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: 20200415 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.
Endorsement – COVID-19 Protocol
[1] AS 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/.
[2] In accordance with the Regional Notice to the Profession dated March 24, 2020, electronic materials were filed by the Respondent Mother (“RM”). She asked the Court to make an order that this matter be heard on an urgent basis. She brought her motion in response to the decision of the Durham Children’s Aid Society (“DCAS”) to suspend all face to face access at its Supervised Access Centre due to the COVID-19 crisis.
[3] This matter was referred to me as Triage Judge on April 8, 2020 for a determination of urgency and of how this matter should proceed. I found that the matter was urgent and ordered all parties and the Office of the Children’s Lawyer (“OCL”) to file materials to argue their respective positions. In my decision I included the following:
…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…
What 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
[4] I encouraged the parties to attempt to resolve the matter on consent, that is, to resolve the problem created by the Society’s termination of all face to face access between parents and children at their supervised access center.
[5] An issue has arisen requiring some clarification from me. The RM has filed a 14B motion that sets out the issue. She says that she believed that I required the parties to come to an agreement on safe “in-person” access. She says the Society appears to be taking the position that my endorsement simply requires that the parties consider “contact” that does not necessarily include in-person access.
[6] I want the parties to consider all options and come up with a solution that fulfills not only the mandate of the CYFSA, but also addresses the unique situation of the current COVID-19 crisis, taking child protection issues into account. However, these are unusual times. In some cases even children who are not in care are not enjoying face to face contact with a parent due to circumstances relating to COVID-19. The challenge here is to replace the suspended access with meaningful contact, including the possibility of face to face visits, in a manner that ensures the safety of, first and foremost, the children, but secondly, all others involved.
[7] The RM’s 14B motion dated April 14, 2020 and this endorsement will be filed in the court record upon the resumption of regular court operations.
[8] I repeat the portion of the decision in Ribeiro v. Wright, Hamilton File No. 517/19, released March 24, 2020. Pazaratz J. set out principles to aid in the determination of urgency, but I believe those same principles can be used to assist the parties here in reaching a resolution:
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.
The Honourable Mr. Justice P.W. Nicholson DATE: April 15, 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 2, lines 3-4 now reads: Durham Children’s Aid Society (“DCAS”)
Page 2, paragraph 3, line 3 now reads: Office of the Children’s Lawyer (“OCL”)
The first sentence in Paragraph 6 now reads: I want the parties to consider all options and come up with a solution that fulfills not only the mandate of the CYFSA, but also addresses the unique situation of the current COVID-19 crisis, taking child protection issues into account.