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.
Court File and Parties
COURT FILE NO.: FC-06-164-02 (LQ-B) FC-06-164-03 (GQ-C) FC-06-164-04 (NQ)
DATE: 20200408 CORRECTED DATE: 20200605
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Durham Children’s Aid Society, Applicant AND: JQ, AL, KC, DB and NG, Respondents
BEFORE: Nicholson J.
COUNSEL: Allison McGregor, for the Applicant Michael Tweyman, for the Respondent, JQ June Mayhew, for the Respondent, AL KC (Re. FC-06-164-03 GQ-C), Self-Represented Respondent DB (Re. FC-06-164-02 LQ-B), Self-Represented Respondent – Not Present NG (Re. FC-06-164-04 NQ only), Self-Represented Respondent – Not Present Kenneth Dutka, for the OCL (Representing NQ) Joanne Ferguson, for the OCL (Representing LQ-B)
HEARD: In Chambers
Corrected Endorsement: The text of the original Endorsement was corrected on June 5, 2020 and the description of the correction is appended.
E N D O R S E M E N T – COVID-19 PROTOCOL
Endorsement
1AS A RESULT OF COVID-19, the regular operations of the Superior Court of Justice operations are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
2In accordance with the Regional Notice to the Profession dated March 24, 2020, electronic materials were filed by the Respondent Mother (“RM”). She asks that the Court make an order that this matter be heard on an urgent basis. She brings this motion in response to the decision of the DCAS to suspend all face to face access at its Supervised Access Centre due to the COVID-19 crisis.
3This matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed.
4For the reasons set out below, notwithstanding the fact I have yet to hear from all responding parties and the Office of the Children’s Lawyer (“OCL”) (I have received one responding email from Joanne Ferguson), I find that this matter is urgent at this time. The motion was served on all relevant parties and the OCL.
5All of the materials and this endorsement will be filed in the court record upon the resumption of regular court operations.
6To avoid counsel and parties wasting resources and time on filing responses to the 14B procedural motion for urgency, I will grant the request for a teleconference and everyone can focus their energies on, firstly, trying to resolve the issues on consent, and secondly, filing substantive responses and proposals to address the issues raised by the RM in her motion proper.
Analysis
7In Ribeiro v. Wright, Hamilton File No. 517/19, released March 24, 2020, Pazaratz J. set out principles to aid in the determination of urgency in this difficult time. Those principles are as follows:
a. In most situations, there is a presumption that existing parenting arrangements and schedules should continue, subject to modifications to ensure that COVID-19 precautions are adhered to, including social distancing. b. In some cases, a parent may have to forego scheduled time with a child, for example if a parent is under personal restrictions such as self-isolation for 14 days, due to travel or exposure to the illness; c. In some cases, personal risk factor through employment or associations may require controls on direct contact on a child. d. Further, lifestyle or parental behaviour in the face of COVID-19 may necessitate restrictions on parenting time. There would be zero tolerance for a parent who recklessly exposes a child to any COVID-19 risk. e. I would add that there may be risk factors related to the health or other circumstances of a child or other members of a household that may necessitate adjustments.
8Pazaratz J. stressed that no matter how difficult the challenge, or what modifications or restrictions may be appropriate, we must find ways to maintain important parental relationships, above all in a safe way.
9In Cooper v. Teneyck, 2020 ONSC 1876, Madsen J. stated:
This is a circumstance that demands the best of parents and requires them to work together, no matter their differences, to craft the safest options for children while ensuring that children derive the benefit of the love, nurturance, and guidance of both of them. Of course, the overriding requirement on parents is to keep the health, well-being, and best interests of their children at the forefront of their decision-making.
10Child protection matters add another layer of complication to the current environment. The CAS has a mandate of protecting children. In these times they have to also consider the safety of other families, staff and foster families in the face of the serious risks associated with COVID-19. However, there is no automatic presumptive authority extended to the Society to suspend all in-person access to parents without formulating some alternative measures to preserve the important relationships of children to their birth parents. The Child, Youth and Family Services Act, 2017 requires the Society to balance the paramount purpose of the legislation “to promote the best interests, protection and wellbeing of children,” (see s 1 (1)) with the other purposes, including “…supporting the autonomy and integrity of the family unit” and considering “the least disruptive courses of action available and appropriate in a particular case to help a child.” (see s 1 (2) 1 and 2).
11In this case, the Durham CAS has made a decision to stop all access at its SAC.
12What is “urgent” at this time is that the Society, the parents and the OCL counsel all work together to create an access regimen that will work in the current circumstances.
Directions
13The RM shall serve all participating parties and the OCL with a copy of all of the materials submitted to the Court and copies of her motion proper and a copy of this Endorsement forthwith by email.
14A teleconference shall be held on April 28, 2020 at 10:15 AM. This is the first available date for the parties and the court, allowing time for filing materials. As such, the parties are strongly urged to attempt to resolve the matter by way of a consent variation to avoid the need to file materials and attend on the conference.
15Materials are to be filed by email to the trial co-ordinator at Oshawa.SCJ.TC@ontario.ca
16The RM shall file her motion by April 8, 2020. All responses are to be filed by April 17, 2020 and the RM’s reply by April 22, 2020.
17The parties are to call 866-633-1033, ID 8996654
The Honourable Mr. Justice P. W. Nicholson
Released: April 8, 2020
Corrections
June 5, 2020 – Corrections:
- Style of Cause now reads: RE: Durham Children’s Aid Society, Applicant AND: JQ, AL, KC, DB and NG, Respondents BEFORE: Nicholson J. COUNSEL: Allison McGregor, for the Applicant Michael Tweyman, for the Respondent, JQ June Mayhew, for the Respondent, AL KC (Re. FC-06-164-03 GQ-C), Self-Represented Respondent DB (Re. FC-06-164-02 LQ-B), Self-Represented Respondent – Not Present NG (Re. FC-06-164-04 NQ only), Self-Represented Respondent – Not Present Kenneth Dutka, for the OCL (Representing NQ) Joanne Ferguson, for the OCL (Representing LQ-B)
- Page 2, paragraph 2, line 2 now reads: Respondent Mother (“RM”).
- Page 2, paragraph 4, line 2 now reads: Office of the Children’s Lawyer (“OCL”)
- Page 2, paragraph 4, line 3 now reads: Joanne Ferguson
- The case name in paragraph 9 has been corrected and is now shown as Cooper v. Teneyck
- Page 4, paragraph 16 now reads: April 17, 2020
