper, J., stated:
[45] I am of the view that a court cannot and should not delegate its exercise of discretion when ordering access. It is the court that must balance and evaluate the evidence within the consideration of the factors set out in the statute. Expediency cannot override such considerations.
[46] I am also of the view that in certain circumstances, after the court has made the determination that access is appropriate, it may be necessary to set out certain parameters and guidelines to a party who may be placed in a position of having to facilitate that access given the unique circumstances of each case that is presented a court.
[43] Several other judges of the Superior Court and Ontario Court of Justice have refused to grant requests by a Society that access would be at the discretion of the Society because such an order would improperly delegate the jurisdiction of the court to make an order for access: Children’s Aid Society of Toronto v. N.N., 2017 ONCJ 827; Children’s Aid Society of Toronto v. D.P., [2005] O.J. No. 930 (S.C.J.); Children’s Aid Society of Toronto v. B.O., 2003 74523 (ON CJ), [2003] O.J. No. 4247 (O.C.J.), at paras. 46-48; Children’s Aid Society v. C.B., [2007] O.J. No. 3573 (O.C.J.), at paras. 53-55; and Children’s Aid Society of London and Middlesex v. C.(G.), 2001 28530.
[44] The second stream of jurisprudence supports the court ordering access at the discretion of a Society. The Society submits that it is statutorily mandated to supervise children in its care, thereby permitting courts to allow the Society to have discretion with respect to an individual’s access. The Society submits that the Divisional Court has previously ruled that such an order is within the discretion of the court. In H.C. v. Durham CAS, 2003 57951 (ON SCDC), 2003 64 O.R. (3d) 84, the Divisional Court stated at paragraphs 19 and 20:
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 issues. That would not be in the children’s best interest.
The society has the statutory mandate and expertise to deal with these day-to-day issues. It is thus appropriate to leave the day-to-day discretion with it.
[45] We find that H.C. v. Durham CAS (supra), is distinguishable because it was an appeal of a temporary order made at a care and custody hearing. In this case, by contrast, the decision places the children in extended society care for purposes of adoption after a hybrid proceeding involving a motion for summary judgment and then a trial which heard viva voce evidence including a parenting capacity assessment. A temporary order is intended to remain in place until a trial. It may, however, be reconsidered or varied as circumstances change prior to a final determination. A final order is intended to determine the party’s rights without further litigation.
[46] The second case relied on by the Society is Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415. The Court of Appeal restored a trial judge’s decision of extended society care with access to the mother at the Society’s discretion. The issue was the proper test to be applied in determining access as a result of the changes in the child protection legislation with the passage of the CYFSA. At paras. 46, 64 and 65, Benotto, J.A., stated:
[46] The new access test is no longer a “beneficial and meaningful” test. It is now a best interests test with a statutory requirement to consider whether the relationship is beneficial and meaningful for the child as one aspect of that analysis. When a court considers a child’s best interests it should consider all relevant factors, including–as I discuss below–whether past, present or future. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child.
[64] The CYFSA requires a new approach to determining access. I note too that access can come in many forms that depart from in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access. The form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes.
[65] I adopt the words of Sager J. relied on by the trial judge, as set out in Jewish Family and Child Service:
The introduction of the best interests test in the CYFSA brings a less rigid and more flexible approach to deciding whether to order access to a child placed in the extended care of the society, as a court is now permitted to give consideration to any factor it considers relevant, one can assume, on the well accepted principle in cases involving children that one size does not fit all.
The trial judge here endorsed this approach and added:
When a court considers a child’s best interests it should consider all relevant factors, whether they be past, present or future considerations. That is what courts do in making custody and access decisions–there is a predictive element in all of these decisions. There is no need for a court to confine itself to past or present circumstances in conducting its analysis. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child. The more expansive analysis will permit courts to make the best possible decisions for children. [Emphasis in original.]
[47] There is a fundamental difference between Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 and the case at bar. In Children’s Aid Society of Toronto v. J.G., Sherr J. had significantly circumscribed the discretion of the Society as to form, duration and frequency by setting minimum access rights. Sherr J. granted the mother access at the discretion of the Society but required that the mother would have at least six visits each year for at least one hour each, and further required the Society to ensure that the mother had a recent picture of the child 4 times each year.
[48] We find that on the facts here, it was an error in law for the trial judge to delegate all discretionary decisions on the type, frequency and duration of the children’s access to their mother and sibling to the discretion of the Society.
[49] Section 104 of the CYFSA makes it clear that it is the court’s obligation to impose the terms and conditions of an access order. This is a discretionary decision. Nothing in the language of sections 104 or 105 of the CYFSA either explicitly or implicitly includes the power to sub-delegate the decision as to terms or conditions of access to a nonjudicial actor such as a Society.
