COURT FILE NO.: FC19/13-01 DATE: July 25, 2023

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Family & Children’s Services of St. Thomas and Elgin Dana Haklander, for the Applicant Applicant

• and -

M.M. and J.-P.N. No one appearing for the Respondents Respondents

Mark Maurer for the child, J. N.

HEARD: May 17, 2023

Pursuant to s. 87(8) of the Child Youth and Family Services Act 2017, 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.

SAH J.

REASONS FOR JUDGMENT

Introduction and Overview

[1] After several adjournments, a focused hearing was held in relation to this status review application.

[2] On June 28, 2022, Tranquilli J. released her decision on a summary judgment motion. She ordered that the child, J.N., born 2013, (the “child”), be placed in extended society care with Family & Children’s Services of St. Thomas and Elgin, (the “Society”), after making a finding of continued risk. The respondent mother’s parenting time was also finalized in the said order.

[3] The respondent father, who opposed the summary judgment motion, requested that the child be placed in his care, or in the care of extended paternal family, to support his cultural and racial heritage.

[4] Tranquilli J. adjourned the issue of the father’s access to a focused trial.

[5] The child is almost 10 years old, is troubled and has some behavioural issues. He is biracial and currently in foster care.

[6] For reasons to follow, I find that access between the father and the child should occur four time a year, for a minimum of two hours, and that these visits should be arranged and supervised in the discretion of the Society. Access shall be subject to various terms as set out below.

Litigation history following the Summary Motion

[7] The focused hearing was first scheduled for December 22, 2022. The father did not attend court on that day. The Society provided the court with information regarding the father’s incarceration. The Society attempted to contact the correctional facility to facilitate the father’s participation at the court attendance. The court was also advised that the father had a bail hearing on the same day as the focused hearing.

[8] I adjourned the focused hearing to January 12, 2023, marking the date peremptory on the father. The attendance was to be in person and all efforts were made to ensure the father received a copy of my endorsement. The father was also provided with an opportunity to contact the court if he requested virtual participation.

[9] When the matter returned before me on January 12, 2023, the father attended virtually and, with the assistance of duty counsel, requested an adjournment. He advised the court that he was retaining counsel and that he had an appointment set for February 2, 2023.

[10] The Society and the Office of the Children’s Lawyer, (the “OCL”), opposed the adjournment request on the basis that the father had ample time to secure alternate counsel after his previous counsel was removed from record, and argued the access order is needed for further permanency planning.

[11] I granted the adjournment on the basis that any delays in the litigation process in trial protection matters must be measured from the perspective of the child. I found that the father should be provided an opportunity to give evidence. The father was provided with an additional opportunity to present his case, and the in-person focused hearing was adjourned again, to May 17, 2023, in person.

[12] A trial management conference was set for March 9, 2023, at which time deadlines were set for the father to file his documents and affidavits. The father was made aware that he was required to identify his witnesses. He was also ordered to serve an updated Form 35.1 and 35.1A affidavit on or before March 9, 2023.

[13] At the trial management conference, the father did not participate at the scheduled time and appeared 38 minutes late. He requested an adjournment, indicating that he continued to try to retain counsel. The trial management conference was not adjourned. Garson J. ordered the father to make best efforts to update, serve and file his Form 35.1 affidavit by April 28, 2023. He failed to do so.

[14] The Society and the OCL advised the court that they had not heard from the father and that they were ready to proceed with the focused hearing, which was scheduled for a third time.

[15] The focused hearing took place in the absence of the father.

Issue

[16] The court is required to determine what, if any, access regime is in the child’s best interest.

Legal Principles

[17] Status review applications are governed by sections 113 to 116 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, (the “CYFSA”).

[18] Where a child is removed from the parent or person in charge of the child immediately before intervention by a Society, the court “shall make an order for access by the person unless the court is satisfied that continued contact with him or her would not be in the child’s best interests.”

[19] The governing sections are s. 104 and s. 105(1) of the CYFSA.

[20] The court is also required to consider ss. 105(5), 105(6), and 105(7).

[21] The court ought not be confined to a one-dimensional definition of “beneficial and meaningful”, as to do so would be to potentially ignore the variety of needs children have as a result of being removed from their parents’ care, both at the date of the order and in the future: Jewish Family and Child Service of Greater Toronto v. K.B., 2018 ONCJ 650, 15 R.F.L. (8th) 166 at paras. 42-43, aff’d 2019 ONSC 6214, 34 R.F.L. (8th) 190.

