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.
COURT FILE NO.: FC-10-369-7
DATE: 2021/09/08
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. (10), E.S.-R. (6)
BETWEEN:
CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
J.S.-R. and M.M.
Respondents
Hayley Marrison-Shaw, for the Applicant
Kimberley A. Pegg, for the Respondent J.S.-R.
Gonen Snir, for the Respondent M.M.
– and –
H.S.-R.
Added Party Respondent
Cedric Nahum, for the Respondent H.S.-R.
- and -
Deborah Bennett, counsel for the child R.S.-R.
Julie Guindon, counsel for the child E.S.-R.
HEARD: September 1, 2021
REASONS FOR decision
Audet J.
[1] This is a motion brought by the Applicant Children’s Aid Society pursuant to Rule 16(12) of the Family Law Rules, seeking the dismissal of the mother’s Status Review Application (“the mother’s SRA”) on the basis that this court does not have jurisdiction to entertain it. More specifically, I am asked to consider whether a status review application can be brought in relation to a child’s placement when an Extended Society Care Order was made, but questions related to access remain to be decided at trial.
[2] This exceptional situation was created when the Ontario Divisional Court rendered a decision that affirmed the Extended Society Care Order made by the trial judge for two children but sent the question of access back to the Superior Court of Justice for reconsideration. This bifurcation of the issues of placement – which has been dealt with on a final basis – and of access – which is still pending – raises the question as to whether the mother’s SRA can be entertained by the court while the issue of access in the initial Protection Application is still pending.
[3] For the reasons set out below, I find that the mother’s SRA can be entertained by the court at this time, notwithstanding the fact that the issue of access in the initial Protection Application is still pending.
BACKGROUND AND HISTORY OF PROCEEDINGS
[4] Ms. J.S.-R. (“the mother”) is the mother of the two children at the heart of this Protection Application, R.S-R. (who is 10) and E.S.-R. (who is 6) (hereinafter referred to as “R.S.-R.(10)” and “E.S.-R.(6)”).
[5] The Respondent M.M. is the father of E.S.-R.(6). R.S.-R.(10) does not have another known parent.
[6] H.S.-R. is the older daughter of the mother and sibling to R.S.-R.(10) and E.S.-R.(6).
[7] On April 27, 2018, the Children’s Aid Society of Ottawa (“the Society”) filed a Protection Application regarding the children R.S.-R.(10) and E.S.-R.(6). The Protection Application was amended twice. On December 19, 2019, following a summary judgement motion, the children were found to be in need of protection, but the issue of disposition was left to be decided at trial.
[8] On February 18, 2020, following the trial, an order was made placing the children in the Society’s extended care, with access orders between the children and their mother, their maternal grandmother and H.S.-R., all of whom are access holders. The mother appealed that order to the Ontario Divisional Court.
[9] On October 29, 2020, H.S.-R. was added as a party to the appeal on the single issue of the access order made in her favour.
[10] On January 27, 2021, the Divisional Court dismissed the mother’s appeal with respect to the Extended Society Care Order but allowed the appeal with respect to the access order made, returning the matter to the trial judge. The Divisional Court found that 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, grandmother and sibling to the discretion of the Society (see J.S.R. v. Children's Aid Society of Ottawa, 2021 ONSC 630).
[11] The matter has not yet been heard by the trial judge and, therefore, no final decision has been made on the issue of access between the children and the various access holders (“the access trial”).
[12] On March 2, 2021, an order was made appointing the Office of the Children's Lawyer (“the OCL”) to represent the two children at the access trial.
[13] On March 25, 2021, an order was made adding M.M. as a party to these proceedings, as he had been identified as the father of E.S.-R.(6). He was later declared to be the parent of E.S.-R.(6) on consent of all parties. M.M. was not a party to the initial Protection Application, as he had not then been identified as E.S.-R.(6)’s father.
[14] On May 28, 2021, M.M. served and filed an Answer and Plan of Care in the initial Protection Application seeking an order placing E.S.-R.(6) in his care. None of the other parties served a Reply to M.M.’s Answer, indicating that he was re-opening the issue of E.S.-R.(6)’s placement, and neither party filed a motion seeking to strike his Answer. The question as to whether M.M. is able, at this stage of the proceeding, to file an Answer and Plan of Care in the context of the initial Protection Application in which he seeks to alter the children’s placement (status), or whether M.M. or the Society is required to serve and file their own SRA, is still a live issue.
