Court File and Parties

NEWMARKET COURT FILE NO.: FC-22-381-00 DATE: 20220311 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Children and Family Services for York Region, Applicant – AND – MP (Not Present), Respondent – AND – AP (Not Present) – AND – NA (Not Present), Respondent

COUNSEL:

J. Kiang, Counsel for the Applicant MP – Self-represented AP – Self-represented NA – Self-represented

HEARD: March 3, 2022

Reasons for Decision

Considerations in Respect of a Protection Application for a Child with Complex Needs

a. Himel J.

Introduction

[1] The Children and Family Services for York Region (“the Society”) commenced a Protection Application on the basis that AP (“the Child”), age 16.5, is a child in need of protection pursuant to Section 74(2)(k) of the Child, Youth and Family Services Act [1] (“the Act”).

[2] The Society seeks an order that the Child be placed in the Society’s extended care subject to access orders between the Child, MP (the paternal grandfather and custodian [2]), IS (the paternal grandmother), JP (the paternal aunt), AP (the father – with access restricted to supervised virtual access). I refer to the aunt and the grandparents collectively as the family.

[3] The Society seeks an order for no access to NA (the mother – the Child has had no contact with her since age 2).

[4] The Society relies on the affidavit evidence of MK (the Child Protection Worker (“the Worker”)), which I find to be credible and trustworthy in the circumstances. It identifies concerns about the grandparents’ ability to keep the Child and themselves safe.

[5] On February 27, 2022, the Society brought the Child to a place of safety. The Worker met with the out-of-care foster parent at a mutually agreeable location in the community. The Worker placed the Child at the same foster home. Counsel advised that this was a technical apprehension.

[6] This came before the Court on March 3, 2022, by way of a motion for temporary care and custody of the Child on a without prejudice basis. None of the responding parties attended the Zoom Court on that day although the grandparents, the aunt and the father were aware of the proceeding. The Society advised that no party objects to the relief sought.

[7] The facts as I find them below are derived from the various collaborative meetings that the Society engaged in with the family and community services organizations.

[8] On March 3, 2022, I made the temporary orders requested by the Society, and I indicated that a further endorsement would follow.

[9] The Worker’s affidavit, as well as the oral submissions made by counsel, anticipate that this matter will likely proceed on a default basis and resolve quickly. The family have articulated their concerns that they cannot meet the Child’s needs or keep him safe since the grandparents’ first contact with the Society in October 2020. More recently, the family has made the following statements:

(a) on September 23, 2021, the grandfather advised the Society that he could not “supervise” the Child properly and he asked that the “government” be the Child’s guardian. He acknowledged that he was suffering from dementia and that the aunt was unable to take on the responsibility of caregiver;

(b) on February 27, 2022, upon learning of the Society’s decision to bring the Child to a place of safety, the aunt responded that she was very happy and relieved about this decision, and this would be the best decision for the Child on a long term basis; and

(c) on February 28, 2022, the aunt (who relays information between the Society and the family) texted the Society to advise that the grandfather was very thankful that the Society brought the Child to a place of safety. [3]

[10] Notwithstanding the change made by the March 3, 2022 order, being that the Child is now in the temporary care and custody of the Society, [4] nothing has changed in the Child’s residence. He has been residing with a foster family since being placed there in a community based out-of-care placement on June 24, 2021.

[11] While it was initially anticipated that this would be a temporary move, and the Society took steps to return the Child to the grandparents, they have been unable to manage more than access.

[12] The Society’s materials highlight the various steps taken to avoid bringing the Child into their care. They rely on the “Ministry Directive for Children with Special Needs dated January 8, 2001” (the “Directive”), which states that community services providers need to be the main source of support for these families. The Society acknowledges that there are financial implications when the Society brings a child with complex needs into their care, given the significant supports that are required.

[13] When the Society attended at Court, I voiced the concerns about Society’s decision to delay the commencement of the Protection Application (from perhaps February 2021) and the impact on the Child and family. The Reasons for Decision (the “Reasons”) describe my concerns.

[14] I requested the Society to provide me with the Directive that they refer to in their materials. The Directive, a protocol and a flow chart were provided on March 4, 2022. I refer to these documents in the Reasons.