[50] In fact, the language of section 105(8) implies the opposite. That section provides that: “If a society believes that contact or communication between a person and a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) is in the best interests of the child and no …access order is in effect with respect to the person and the child, the society may permit contact or communication between the person and the child”(emphasis added). Without an access order in effect, a Society has discretion about contact and communication. But there is now an access order with no terms. This contradicts the statutory provision, which reserves Society discretion to situations in which there is no access order in effect.
[51] A judicial decision that delegates the discretionary elements of access including type, frequency, and duration to a Society offends the principle against sub-delegation: A.G. of Canada v. Brent, 1956 5 (SCC), [1956] SCR 318 at 321. It is a decision to delegate discretionary adjudicative authority to a nonjudicial actor where the power is statutorily reserved to a judicial decision-maker. We adopt the comments of Goodman, J. with respect to a previous version of the statute: Children's Aid Society of Toronto v. P. (D.), 2005 CarswellOnt 922, [2005] O.J. No. 930 (S.C.J.) at para. 40, rev'd on other grounds, Children's Aid Society of Toronto v. D.P., 2005 34560 (ON CA):
Yet, I do find it difficult to accept that the legislature ever intended to leave decisions regarding access to children in the hands of one of the litigants, itself, particularly where children have no right of access to their parents unless an order for access is made under Part III…While I can certainly understand some of the reasons why it would be efficient, time—and or cost-wise to delegate access issues to the CAS, children and their parents have a right, in my view, to have decisions in respect of access made in an objective and neutral manner. One would expect that it would be rare, if ever, that legislation would authorize a court to delegate its judicial functions to any third party who/which is a party to the litigation, when neutrality and objectivity are so vital to the decision-making process. In my view, simply put and at least on a final basis, the CFSA does not permit, either expressly or by implication, the court to delegate its authority to make orders in respect of access under section 58 to any person or entity, including the CAS.
[52] The trial judge found that the mother was challenging to work with, failed to provide consents to contact collaterals, was rude to workers and spoke negatively about the workers with the children present. Even so, the trial judge accepted the evidence from Dr. Woods that it was in the best interests of these children to have access to their mother and that access to H. and the maternal grandmother should not be cut off.
[53] We find that H’s relationship with her two younger siblings has been limited, despite the trial judge’s finding that the children should not be cut off from their older sister. While the mother’s request to admit fresh evidence was denied, her access rights as well should not be limited to the discretion of the Society.
[54] We find that granting a Society the discretion to determine the type, frequency and duration of access, including whether access will take place at all, is an inappropriate delegation of the court’s role to determine access terms and conditions pursuant to section 104 and 105 of the CYFSA.
[55] That said, it is important to distinguish between discretionary “visits” and the right of access resting in access holders. As the Court of Appeal held in Children's Aid Society of Toronto v. D.P., 2005 34560 (ON CA) at para. 12, a Society has “the right to control who may visit the children and when,” as would a custodial parent. For example, if the access order stipulates in-person visits six times a year for an hour, a Society retains the discretion to grant additional visits, or to supplement in-person visits with additional written communication. In this sense, the right of access granted by a court may be supplemented by a Society’s discretionary decisions about visits. But the minimum rights of access must be established by the court. For these reasons, the appeal is allowed on the issue of the terms and conditions of access only. The Society has requested that if this court finds an error that a substituted order be given instead of an order for a new trial because the children deserve permanency.
[56] We agree that the children need and deserve permanency but on the record before us we cannot make a substituted order on access. As a result, we remit the matter to the trial judge on the issue of access only. The trial judge shall determine the appropriate process for finally determining the terms and conditions of access, in accordance with the reasons given above. Considering the delay to date, and the best interests of the children which requires proceeding expeditiously on matters under the CYFSA, we request that the Superior Court of Justice, East Region, consider expediting the process to achieve certainty and finality for all access holders.
Disposition
[57] The mother’s appeal of the decision to place the children in extended society care is dismissed.
[58] The appeal of the decision to grant access to the mother and H. at the discretion of the Society is allowed only on the issue of the terms and conditions of access to the mother and H. The matter is remitted to the trial judge, who shall determine the appropriate process for finally determining the terms and conditions of access. We request that the Superior Court of Justice, East Region, consider expediting the process to achieve certainty and finality for all access holders.
[59] No party requested costs. There shall be no order as to costs.
___________________________ Shelston J.
Kristjanson J.
Favreau J.
Date of Release: January 27, 2021
CITATION: J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630
DIVISIONAL COURT FILE NO.: 2595/20 DATE: 2021/01/17
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Shelston, Kristjanson and Favreau JJ.
BETWEEN:
J.S.R.
Appellant
–and–
THE CHILDREN’S AID SOCIETY OF OTTAWA
Respondent
–and–
H.S.R.
Respondent
REASONS FOR JUDGMENT
By the Court
Date of Release: January 27, 2021