Court File and Parties

COURT FILE NO.: FC-20-63-00 DATE: 20200330 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dnaagdawenmag Binnoojiiyag Child and Family Services, Applicant AND: B.RP, Respondent

BEFORE: The Honourable Madam Justice R.S. Jain

COUNSEL: Jeffrey Hustins, Counsel for the Applicant Chris Severn, Counsel, for the Respondent

HEARD: March 30, 2020

Endorsement

Re. Temporary Care and Custody Hearing via telephone conference

[1] This matter came before me by way of a motion by the Mother requesting an order returning the child L.D, born […], 2013 into the Mother’s temporary care subject to Dnaagdawenmag Binnoojiiyag Child and Family Services (Dnaagdawenmag Binnoojiiyag or the Agency) supervision.

[2] The child was originally removed from the Mother’s care in January 2019 due to concerns regarding the Mother’s mental health and issues regarding her addiction to drugs. The child was voluntarily placed in the care of the child’s Maternal Grandfather in or around January 30, 2019 under Agency supervision with access to the Mother.

[3] There was some delay in the Mother’s progress to address the Agency’s concerns regarding her addiction issues and mental health, however, the Mother says that she has been clean and sober for 8 months. She is to be commended for her sobriety and for providing proof of the significant progress she has made including: drug screens that are only positive for cannabis and methadone (she is currently involved in a methadone treatment program); letters of support and disclosures from her doctor, CAMH, Catholic Family Life (counselling), Ontario Addictions Treatment Centre; and proof of her completion of a parenting course.

[4] The Agency acknowledges that the Mother has done a lot of work and made a great deal of progress. As of March 2, 2020, the Agency recently agreed to recommence overnight visits and such access was set to commence March 20, 2020. Unfortunately, as a result of the COVID-19 crisis, the Agency has now stopped all face to face access and opposes any expansion to overnight visits. The Mother opposes the indefinite suspension of overnight access and asks for an order returning the child to her care under terms of supervision. The Agency takes the position that it would be detrimental to the well-being of the child to suddenly return to the care of the Mother even if under terms of a supervision order.

Issues:

[5] The issues are as follows:

i. Has the Agency demonstrated that there are reasonable grounds to believe that, pursuant to s. 94 (2) of the Child, Youth and Family Services Act, (hereinafter referred to as the “CYFSA” and/or the “Act”), there is a real possibility that if the subject child is returned to the mother, it is more probable than not that they will suffer harm and that the child cannot be adequately protected by a supervision Order?

ii. If the child cannot be adequately protected by terms and conditions of a supervision Order, is it in the child’s best interests to make an Order under clause (2) (c) and place the child in the interim care of the Grandfather, subject to supervision?

iii. What terms and conditions regarding access are appropriate in light of the COVID-19 crisis?

[6] I have read and relied upon all the documents filed as well as verbal evidence provide during the teleconference.

Analysis:

Issue #1: Has the Agency demonstrated that there are reasonable grounds to believe that, pursuant to s. 94 (2) of the CYFSA, there is a real possibility that if the subject child is returned to the mother, it is more probable than not that they will suffer harm and that the child cannot be adequately protected by terms of a supervision Order?

[7] Pursuant to the terms of the CYFSA, s. 94 (2) of the Child, Youth and Family Services Act provides:

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate.

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or secure custody.

[8] The test to justify an order for temporary care and custody is that the Agency must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that if the child is returned to her parents, it is more probable than not that she will suffer harm. Further the Agency must establish that the child cannot be adequately protected by terms and conditions of a temporary supervision order to the parents. [1]

[9] The Agency remains committed to work with the Mother towards returning the child to her care. However, they have serious and long standing concerns regarding the Mother. They cannot support immediately returning the child to the Mother when she has recently only had limited supervised access. Although there was some overnight access in late 2019 and early 2020, there were two concerning incidents that caused enough concern that overnight access was suspended. On one visit the police attended at the Mother’s home, and on another, the child was permitted to sleep over at a friend’s house (and then she walked home by herself in the morning).

[10] The court finds that there is insufficient evidence that the Mother has addressed all the concerns of the Agency sufficiently to immediately return the child to the Mother’s care. Due to the young age of the child and the trauma she has already suffered while in the care of her Mother; the Mother’s admitted challenges; and the status quo; the court finds that there continues to be a real possibility that if the child was returned to her Mother’s care under a temporary supervision order, she would be at risk of suffering harm. In addition, due to the COVID-19 crisis, if the child were to return immediately into the Mother’s care, the child cannot be adequately protected by terms and conditions of a supervision Order that neither the Mother nor the Agency can follow.