[15] This is the second case brought to this Court where a family has been unable to manage a high needs and aggressive child, and the Society has delayed commencing a Protection Application until the point of crisis. The Reasons are intended to provide the Society with judicial guidance on this issue.

Background

[16] The Child was born in Iran and brought to Canada by the grandparents in 2019. He is a Permanent Resident of Canada. The Child has a recent diagnosis of Autism Spectrum Disorder (Moderate to Severe) and an Intellectual Disability (Moderate to Severe [5]). The Autism Diagnostic Observation Schedule Assessment (ADOS Assessment) and the psycho-educational assessment conclude as follows. The Child’s IQ level falls into the extremely low range (0.2%) and places his performance at the equivalent of age 4 years, 11 months. The Child functions well below his age level (4 to 5 year old level) cognitively, adaptively and academically.

[17] The family believes that the Child was severely mistreated in Iran by his stepmother (including beatings with metal skewers, locking him in the bathroom and forcing him to take unknown medications).

[18] The Society was briefly involved in October 2020 (due to stealing, being left unsupervised, use of physical restraints by the grandparents and physical aggression by the Child). At that time the grandparents disclosed that he was physically aggressive towards them, would frequently leave the home and had an unsafe obsession with tools. The grandparents spoke about their limitations in being able to keep the Child safe due to their age.

[19] The Society closed the file as the Child was attending school full-time and the family was connected with the York Support Services Network (“YSSN”) and the Children’s Treatment Network (“CTN”).

[20] The Society became actively involved in February 2021 following a report by the school that the Child engaged in a physical altercation with the grandmother causing bruising (to her). The Society learned that York Regional Police were contacted as the Child pushed the grandfather into the wall after the grandfather attempted to take away a power drill.

[21] The Child was aggressive and fascinated with power tools. From March 25, 2021 to June 2021, when he moved to the out-of-care foster home, the following incidents took place: (a) he stole a neighbour’s chainsaw. When police arrived, he fled on his bike, was hit by a car, broke two femurs and required surgery; (b) while residing at Bloorview Holland Children’s Rehabilitation Center (“Bloorview Holland”) he required 2:1 support, tried to run over staff with his wheelchair, he acted out physically and was impulsive.

[22] On March 29, 2021 a Case Conference was held with the Society and several community partners including York Regional Police, York Region District School Board, YSSN and CTN. They discussed concerns about the grandparents’ ability to keep the Child safe and developed a plan with supports.

[23] The Child was an in-patient at Holland Bloorview from April 14 to June 10, 2021.

[24] On May 5, 2021, the grandparents articulated their own concerns about the Child returning home and their inability to meet his needs due to their ages and health issues. They were willing to try with ongoing in-home respite support.

[25] On May 11, 2021, the aunt explained that she had been the child’s primary caregiver from October 2019 to September 2020, when the family resided altogether. The aunt had since temporarily relocated to Africa (with her husband and young daughter).

[26] On May 20, 2021, the grandmother and the aunt raised concerns about the grandparents’ ability to manage the Child when he returned home (and they advised that that grandmother was waiting for shoulder surgery). Both agreed to an out-of-home placement until the beginning of the school year.

[27] On June 3, 2021, the Society, YSSN, Kinark/CTN and Holland Bloorview concluded that a residential placement would be most appropriate to keep the Child safe and to meet his needs. The Society maintained its position that due to the Directive the Child should not be brought into care. The Society agreed to cost-share an out-of-care placement until a community residential placement became available (which would take several months and require approval).

[28] As there were no appropriate community based placements available, the Child was discharged from Holland Bloorview on June 10, 2021. He returned to the grandparents’ home with 2:1 support, for 12 hours per day and a safety plan. During oral submissions on the motion, the Society submitted that they had no options at that time. This is not correct as the Society could have commenced a Protection Application seeking to bring the Child into their care.

[29] On June 16, 2021 (merely six days after his release from hospital), the York Regional Police were called. The Child had attempted to attack the grandfather with a power tool and was taken to the hospital where he was held on a Form 1 pursuant to the Mental Health Act.

[30] On June 24, 2021, the Child was placed voluntarily in the foster home (an outside paid resource) where he remains today. As the grandparents agreed to this plan, the grandfather remained his legal guardian. However, since the placement was community based and not through a Voluntary Agreement (“VA”) with the Society, the grandfather was not afforded the opportunity to have Independent Legal Advice (as contemplated by section 21 of the Act when a Child is being placed in accordance with a VA).