[15] On June 16, 2021, H.S.-R. was added as a party to this matter for the purpose of the upcoming access trial.
[16] On July 21, 2021, the mother filed a Status Review Application seeking a review of the children’s status and an order placing the children in the care and custody of individuals she identified as P.C. and M.C. (“the kin”), with access to her. The kin are not known to the children, to the best of my knowledge. However, this plan would keep the two children together in the same home.
[17] When the children were brought to a place of safety in April 2018 (they were 3 and 7 at the time), they were placed in a foster home where they remained throughout, and until very recently. At some point in the summer of 2021, they were placed in a different and temporary foster home, following which E.S.-R.(6) was placed with her biological father and R.S.-R.(10) with her maternal grandmother.
[18] It is not disputed that neither M.M. or the maternal grandmother participated in the initial Protection Application, and neither presented a plan of care in that context. It is also not disputed that the Society’s current long-term intention with regards to these children is to place E.S.-R.(6) with M.M. and R.S.-R.(10) with her maternal grandmother pursuant to adoptions. It is the Society’s position that given the circumstances of this case, it is in the children’s best interest for adoption orders to be made as opposed to custody orders under s. 104 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the CYFSA”). Adoption orders can be sought and obtained by the Society based on the Extended Society Care Order granted to it, without the need to seek a change of the children’s status by way of a status review application under s. 115 of the Act. Proceeding by way of custody orders under s. 102 would require that the Society file a status review application, thus re-opening the issue of the children’s placement to all parties, including the mother.
PRELIMINARY ISSUE
[19] The Society takes the position that the mother’s SRA cannot be entertained by the court since it was filed before the expiration of six months since the Divisional Court’s decision was released, which is not permitted by s. 115(7) of the CYFSA.
[20] The mother’s SRA was, indeed, served six (6) days before the expiration of the six months hiatus imposed by s. 115(7). In my view, this argument – while correct – is in practice a moot point since the mother could, today, re-serve and re-file her SRA and she would be in compliance with s. 115(7).
[21] To the extent that it is necessary, and in keeping with the objective of the Family Law Rules which is to deal with cases justly, and the paramount purpose of the CYFSA which is to promote the best interests, protection and well-being of children, I declare that the mother’s SRA is deemed to have been served and filed on July 27, 2021.
POSITIONS OF THE PARTIES ON THE MAIN ISSUE BEFORE THE COURT
[22] As stated above, the Society seeks the dismissal of the mother’s SRA on the basis that the court does not have jurisdiction to conduct a review of the children’s status when the initial Protection Application is still pending. In this case, argues the Society, the status of the children is not yet final for lack of a final disposition on the initial Protection Application, namely, on the issue of access. The Society argues that a final decision in the best interests of the children will only occur when all the issues raised in the initial Protection Application have been decided, including the outstanding issue of access which is returning before the trial judge, as ordered by the Divisional Court.
[23] Given that the initial Protection Application is set to return to trial on the issue of access, the mother’s SRA constitutes an additional application between the same parties about the same matter concerning the best interests of the children. The Society is of the view that the mother’s SRA results in a multiplicity of cases involving the same parties and the same issues and, as such, it should be dismissed until six months after the initial Protection Application has been finally dealt with.
[24] M.M. supports the Society’s position and also seeks the dismissal of the mother’s SRA.
POSITION OF THE MOTHER AND OF THE OCL
[25] The OCL, on behalf of all three siblings, being H.S.-R., R.S.-R.(10) and E.S.-R.(6), supports the mother’s position in this motion (hereinafter, all of these parties will be referred as “the responding parties”).
[26] The responding parties take the position that the court has jurisdiction to entertain the mother’s SRA at this time based on the language of s. 115 of the CYFSA itself. They argue that on the issue of the children’s placement (i.e. “their status”), there is a final decision by the Divisional Court as of January 27, 2021, and there is no live case on this matter that would preclude the mother's ability to bring a status review within the legislative timeframe.
