WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
87 (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-22-CP64 DATE: 2024/09/13
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 V.E.B.P., 5
BETWEEN:
CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – S.P T.W. S.V J.V G.C Respondents
Counsel: Mark Hecht, for the Applicant Cedric Y.L. Nahum, for S.P. Kristen Robins, for T.W. Guilianna Ferri, for S.V. and J.V. Shawn Ferron, for G.C.
HEARD: August 22, 2024 (At Ottawa)
REASONS for DECISION
AUDET J.
1The added party, G.C. (“Ms. C.”), seeks an order granting her access to the child, V.E.B.P (“the child”), 5 years of age. More specifically, she seeks the following access:
- Every week for 1.5 hours at Xtreme Trampoline. Ms. C. to facilitate all the transportation surrounding this activity;
- Alternatively, that the access occurs at the child’s current gymnastic provider on a weekly basis;
- In addition to the above, or in the further alternative, that she be permitted to supervise and facilitate the mother’s access to the child.
2The mother, S.P. (“the mother”), also brought a motion seeking an order that Ms. C. be permitted to supervise her access with the child. She does not take a position on Ms. C.’s request for her own access with the child.
3The Children’s Aid Society of Ottawa (“the Society”), the father, T.W. (“the father”), and the child's current kin caregivers, S.V. and J.V. (“Mr. and Ms. V.” or “the kin”), strongly oppose Ms. C.’s and the mother's motions. They ask that they be dismissed.
BACKGROUND
4The parents were together for about two and a half years but ended their relationship during the prenatal assessment period. The child came into and has remained in the Society’s care under Temporary Care Agreements (“TCA”) between February 25, 2022, and the commencement of the protection application in mid-November 2022. On November 16, 2022, an interim order was made on a without prejudice basis placing the child in the temporary care and custody of the Society with access to the parents.
5The protection concerns centred on the mother’s substance abuse and partner conflict (with former partners) which, in the Society’s view, severely impacted her parental capacity and posed physical and emotional risks of harm to the child. There were also concerns around the mother’s history of mental health challenges and addiction issues as well as the father's own addiction issues and partner conflict.
6While in care, the child was placed in a foster home with Ms. C.'s sister, where Ms. C. also lived. That foster home was closed on or about June 2023 due to verified child protection concerns. It is the Society's evidence that Ms. C. was implicated in the reasons the home was closed, but this is denied by her. What is not disputed is that while the child was residing in that foster home, Ms. C. and her partner, J.M. (“Mr. M.”), were heavily involved in her day-to-day care. Mr. M. was not a caregiver that had been previously approved by the Society. The Society’s main child protection concern (there were others) appeared to be the child’s exposure to adult conflict in the foster home.
7Around that time, the Society was able to locate and approve a kinship plan with Mr. and Ms. V. Ms. V. is the mother’s maternal niece, and the child’s first cousin on her maternal side. The child was placed with her kin on June 22, 2023, by way of an interim without prejudice order. She has remained in their care since that date, and by everyone’s account, this placement is working very well for the child. Mr. and Ms. V. are presenting a permanent plan for her, if she cannot be returned to her parent’s care, whether through a custody order or adoption. They support the child's reintegration with her parents if such reintegration is deemed to be in her best interest.
8Since the child was brought into care, she has had weekly supervised access to her mother. Initially, this occurred once a week, but at the end of June 2023, the mother's access was increased to twice per week, fully supervised by the Society.
9The father also has access to the child on a weekly basis. It is not disputed that while the child was in foster care, she was quite resistant to spending time with her father and held very negative views of him. This is no longer the case since she has been placed with her kin. Quite the contrary, she currently has a very positive relationship with her father, whom she visits at least once a week without supervision.
10In November 2023, Ms. C. brought a motion seeking to be added as a party to this proceeding. This motion was heard in January 2024, and on February 1, 2024, Justice Smith released his decision adding Ms. C. as a party to the proceeding. The next day, Ms. C. served and filed her Answer and Plan of Care in which she seeks an order that the child be placed in her care permanently.
11The within motions were scheduled to proceed in May 2024, but for various reasons, they were only heard on August 22, 2024. These delays are not attributable to the mother or Ms. C.