[31] There is no reference in the Worker’s affidavit to any steps taken by the Society to make the Child aware of and understand, as far as possible, the reasons for the placement. There is no evidence that the Society took the child’s views and preferences into account or gave them due weight in accordance with his age and maturity, to the extent he has the capacity to provide same (s. 22(6)).

[32] The Society continued to plan for the Child’s return to the grandparents’ home by September 2021. However, while the aunt and her family had returned to the grandparents’ home by then, she advised that the family would not be able to have the Child move back into their home due to some personal issues. The family disclosed an incident when the grandfather was disorientated and got lost in the community with the Child, which was traumatic for both of them. The grandfather shared that he had memory issues and a diagnosis of dementia.

[33] On September 7, 2022, the aunt advised the Society that the grandfather felt a lot of pressure being responsible for the many tasks related to supporting the Child’s needs, and that she could not assume guardianship of the Child.

[34] During this period YSSN and Kinark/CTN also raised concerns about the grandfather’s ability to be the legal guardian, to provide informed consent for services and to manage the finances and organizational tasks. They articulated that the grandfather was not an appropriate guardian to continue with this role due his cognitive state. The Child would not be approved for ongoing services without a competent and engaged guardian who could spearhead the services.

[35] While the Child’s costs were initially shared by various organizations, the Society became solely liable for these expenses in late September 2021. The Society was advised that the community funding pools would not be replenished until the end of their fiscal year.

[36] On September 23, 2021, the family advised the Society that they could not continue to be the Child’s guardian or primary caregiver. The family did not present any family or friends who could assume the responsibility of guardianship.

[37] The Society continued to consider options to avoid bringing the Child including: (a) appointing a Public Trustee, which was not feasible as the Child was not yet 18 years old; (b) Engaging the Transitional Youth Coordinator (“TAY”) through YSSN to help the Child to transition to Developmental Services Ontario when he reached age 18. However, this service is only available to children in care; and, (c) A Temporary Care Agreement with the Society, however this does not gain access to the TAY process. If the Society opted for this plan, the Child would not be put on a waitlist for residential services until he turned 18.

[38] The Society continued to explore whether the grandfather could remain the Child’s guardian. On November 25, 2021, the grandfather’s doctor advised that he did not feel that the grandfather was capable of maintaining responsibility for the Child and making decisions for him. The Society inquired about another relative in Iran who may be suitable, however, the aunt disclosed that this relative had not protected the Child from the abuse.

[39] On January 18, 2022, the aunt advised the Society that the grandparents returned to Iran until at least June 2022. The grandfather’s doctor recommended a change of environment as the grandfather was depressed, refused to leave his bed and was not taking care of himself.

[40] The Society delayed commencing a Protection Application until March 3, 2022 (although the decision was made on February 15, 2022). The Society could have commenced a Protection Application (for a supervision order or to bring the Child to a place of safety) as early as February 2021, June 2021 or September 2021.

[41] These Reasons address several important issues in cases where:

(a) the absence of a Protection Application may have significant implications for the Child and the family; and

(b) the Ministry Directive appears to be in contradiction with the Act.

[42] I recognize that the comments below are, to some extent, speculation. However, they are intended to provide the Society with factors to consider when they decide whether or not to commence a Protection Application, and when they engage in planning for a child with complex needs.

The Implications of the Decision Not to Commence a Protection Application (Until March 2022)

[43] In respect of long term planning for the child, the decision to delay bringing the Child into care, has also delayed access to the TAY. Consequently, the Society has lost valuable time to make a long term plan for an extraordinarily high needs youth who is currently 16.5 years of age.

[44] If a Protection Application had been brought at an earlier stage, the Child would have had legal representation before the family reached the point of crisis. A lawyer appointed by the Office of the Children’s Lawyer (“OCL”) may have the effect of being a check and balance in a complicated and multi-organization case. Moreover, to the extent that it is possible to ascertain the Child’s views and preferences, the Society would have had the benefit of same during the various planning stages.