[27] The responding parties argue that status review applications for children in extended society care are dealt with pursuant to s. 115(7) of the CYSFA, which restricts a parent from applying for a review of that status within six months of finalization of the order, whether on first instance or on appeal. They point to the fact that access provisions within the CYFSA are treated separately from the placement questions. Both have a mechanism for review, but each one is considered independently in the statute. They submit that this allows for consideration of the mother's SRA despite the live question regarding access in the initial Protection Application.
[28] In the alternative, the responding parties submit that the court can and should, using its parens patrie jurisdiction, entertain the mother’s SRA at this time if it deems it to be in the children’s best interests. They argue that in the very special circumstances of this case, it is.
ANALYSIS
[29] At the heart of this issue of law is section 115 of the CYFSA, the relevant provisions of which read as follows:
Status review for children in, or formerly in, extended society care
115 (1) This section applies where a child is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), or is subject to an order for society supervision made under clause 116 (1) (a) or for custody made under clause 116 (1) (b).
Society to seek status review
(2) The society that has or had care, custody or supervision of the child,
(a) may apply to the court at any time, subject to subsection (9), for a review of the child’s status;
(b) shall apply to the court for a review of the child’s status before the order expires if the order is for society supervision, unless the expiry is by reason of section 123; and
(c) shall apply to the court for a review of the child’s status within five days after removing the child, if the society has removed the child,
(i) from the care of a person with whom the child was placed under an order for society supervision described in clause 116 (1) (a), or
(ii) from the custody of a person who had custody of the child under a custody order described in clause 116 (1) (b).
Others may seek status review
(4) An application for review of a child’s status under this section may be made on notice to the society by,
(a) the child, if the child is at least 12;
(b) a parent of the child;
(c) the person with whom the child was placed under an order for society supervision described in clause 116 (1) (a);
(d) the person to whom custody of the child was granted, if the child is subject to an order for custody described in clause 116 (1) (b);
(e) a foster parent, if the child has lived continuously with the foster parent for at least two years immediately before the application; or
(f) in the case of a First Nations, Inuk or Métis child, a person described in clause (a), (b), (c), (d) or (e) or a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.
Six-month period
(7) No application shall be made under subsection (4) within six months after the latest of,
(a) the day the order was made under subsection 101 (1) or 116 (1), whichever is applicable;
(b) the day the last application by a person under subsection (4) was disposed of; or
(c) the day any appeal from an order referred to in clause (a) or a disposition referred to in clause (b) was finally disposed of or abandoned.
Exception
(8) Subsection (7) does not apply if,
(a) the child is the subject of,
(i) an order for society supervision made under clause 116 (1) (a),
(ii) an order for custody made under clause 116 (1) (b), or
(iii) an order for extended society care made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) and an order for access under section 104; and
(b) the court is satisfied that a major element of the plan for the child’s care that the court applied in its decision is not being carried out.
No review if child placed for adoption
(9) No person or society shall make an application under this section 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) who has been placed in a person’s home by the society or by a Director for the purposes of adoption under Part VIII (Adoption and Adoption Licensing), if the child still resides in the person’s home.
Interim care and custody
(10) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.
[30] As stated earlier, the Society takes the position that there is another case going on between the same parties about the same matter. From its perspective, the re-trial of access and re-opening of the placement issue on status review are about the same matter. I disagree. In my view, on the issue of the children’s placement, there is a final decision by the Divisional Court as of January 27, 2021 and there is no live case on this matter that would preclude the mother from applying to review the children’s status at this time.
[31] Applications under s. 115 of the CYFSA concern the status review of children who were placed in the Society’s extended care pursuant to subsection 101(1) or 116(1) of the Act. Subsection 115(7) restricts a parent from applying for a status review within six months after the day the extended society care order was made pursuant to subsection 101(1) or 116(1)(a). The considerations on a status review application and the kind of orders that the court can make are outlined in s. 116(1) of the Act, and they are substantially the same as those found in s. 101(1). Namely, the court may;
(a) make a supervision order in favour of a parent or another person;
(b) grant custody of the child to one or more persons;
(c) order that the child be placed in the society’s care (on an interim or extended basis pursuant to s. 101(1) and on an extended basis only pursuant to s. 116(1)), or;
(d) terminate or vary any order previously made under section 101 or 116.