[22] A child’s best interests are not static. The language of s. 74(3) demands that the court consider a child’s best interests through time. There is nothing in the section to suggest that access should be decided without reference to the future: Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, 151 O.R. (3d) 320, at paras. 50-51.

[23] A child’s best interests in connection with future access involves a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies: J.G. at para. 63.

[24] To summarize, the court must be satisfied that access would be in the child’s best interests before ordering same. In determining best interests, the court must consider not only s. 74(3) of the CYFSA but also s. 105(6), and an analysis should be conducted as to whether or not the relationship between the father and the child is beneficial and meaningful to the child, and also, to the extent relevant, whether an order for access would impair the child’s future opportunities for adoption.

Position of the Parties

The Society

[25] As set out in the draft order submitted at the start of the hearing, the Society seeks the following orders:-

1. That the child, J.N., shall have access to his father as follows: i. Parenting time will be arranged by Family & Children's Services of St. Thomas and Elgin and the respondent father, taking into account the foster caregiver's schedule; ii. Family & Children’s Services of St. Thomas and Elgin will have the discretion with respect to the location, duration, need and level of supervision and frequency; iii. Parenting time is subject to a minimum of 2 hours per month; iv. Family & Children’s Services of St. Thomas and Elgin has the discretion to suspend parenting time should the respondent father be incarcerated; v. In the event that the parenting time goes well, Family & Children’s Services of St. Thomas and Elgin will make every effort to increase the parenting time; vi. J.N. can contact the respondent father by way of a phone call pursuant to J.N.’s wishes; vii. The father can provide letters and gifts to J.N. once per month. The letters and gifts would be sent to Family & Children’s Services of St. Thomas and Elgin’s Office located at 99 Edward Street, St. Thomas, Ontario; viii. The respondent father must provide Family & Children’s Services of St. Thomas and Elgin with his updated contact information (email address, phone number and residential address); ix. If three monthly visits are missed, [the respondent father] can contact the Society to plan for future contact. The frequency of the respondent father’s parenting time will then be at the discretion of the Society; and x. The visits are subject to the wishes of the child as ascertained from time to time by Family & Children’s Services of St. Thomas and Elgin Child in Care Worker.

2. Family & Children’s Services of St. Thomas and Elgin will connect the child, J.N. to have in-person contact and virtual contact with community members from his paternal racial identity and culture to ensure that the child continues to have connections to his cultural and racial identity. The community members and the respondent father can provide Family & Children’s Services of St. Thomas and Elgin and/or the foster caregivers with information, cultural teachings, rituals, etc. with respect to the child’s racial heritage, Burundi and African-Canadian heritage.

[26] The Society submits that all of the requested orders are in the child’s best interests, highlighting the importance of maintaining his racial identity and cultural heritage.

The OCL

[27] The OCL supports all of the orders as requested by the Society. They submit that para. 2 above is required to ensure a social connection exists between the child and his father’s race and cultural heritage.

[28] When asked, the OCL stated that a meaningful and beneficial relationship between the child and the father did not exist.

The father

[29] Though not present at the hearing, his Answer and Plan of Care states he planned to use the support of families from Burundi/ Rwanda, Uganda, Tanzania, Dutch African Caribbean, social services, church, Black Lives Matter, and human rights. He wished to enroll the child at a French school.

[30] The court heard no evidence from him at the hearing.

Evidence and Analysis

[31] The child shares his racial identity with his Caucasian mother and his father. The father identifies with the Burundi culture and is from the Republic of Burundi in East Africa. He speaks five languages: Kirundi, French, Swahili, Kinyarwanda, and English.

[32] The child is with a Caucasian foster family in St. Thomas. The mother resides in St. Thomas. The father’s address is currently unknown. It is believed that he is residing in the Toronto area.

[33] The father’s contact with the child has been historically arranged through the Society.

[34] The untested and accepted evidence before the court is as follows.

[35] On November 4, 2022, the father contacted the Society by email and requested that they not contact him anymore. He has not initiated contact since then.

[36] Prior to that, the contact between the child and the father has been sporadic and inconsistent.

[37] Access between the child and the father is at the Society’s discretion with respect to location, duration, frequency, and need and level of supervision.

[38] On April 20, 2021, a worker attended at the father’s home in Toronto for the purpose of meeting with him. The father was not present, and his girlfriend informed him that he had been arrested the previous night.

[39] The father was incarcerated for a period of time and no access occurred until he was released from custody.

[40] Contact between the child and father was first attempted on June 7, 2021. The Society attended at the foster home for contact through a phone call. The child provided mostly one-word answers in response to the father’s questions. The child and the father attempted to converse in French. After ten minutes, the child sought to terminate the phone call. During this call, the father expressed his love and affection towards the child.