[45] If the matter had been brought before the Court during the challenging period of February 2021 onwards, the grandparents (who have limited English speaking skills) may have had legal representation (perhaps through Legal Aid Ontario). Legal representation would have provided the family with a better understanding of the rights and responsibilities (attributable to the Society and to them). It appears that some/most/all of the Society’s interactions with the grandparents has been through the aunt (who acts as the messenger and translator). Official translators are available when matters are before the Court. [6]

[46] From the grandparents’ perspective, it may have been a less disruptive measure to be engaged in a Protection Application than to work with the Society informally, as the case would have had the benefit of judicial oversight.

[47] Judicial oversight may have prevented the need for the grandparents to return to Iran to address the grandfather’s mental health. As a consequence of this decision there will be no in-person access until they return (no earlier than June 2022). The family has experienced a crisis.

[48] Until now, the Society has not had the opportunity to be provided a judicial opinion on the issue of balancing the requirements set out in the Act, against the Directive. [7]

Where the Ministry Directive Contradicts the Act

[49] The paramount purpose of the Act is to promote the best interests, protection and well-being of children. (s. 1(1)).

[50] The Society is required to carry out its role in the best interests of the Child in accordance with various defined considerations (section 74(3)). The Act also requires that the Society use the least disruptive measures to protect a Child (s. 1 (2), s. 94(2), s.101)).

[51] Pursuant to section 35(1) of the Act, the Society’s functions include: (a) investigation allegations or evidence that children may be in need of protection; (b) protect children when necessary; (c) provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children; (d) provide care for children assigned or committed to its care under the Act; and, (g) perform any other duties given to it by this Act or the regulations in any other Act.

[52] The Child may have met the definition of a “child in need of protection”, as early as February 2021. While this Protection Application is brought to the Court pursuant to section 74(2)(k) of the Act, it is arguable that a finding could be made on the basis of emotional or physical harm, or risk of emotional or physical harm, given the Child’s aggressive behaviour and lack of impulse control.

[53] The Child has been in limbo from June 2021, as various organizations and the grandfather struggled to make decisions and the costs arising from his care. For the reasons set out earlier, I am concerned that he has been disadvantaged by this state of limbo which is caused (at least in part) from Society’s decision to not commence a Protection Application.

[54] The Society provided me with a copy of the Directive that they relied upon, and which is (excerpted) below:

In 1998 the government initiated the Child Welfare Reform Agenda to increase the safety and protection of children in Ontario.

As you are aware, one key component of the reform was the implementation of a new Funding Framework which clearly focused the resources of the Children’s Aid Societies on the protection of children.

As part of the implementation process, Children’s Aid Societies were told that special needs of children and families (where no child protection concerns exist) (emphasis added) should be met by other more appropriate community service providers….

If other more appropriate community service providers are not able to provide the necessary services, they are expected to take responsibility for referring the matter to local case resolution mechanisms.

This approach is consistent with the principles of the Child and Family Services Act which have guided the Ministry’s service philosophy for children with special needs, including:

• supporting the autonomy and integrity of the family unit, whenever possible;
• providing services and supports on the basis of mutual consent, whenever possible;
• providing the least disruptive course of action that is appropriate; and
• respecting continuity of care and the need for stable family relationships.

The Ministry is aware of concerns recently brought to light by families of special needs children. These cases highlight the need for enhanced clarity with respect to the role of Children’s Aid Societies with children who have special needs and where there are no child protection concerns (emphasis added).

The Ministry has undertaken to review the provisions of the Child and Family Services Act that govern Special Needs Agreements.

DIRECTIVE

Children’s Aid Societies have an exclusive role under the Child and Family Services Act to protect children. In keeping with that legislative mandate, and as previously communicated, Children’s Aid Societies will not initiate new Special Needs Agreements.

It is not appropriate to use child protection resources to provide services to special needs children where no child protection concerns exist. Special needs of children and families that are not related to child protection are best met by other community service providers (e.g. developmental services, children’s mental health).

When a parent approaches a Children’s Aid Society and no protection concerns exist, the family must be referred to more appropriate community service providers with a mandate to provide services to special needs children. Parents will not be forced to relinquish custody through the child protection system in order to access special needs support.

[55] I note that the Directive was made under the CFSA, which was repealed and replaced with the Act. There is no reference to “Special Needs Agreements” in the Act. Does the Directive continue to be in force if it relates to legislation that has been repealed?