SHOULD MS. C. BE GRANTED ACCESS TO THE CHILD?
Applicable Legal Principles
12Pursuant to s. 94(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched. 1 (“CYFSA”), the court must make a temporary order regarding the care of and custody of a child pending the disposition of the protection application, and such an order “may contain provisions regarding any person’s right of access to the child”, on terms and conditions deemed appropriate by the Court as per s. 94(8). When making such orders, the court must consider the best interests of the child in as defined in s. 74(3):
BEST INTERESTS OF CHILD— Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
13The court is also empowered to make an access order in a child’s best interest under s. 104 of the CYFSA, and in that context, the following additional considerations are mandatory pursuant to s. 105(6):
(a) Whether the relationship between the person and the child is beneficial and meaningful to the child; and
(b) If the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.
14The list of factors identified in s. 104 of the CYFSA are not exhaustive, as demonstrated by the use of the word “including” immediately preceding the list of relevant factors. I agree with counsel for the Society that the ultimate test for the court when faced with a request for access is the best interest test. Nothing precludes the court from considering other relevant factors including, for instance, any of the factors set out in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”).
15On the particular facts of this case, the following additional factors found in s. 24 of the CLRA (as modified by me to suit the circumstances of this case) are relevant to the issue of whether Ms. C. should have access to the child:
- The person’s willingness to support the development and maintenance of the child’s relationship with her parents and extended family;
- The ability and willingness of the person seeking access to communicate and co-operate with the child’s parents or caregivers on matters affecting the child;
- The existence of family violence or adult conflict and whether there is a risk that the child might be exposed to such adult conflict during access.
16There appears to be no relevant caselaw on the issue of an unrelated non-parent seeking an interim order for access with a child who is the subject on an ongoing protection application, although these orders are quite frequently made on consent of the parties in child protection proceedings.
17Counsel for the kin brought to my attention Justice Labrosse’s decision in Villeneuve v. Bell, 2018 ONSC 4518, which sets out the legal principles applicable to a non-parent’s request for access to a child in the context of a family law proceedings. While I agree with everything Justice Labrosse said in that case, and that some of the principles he laid out have some relevance here, I am of the view that a person’s request for access in a child protection proceeding brings about different considerations than those relevant to a family proceeding, in which children are generally cared for by one of their parents.
18In a child protection proceeding, particularly in circumstances where a child has been removed from their parents’ care, and more especially when the child is in foster care, there is an enhanced desire to maintain the child’s pre-existing meaningful and beneficial relationships with extended family members, including with members of the child’s community. This is so even if these third parties are not related to the child.
ANALYSIS
19In the case at bar, I am of the view that it is not in the child's best interest to have access to Ms. C. I come to this conclusion for the following main reasons.
20I accept that during the eighteen months the child was living in Ms. C.’s sister’s foster home, she was heavily involved in caring for the child. I am even prepared to conclude that during this time, Ms. C. developed a close relationship with the child, caring for her on a daily basis. Given the contradictory evidence before me, I am unable to come to any conclusions as to the quality of the care provided to the child by Ms. C. or Mr. M. However, it is not disputed that the child was not doing so well while in foster care.
21Ms. C. is nothing more in this child’s life than the sister of the foster caregiver with whom the child was placed. Ms. C. is not a family member, she had no relationship with the child before she was placed in that foster home, and she has had no contact — except once — with her since she was removed from the foster home in June 2023 (although I acknowledge that she has requested access to the child since at least November 2023, when she filed her motion seeking to be added as a party). The only contact between them occurred when Ms. C. attended an access visit with the mother without the Society’s consent or knowledge, while being fully aware that the Society did not allow for such contact. On that occasion, she saw the child for a few minutes before being asked to leave.
22The only current connection between Ms. C. and the child is the fact that since the child was removed from the foster home, Ms. C. has become close friends of the mother, and one of her main supports.
23The evidence satisfies me that the child does not spontaneously mention Ms. C., unless she is spoken to about her, and she does not ask for her. This is not surprising since the child would have only been three years old when she was removed from Ms. C.’s sister’s foster home, and Ms. C. was but one of her caregivers in that home. While this relationship appears to have been meaningful to Ms. C., I harbour significant doubts as to whether it was, or remains, meaningful to the child.