[32] Access provisions within the CYFSA are treated separately from the placement (disposition) questions, namely, in sections 104 to 108 of the Act. Both have a mechanism for review, but each one is considered independently in the statute. There is a specific provision in the Act dealing with the issue of access for children in extended society care, section 105, and specific considerations apply for those children. The CYFSA does consider the separation of the finding and disposition stages of child protection proceedings, from proceedings in relation to access, although in practice this is a rare occurrence. Nonetheless, bringing an access application for a child in extended society care will not trigger or require a review of the child’s status (i.e. his or her placement).
[33] Status and access are distinct concepts. The decision of the Divisional Court in this case which requires the trial judge to reconsider the terms of access addresses a different issue than the status review which has been brought by the mother. I agree with the mother’s submission that status is broader than access. Status includes a review of the disposition of “extended society care.” Access is a narrower concept, which addresses only the contact between the children and their mother, sister and grandmother.
[34] In speaking to the distinction between access and status, the Court in Children’s Aid Society of Algoma v. A.B. (2012 ONCJ 351, paras. 12-14) explained:
[12] Status in the context of a "status review" means the status of the child that was established by the final order made in the immediately prior proceeding involving the child…
[13] There is no statutory definition for the word "status". The existing status of a child under one of these prior child protection orders is a combination of the provisions for placement, and the provisions that apply to such placement. In the case of a supervision order, for example, a review of the "status" of the child could result in the continuation of, or a change to, either or both of the child's placement or the supervision order terms and conditions that apply to that placement.
[14] Status review does not extend to the review of any access order relating to the child that may have been made contemporaneously with the order that established the child's status (or made subsequently). Access is not status. Section 64 CFSA does not require a society to bring an application for a review of any person's access to a child. In some cases, changes to access orders may be desirable, particularly if there is to be a change in the child's status.”
[35] This issue was also previously canvassed by Blishen J. in A. (H.) v. Children’s Aid Society of Ottawa-Carleton, 2001 CanLII 37746 (ON SC), 2001 CarswellOnt 4168, 2001, O.J. No. 4584. In that case, the mother had filed a motion under s. 58 of the now repealed Child and Family Services Act, R.S.O. 1990, c. C. 11 (now s. 104 of the CYFSA) seeking an order for defined and increased access to her son who had previously been made a Crown ward under s. 57(1) of the CFSA (now an extended society care order pursuant to section 101(1) of the CYFSA). The Society argued that the mother was required to bring the issue of access before the court by way of a status review application under former s. 64(4) of the CFSA (now 115 of the CYFSA) which would have required leave of the court. In the context of a motion heard by Mackinnon J., she had ruled that the matter was properly before the court as an application for access under s. 58 of the CFSA (now s. 104 of the CYFSA). Before Blishen J., the Society was seeking leave to appeal Mackinnon J.’s decision.
[36] In her endorsement allowing the mother to bring her motion for access pursuant to s. 58 of the CFSA (s. 104 of the CYFSA), as opposed to a status review application, Mackinnon J. concluded:
In my view, this case is an application under s. 58 [now s. 104 of the CYFSA] for access, and not under s. 64 or 65 [now ss. 115 and 116 of the CYFSA] for a status review. Neither parent has called into question the child’s status as a crown ward. The power to deal with terms of access in the context of a status review application does not mean that access can only be determined by that vehicle. Section 58 provides a “stand alone” route to place access before the court, when indeed, that is the only issue.
[37] While considering whether leave to appeal Mackinnon J.’s ruling should be granted, Blishen J. had the following comments to make;
Section 65 [now s. 116 of the CYFSA] contemplates where a child’s status is being reviewed under s. 64 [now 115 of the CYFSA], (my emphasis), a term of access may be varied or terminated. Thus, the issue of access is dealt with in the general context of a review of the child’s status or legal condition. What follows from Justice Mackinnon’s ruling is that a child’s status is as a Crown ward, Society ward or as the subject of an order of Society supervision. T.F.’s status as a Crown ward does not include terms of access. Therefore, as the parents are not seeking a review of the child’s status but only a change in the terms of access, s. 58 is the appropriate route.