[56] The Directive intends to avoid the necessity of placing a child into the Society’s care solely because of the child’s complex needs, and states that, “this government will never force any parent to relinquish custody of a child in order to access special needs supports.”

[57] However, these are not the facts of this case. As set out repeatedly in the Worker’s affidavit, the grandfather does not express being forced to relinquish custody. To the contrary, the family has repeatedly advised the Society that they cannot continue to be the Child’s legal guardian. Approximately six months ago the grandfather asked that the “government” be the Child’s guardian.

[58] Moreover, the Directive repeatedly refers to applying to cases where no child protection concerns exist.

[59] In this instance, the Directive may contradict the Child’s best interests and the family’s needs. It does not apply as the Child appears to meet the test of a child in need of protection (and may have met that test as early as February 2021). In my view, the Society’s obligations in accordance with the Act should have taken precedence over the Directive.

[60] The Act is the law. The Directive is not.

[61] The Society also provided me with a copy of the “Whatever It Takes Protocol – Support to Complex Children, Youth and Families in Crisis/Urgent Need – York Services Region – November 5, 2020.” The protocol, which is signed by a wide-variety of community service organizations, sets out a process to help high needs children and their families. I note that: “planning is client/family centred; child and family voice is fundamental to a successful plan.”

[62] In this instance, it seems that the family’s voice was not heard, and the Child had no voice. This could have been addressed through the appointment of the OCL in a Protection Application, through an ADR process, or if the parties entered into a VA [8] (s.77(7) and 78). To the extent that the Society relied on this protocol as a reason to decline bringing a Protection Application, I believe that they may have erred in doing so.

[63] Finally, the Society provided a chart entitled “Children’s Case Coordination (CCC) and Complex Special Needs (CSN) Eligibility Process – York Region (December 2020).” This is a comprehensive flow chart that sets out how a child’s needs are assessed and addressed through various organizations working collaboratively. However, the approach makes reference to there being “no child protection concerns” and that there is a “parent involved and making decisions.” There is also a requirement that a “parent commits to level of parental involvement required.” As stated earlier, the community organizations raised concerns about the grandparents’ inability to fulfill the required roles, which the family acknowledged to be true.

Conclusion

[64] The Society plays a critical role to protect our community’s most vulnerable children and to support families. While there may be financial and other considerations at play, and the Court is required to consider the least disruptive course of action, in some cases the best viable option is to bring a child into the Society’s care.

[65] The grandparents and the aunt’s family will continue to play a significant role in the Child’s life as they are committed to his best interests. The crisis that led to the Protection Application (being the grandfather’s depression and the decision to return to Iran) will hopefully resolve, so that the Child can benefit from in-person access if/when they return to Canada.

[66] The foster home placement is stable, the Child is doing relatively well and there are no plans to make a change. The foster parents implement structure and communicate clear and consistent expectations. The Child’s behaviours have subsided significantly. The foster parents are committed to seeing the Child through to the transition to adulthood as long as they can manage.

[67] The Child has not engaged with the Youth Criminal Justice System. With sufficient supports in place hopefully he will not do so. However, he will likely continue to be a risk to himself and to others such that safety planning will be a critical role for the Society.

[68] In certain instances, there are benefits derived from commencing a Protection Application. The legal process provides judicial oversight, legal representation for parents/caregivers and OCL representation for children. All of the above act as checks and balances, particularly where a child has complex special needs and the parents/caregivers have limited understanding of the legal and community service systems (including rights and responsibilities) as well as limited English-speaking skills.

Justice A. Himel Date: March 11, 2022

Footnotes

[1] 2017, S.O. c. 14. [2] The grandfather was granted custodianship by the Tehran Family Court on July 20, 2019. [3] Given the evidence about the grandfather’s dementia and depression I query whether he may be a special party. It is unclear if the Society has considered same. This will need to be addressed. [4] The Child has not previously been in the Society’s care pursuant to any order or voluntary care agreement. [5] Completed by Holland Bloorview Rehabilitation Hospital in spring 2021. [6] See Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489 on the importance of section 21 and judicial oversight. [7] See also DCAS v. G.S., 2022 ONSC 805 on the importance of bringing cases to Court for judicial oversight. [8] In this case the recent assessments may have impacted the appointment of the OCL if there had been a temporary care agreement, as the assessments may conclude that he does not have capacity to participate in an agreement because of a developmental disability.