[41] According to the child protection worker, after the child hung up the phone, he fell into his foster mother’s arms and closed his eyes. He expressed fear that his father would take him away from his home and his school, and further expressed fear that his father would find out where his mother lived.

[42] The next virtual contact took place on June 9, 2021, wherein the Society supervised a zoom call. The child was hesitant to participate. The child was reluctant to show his face on camera. The conversation was described to be positive and was terminated at the request of the child after approximately 15 minutes.

[43] For the June 9, 2021 call, a worker attended to meet at the father’s residence in Toronto.

[44] On February 10, 2022, the first in-person visit occurred. There were no concerns identified during that visit.

[45] The next visit was scheduled for February 17, 2022. The child refused to attend that visit; the father was upset.

[46] The next visit was scheduled for February 24, 2022. Again, the child refused to attend at first.

[47] The father then requested the ability to pick the child up from school and spend time with him without a worker. Attempts were made to schedule a visit at McDonald’s.

[48] A visit was scheduled for March 3, 2022. The father did not confirm the access visit. He was not present when the child arrived. The father later indicated that he took a shift at work because the child did not attend the last two visits. He again suggested his plan for picking the child up from school.

[49] The Society made efforts to understand the extent of the father’s criminal conditions because the father wanted to bring the child to his house so they could start building a relationship with his supports and his family.

[50] During a visit that occurred in March 2022, the child did not want any food that was prepared for him and started hitting his face. The father expressed that he did not want the child to bring any food with him, as he needs to eat what is prepared and that he has too many choices. The Society explained to the father that the child bringing food was one thing that made him feel comfortable to go on the visit. The father expressed that he did not feel the child was free to speak, and that the Society was ruining his brain.

[51] The father accused the Society of contributing to the child’s abuse, questioning whether the child had contact with his siblings, suggesting that the child was trying to forget about his father, suggesting that the child was confused and did not know what was happening because he was told different things.

[52] On April 7, 2022, the child refused to attend access.

[53] On April 19, 2022, an in-person visit was scheduled at the father’s home. The child was transported from the foster home to the father’s home. They arrived early and the father was not home. He arrived late with a pizza. The father and the child ate pizza, played soccer, had discussions about soccer registration. At the end of the visit, the child expressed that his favourite thing about the visit was “the drive home”.

[54] The Society expressed no concerns about how the father was acting when with the child. However, the child advised them that he did not want to go to the next in-person visit.

[55] In May 2022, the Society received information that the father was no longer living in London, Ontario. A phone visit was arranged with the consent of the father.

[56] The father suggested that the next in-person visit should occur in Ottawa and provided the child’s aunt’s address.

[57] On a scheduled telephone call set for May 27, 2022, the child refused to participate.

[58] On June 17, 2022, the Society attempted to call but could not get through to the father.

[59] On June 30, 2022, attempts were made to contact the father but there was no answer.

[60] On July 7, 2022, at the request of the father, a gift was dropped off for the child. It was a cellphone.

[61] The Society attempted to contact the father twice, but he did not answer.

[62] Forty-five minutes after the arranged phone call, the father called back. The child and the father talked about school, family and sports. During this call, the child left for five minutes to go to the bathroom while the father waited.

[63] The child eventually agreed to arrange another in-person visit.

[64] On July 29, 2022, the Society contacted the father to try to coordinate a visit for August 2nd. It was suggested that the parties meet in Cambridge, the halfway point. The father suggested that it was too complicated and that meeting in Toronto was the only option. The Society explained that that meant the visit would be shorter because of the travel time required by the child, and the father took no issue. Attempts were made to schedule a visit on August 2nd at Centerville in Toronto.

[65] The location of the visit was selected by the father. The Society requested that the father look into ferry times but there was no response. The Society contacted the father to advise him that there were two potential ferry times. The father selected the earlier of the two. The Society expressed that they would do their best to get there, but there would be traffic. If they were late, the child and the worker would take the next ferry. The father became upset, suggesting that they need to do better, that they need to leave earlier, and that they are putting up barriers to him seeing his son.

[66] The Society suggested the father drive to St. Thomas for 9:00 a.m. on August 2nd and have a seven-hour all day visit with his child. The father refused and insisted the Toronto visit continue.

[67] After the long drive from St. Thomas to Toronto, two workers from the Society, the father and the child took the ferry to Centerville. The father and child were observed to be conversing appropriately. At the conclusion of this visit, the father requested that they could see each other for a longer visit without the influence of workers.