[38] Nonetheless, because at least one other decision suggested that a status review application was the correct route in such a case, and in light of the obiter comment made by the court in another decision, Blishen J. granted leave to the Society to appeal Mackinnon J.’s decision as she felt that the issue involved a matter of considerable importance for the development of consistency in dealing with these applications.
[39] In a decision released on February 26, 2003, the Divisional Court upheld Mackinnon J.’s decision (see H.A. v. Children’s Aid Society of Ottawa, 2003 CanLII 71149). The Court was of the view that section 58 of the CFSA [now s. 104 of the CYFSA] provided a “stand alone” route with respect to access when that was the only issue. According to the appellate court, it was implicit in subsection 59(2) [now 105(4) of the CYFSA] with reference to both sections 58 [now s. 104 of the CYFSA] and 65 [now s. 114 of the CYFSA] that one could apply for access without having to go through status review. As a result, it was not necessary when attempting to vary the access for a Crown ward (now a child in extended society care) to review the status of the child.
[40] It is important to note that, although some of the terminology has changed, the legislative scheme found in former sections 58, 64, 65 and 65.1 of the CFSA is, for all intents and purposes, the same as the one currently found in sections 104, 113, 114, 115 and 116 of the CYFSA. The above decisions, therefore, are still good law. In my view, these cases support the conclusion that while the ancillary issue of access may also be addressed at a review of a child’s status, the reverse is not true. Status and access are therefore distinct concepts and access-only proceedings do not bar a status review.
[41] The case at hand is one of those rare occurrences where the children’s status (extended society care) can be reviewed despite the fact that the issue of access is still pending in the initial Protection Application. The two children at the heart of this child protection proceeding have been in care for three years. There have been material changes in the Society’s plan for these children, as a result of E.S.-R.(6)’s biological father having been identified and presenting a plan for her, and the children’s maternal grandmother presenting a plan for R.S.-R.(10). These significant changes took place subsequent to the Divisional Court’s decision on the mother’s appeal.
[42] I agree with the responding parties that if the Court does not hear the mother’s SRA and the Society proceeds with adoption placements of the two children with biological family, there will be a question outstanding as to whether, due to the procedural complexities of this case, the Court was barred from considering the merits of the Society's plan for these two children, which now involves the separation of the two siblings. If the Society does not proceed with adoption placements, then the mother will have to wait until the access trial has been completed and a further six months has elapsed before bringing her SRA. This means that the children's lives will continue to be in limbo well beyond the statutory timelines imposed by the CYFSA. This would not be in their best interest.
CONCLUSION
[43] In light of the above, I declare that the court has jurisdiction to entertain the mother’s Status Review Application at this time. It is of the utmost importance that the mother’s Status Review Application be dealt with promptly and expeditiously, given the significant delays already incurred and the need for these children to be provided with permanency and stability, as mandated by the Act.
[44] In accordance with the statutory objectives of the Family Law Rules which require that the Court deals with cases justly, I make the following additional orders:
The mother’s Status Review Application (in Court File No. FC-10-369-7) shall be joined with the pending issue of access in the initial Protection Application (Court File No. FC-369-6).
The re-trial of access and the trial of the mother’s Status Review Application shall be heard at the same time, on an expedited basis, before the same judge.
These two matters including the forthcoming trial shall be case managed by Blishen J. Given her limited availability, counsel shall take immediate steps to secure a first conference before her, at her earliest availability, through Trial Coordination.
This matter is adjourned to October 28, 2021 at 2 p.m., for a temporary care and custody motion (half day).
Madam Justice Julie Audet
Released: September 8, 2021
COURT FILE NO.: FC-10-369-7
DATE: 2021/09/08
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. (10), E.S.-R. (6)
BETWEEN:
CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
J.S.-R. and M.M.
Respondents
– and –
H.S.-R.
Added Party Respondent
REASONS for decision
Audet J.
Released: September 8, 2021