Issue #2 & 3: If the child cannot be adequately protected by terms and conditions of a supervision Order, is it in the child’s best interests to make an Order under clause (2) (c) and place the child in the interim care of the Grandfather, subject to supervision? What terms and conditions regarding access are appropriate in light of the COVID-19 crisis?

[12] The child is 6 years old and has been residing with her Grandfather and his wife for over one year. According to the Agency, the Maternal Grandfather has provided a stable, loving home with daily structure and routines that support the child’s needs. It is not in her best interests to change her residence until there is a solid plan and supports in place to ensure its success. It is in the best interests of the child to maintain this stability and consistency at this time. Therefore, I find that it is in the best interests of this child to remain in the care of the Maternal Grandfather subject to Agency supervision.

[13] Based on the facts of this case, the Mother’s progress has been so positive that the Agency had already agreed to commence overnight access. Based on the evidence filed, if we were in normal circumstances, the court would have been supportive of this type of access. Unfortunately, due to the COVID-19 crisis, we are in “extraordinary” times.

[14] Due to the COVID-19 emergency, the Agency has advised that the resources to safely transport the child for access are not available. Further, in this case, the Agency’s resources and services are not adequate to monitor an overnight access order and/or the Mother’s compliance with its terms.

[15] In a recent decision of Ribeiro v. Wright [2], Pazaratz J. gave guidance on parenting issues during this extraordinary time (the COVID-19 crisis). In this matter, there is an existing order dated March 2, 2020 that contemplates possible face-to-face access. The access was supposed to be expanded to overnights. However, at the time of this motion, there is no status quo for overnight access visits. They have not occurred since mid-January, 2020. Therefore, although the access was supposed to expand, during this crisis, “our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.” This is not the time to commence new routines and activities that increase community interactions and do not support social distancing. There is an increased risk of community spread of the COVID-19 virus if a child is going back and forth between households.

[16] The court was satisfied with the Mother’s evidence that she is following all government recommendations regarding COVID-19. She advised the court that she has emergency supplies of food and cleaning products. She has been self-isolating, and nobody is sick or showing symptoms in her home. All this showed the court that the Mother has insight and was considering the COVID-19 cautions in a child focused manner.

[17] However, the Mother also indicated that she is taking extra pre-cautions because she has a disabled child in her home who is “vulnerable.” The court is concerned that if the child commences overnight visits there is a risk to both the adults and children in the Mother’s household as well as the Maternal Grandfather’s household.

[18] The court acknowledges that this matter was very difficult to determine. The Mother’s progress is so impressive that under normal circumstances, the court would have no difficulty ordering overnight weekend access. However, the court cannot overlook the fact that it is in the best interests of the children in the Agency’s care that the Agency comply with all COVID-19 considerations and precautions. If a child is going back and forth from different households for access, the children and the foster parents and/or kin care providers are at risk for community spread of COVID-19. This may be less of a risk if there is a status quo in favour of the unsupervised/overnight access, (and the children in both households have already been exposed to each other - and there were no symptomatic or vulnerable persons in the household). Unfortunately, in this case, there is no status quo that includes unsupervised and/or overnight access. Additionally, there are possible vulnerable persons (with respect to COVID-19) in each household, being the Mother’s disabled child and possibly the Maternal Grandfather and his wife due to their age.

i. For all the above reasons, the Mother’s motion is denied. I make the following Temporary Order on a Without Prejudice Basis:

ii. The Maternal Grandfather shall have temporary care and custody of the child L.D born […], 2013 subject to the supervision of the Agency.

iii. The Mother shall have daily access with the child at the discretion of the Agency including:

a. Virtual contact via social media and/or telephone and text (including Skype, WhatsApp, Zoom, and other Facetime messenger or other services that allow for video/audio conferencing);

iv. Due to the ongoing COVID-19 pandemic, face to face visits will re-commence upon same being deemed safe by the Agency. The Agency shall review the access on an ongoing basis and expand access to include overnights if deemed safe in consideration of the Covid-19 pandemic.

[19] This matter to return to court on June 1, 2020 to set a date for a conference or another TCH on a date to be set through the trial coordinator in Barrie.

Jain J. Date: March 30, 2020

Footnotes

[1] Children’s Aid Agency of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. S.C.J.) and R. (S.M.) v. Children’s Aid Agency of Oxford County, [2003] O.J. No. 2568, 41 R.F.L. (5th) 168 (Ont. S.C.J.).

[2] Ribeiro v. Wright, March 24, 2020, Superior Court of Justice, Family Court (Hamilton), File #1199/19