[68] This was the last in-person contact between the child and the father. There is no evidence of any additional phone calls or virtual visits since August 2022.

Cultural and Racial Identity

[69] The Society connected the foster parents with a Rohainda family. This was a family identified by the father that shares his culture and race.

[70] The foster family attended the Rohainda home in October 2021 with the child. Several attempts to schedule visits were unsuccessful due to the requirement to isolate due to Covid-19 and the families’ busy schedules.

[71] The foster family had reached out to the Rohainda family in February 2022, asking if they could provide suggestions on cultural resources and suggesting that they meet with the child. The foster family gathered information about Burundi and intentionally brought this into conversation with the child.

[72] In the Society’s plan of care, they highlight that they are seeking ongoing parenting time to each parent. They recognize that the father is racialized and that the child requires an ongoing relationship with the paternal side of his family and his half-siblings.

[73] It is suggested that this contact is based upon the extended family’s willingness to remain in contact with the child.

[74] In the meantime, the child is continuing to learn French at school. The Society has expressed that they will make best efforts to connect the child with cultural and community events, programs and information related to the paternal family’s Burundi heritage, and that they will reach out to London organizations, such as “Webridge”, that support youth in understanding their Black identity.

[75] Further, as described below, the Society has connected the family with a racialized family for periodic contact, to allow the child a connection to a racialized home within the Elgin community.

[76] Finally, the child attends personal counselling with a racialized Black counsellor.

Child’s Current Struggles

[77] The child struggles with his ability to self-regulate and aggressive behaviour. He has articulated that he wants to hurt people, he is stressed at school, and his ability to cope wears off as the day progresses.

[78] His support services include: a psychologist, an educational assistant, and education mentor, a school social worker, a learning support teacher, an occupational therapist, and an education liaison who works together with the Society and the school.

Application of Legal Principles

[79] This court is required to find a balance between preserving the child’s relationship with his father, and therefore, his cultural and racial identity, and considering how this access will allow the child to transition towards permanency into an adoptive home.

[80] Any existing order for access made under Part V of the CYFSA was terminated when the child was placed in extended society care: s. 105(4) of the CYFSA.

[81] The court must take a holistic consideration of the child’s best interest, which can encompass a wide variety of considerations. This requires an assessment of whether the relationship between the access parent and the child has been beneficial and meaningful to the child and considers impairments to future adoption opportunities.

[82] The court in J.G. explicitly stated that it is no longer the case that a parent who puts forward no evidence will not gain access. The beneficial and meaningful test articulated in the CYFSA is not a separate precondition; instead, it is a consideration within the context of the child’s best interests.

[83] Here, I am unable to find that the relationship between the child and the father is meaningful and beneficial to the child. The undisputed evidence before the court supports that the child resisted access, on occasion ended access early, and went so far as to state that the best part of the visit was the drive home.

[84] However, taking guidance from the Court of Appeal in J.G., my finding that a beneficial and meaningful relationship does not exist does not preclude the court from making an order in the child’s best interest.

[85] While the child and the father have not had regular or consistent access visits, overall, there were no significant concerns with the father’s conduct during the access that did occur.

[86] Positive interactions were recorded by some of the access supervisors and the evidence reveals that the child would respond to the father’s initiatives.

[87] The child’s cultural and racial identity is a significant factor to consider, albeit not the only factor, when determining whether access is in the child’s best interest.

[88] The Society has recognized that the father is racialized and the child requires an ongoing relationship with the paternal side of his family.

[89] Efforts to connect the child with cultural and community events and programs have assisted the child in maintaining his cultural and racial heritage. However, a connection with his father and access visits is a direct means to ensuring the child continues to have a connection with his cultural and racial identity. This direct connection is in the child’s best interest.

[90] However, I do not agree with the entire draft order proposed by the Society, despite the support it received from the OCL.

[91] I agree that it is in the child’s best interest that parenting time be arranged through the Society, taking into account the foster caregiver’s schedule.

[92] I further agree to the Society’s request that they have discretion with respect to the location, duration, frequency, need and level of supervision.

[93] It is also appropriate for the Society to have the discretion to suspend access should the father be incarcerated and for the father to provide his contact information to the Society.

[94] However, portions of the Society’s proposed order are imprecise, subjective, overly broad, and therefore not in the child’s best interest.

[95] For example, the court will not order the clause allowing the Society to make “every effort” to increase access if “the parenting time goes well”. It is noted that the OCL supports this order, suggesting that it is a carrot to the father.

[96] When determining whether access is in the child’s best interest, the court is required to take a child-focused approach, not an approach that focuses on pleasing or incentivizing an access recipient.

[97] The Court of Appeal in J.G. has made it clear that access may take many forms, including the exchange of emails, gifts, video chats or phone calls.

[98] I see no potential consequence or harm to the child if the father be permitted to provide letters and gifts to the child once per month, on the condition that they be sent to the Society office.

[99] The Society requests that this court order that the father contact them to plan future contact if three monthly visits are missed. They further seek in order that the frequency of the father’s access will then be at the discretion of the Society.

[100] Given that the father has asked the Society to no longer contact him, and having consideration for the number of missed access visits as outlined above, it is appropriate and reasonable for this objective term to be included.

[101] The child’s expressed views and preferences regarding access have not been challenged. In the circumstances of this case, with the child’s struggle to gain comfort on access visits, it is appropriate for him to feel empowered and for his voice to be heard. The child’s lawyer supports an order that provides that access shall be subject to the wishes of the child.

[102] I find that the father has the potential to try to undermine the child’s placement and a chance of permanency. On the evidence before me, he has repeatedly expressed disdain toward the Society, blaming them for the child’s behaviour and reaction to him.

[103] Further, the father’s insistence that access occur in Toronto and disregard for the child’s travel time suggests that he is not always capable of acting in a child-focused manner. This has the potential of affecting an openness application.

[104] It would not be in the child’s best interest if his placement and chance of permanency were undermined in any way.

[105] The Society’s proposal for access to occur at minimum two hours per month creates the potential for too much disruption for the child, particularly in view of his reaction to some of the visits.

[106] For this reason, access subject to the child’s wishes will be ordered with access to take place four times per year for a minimum of two hours.

[107] The purpose of this access is to maintain the child’s connection with his father and his cultural and racial identity. The child will be an access holder and shall have four in-person access visits with the father, as access recipient, each year, at times to be facilitated by the Society. These access visits are to be supervised and shall be a minimum of two hours in duration.

[108] I cannot find that it is in the child’s best interest to deem the father an access holder. He has demonstrated mistrust and volatility towards the Society. To name him access holder creates the risk of ongoing conflict and, of greater significance, the risk of a delay in permanency if the father disputes an openness application.

[109] It should be noted that neither the Society nor the OCL provided the court with any submissions with respect to who should be deemed an access recipient and/or an access holder.

[110] Lastly, the Society requests that this court require them to connect the child with community members from his paternal racial identity and culture to ensure that he continues to have a connection. This requested relief is appropriate in the circumstances of this case.

[111] This proposed clause also addresses issues raised by the father in his Answer and generally communicated by him throughout these proceedings. An order shall issue as requested. This allows both the father, and members of his community, to provide the Society with information, cultural teachings and rituals connected to the child's heritage.

Orders

[112] Based on the foregoing, an order shall issue, as follows:

1. The child shall have access to the father as follows: a) Access shall be arranged by the Society and the father, taking into account the foster caregiver’s schedule; b) The Society shall have discretion with respect to the location, duration, frequency, need and level of supervision; c) Access shall occur no more than four times per year, for a minimum of two hours; d) The Society has the discretion to suspend access should the father be incarcerated; e) The father may provide letters and gifts to the child once per month. The letters and gifts should be sent to the Society, at their office located at 99 Edward Street, St. Thomas, Ontario; f) The access is subject to the wishes of the child as ascertained from time to time by the Society; g) The father shall provide the Society with his updated contact information, including his e-mail address, phone number, and residential address; h) If the father misses three scheduled visits, he shall contact the Society to plan for future contact, and the frequency of his access with the child shall be at the discretion of the Society; i) The child shall be deemed to be an access holder and the father shall be deemed to be an access recipient.

2. The Society shall connect the child to have in-person and/or virtual contact with community members from his paternal racial identity and culture to ensure that the child continues to have connections to his cultural and racial identity. The community members and the father can provide the Society and/or the foster caregivers with information, cultural teachings, rituals, etc. with respect to the child’s racial, Burundi and African-Canadian heritage.

3. There shall be no order as to costs.

“Justice Kiran Sah” The Honourable Justice Kiran Sah

Released: July 25, 2023

COURT FILE NO.: FC19/13-01 DATE: July 25, 2023 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: Family & Children’s Services of St. Thomas and Elgin Applicant

• and - M.M. and J.-P.N. Respondents REASONS FOR JUDGMENT SAH J. Released: July 25, 2023