24I am also not convinced, based on the evidence presented to me, that the relationship between the child and Ms. C. was beneficial to the child. The evidence before me is that she was having night terrors and displaying concerning behaviors while living in foster care, as reported to the Society by the foster mother. While living in the foster home, the child was exposed to adult conflict, and this is concerning since by Ms. C.’s own account, she was caring for the child on a daily basis during that time. This suggests that Ms. C. was unable to protect the child from adult conflict. For these reasons, it is difficult for me to conclude that Ms. C.’s involvement in the child’s life was sufficiently beneficial to her to meet the requirement of s. 105(6) of the CYFSA.
25As stated earlier, while living in foster care the child was very resistant to spending time with her father. At that time, the Society shared the father’s concerns about the messaging the child was receiving about her father from Ms. C. and the other people living in that home. There were also concerns about the foster family’s attempts to establish themselves as the child’s family (for instance, by encouraging the child to call Ms. C. “mommy Gigi”), and unverified concerns being reported to the Society about the father. It is telling that since she was placed with her kin, the child’s view of her father has completely shifted, and she now has completely unsupervised access with him which include plans for overnight visits once the father’s housing situation is sorted out.
26While the child was in foster care, the relationship between the mother, the mother’s extended family and the kin was positive, and they supported the kin’s plan to have the child temporarily placed in her kin’s care. Over the past several months, their relationship has deteriorated, and the evidence before me suggests that Ms. C.’s involvement with the mother and her extended family may have been a significant factor, if not the cause, for this recent divide.
27After the child was removed from her foster home, Ms. C. asked to care for the child and she and Mr. M. participated in a kin assessment. On September 22, 2023, the Society advised the parties that Ms. C. and Mr. M.’s plan had not been approved. I read the kin assessment completed by Ms. Farrell as well as the affidavit that she filed in support of the Society’s position in this motion. The Society did not approve Ms. C. and Mr. M.’s plan based on: their lack of transparency around references, the fact that their references had not called back, that there had been verified protection concerns regarding adult conflict in the foster home where Ms. C. had been residing with the child, and the fact that the Society was never made aware that Mr. M. had played such a hands-on role with the child during that period, despite him not having been approved to do so (the Society knew that Ms. C. was part of her sister’s household, but was unaware that Mr. M. was also staying there, and caring for the child on a day-to-day basis).
28The evidence presented to me in this motion, including the evidence of Ms. Farrell, supports the Society’s conclusion that Ms. C. and her partner have not been transparent with the Society. Additionally, Ms. C.’s professed ability to care for the child is seriously undermined by allegations she recently made in a civil lawsuit against the City of Ottawa. In this lawsuit, she claims damages resulting from alleged workplace misconduct which she asserts has had a devastating impact on her physical, mental, and emotional health. Yet, at the time her plan to care for the child was assessed by the Society (only a year ago), Ms. C. told Ms. Farrell that she had never experienced mental health issues.
29Since she was born, this child has had a very unstable life. From her birth until September 2021, she was in the care of her mother. Then, she was placed with her maternal grandmother for a couple of months following which she was placed with a maternal aunt until February 2022, under temporary care agreements. In February 2022, she was brought to a place of safety and placed in Ms. C.’s sister’s foster home where she remained until June 2023.
30The child has now been in her kin’s care for fourteen months. They are part of her extended family, and they are presenting a permanent plan for this child. They have been supportive of ongoing access by both parents and have demonstrated their ability to promote the child’s relationship with both of her parents, including extended family members. The child is doing very well in their care and there are no reported concerns. She is no longer having night terrors, no concerning behaviors are reported, and she is attending counselling regularly, meeting all of her milestones.
31Ms. C. argues that if she is not granted access to the child, she will be denied an ability to maintain a relationship with the child pending trial, and to test her plan to care for her on a permanent basis. One’s ability to test a plan of care is not one of the factors set out in the legislation, although I agree that, in proper circumstances, this might be one of the reasons motivating the Society and the parties to a child protection proceeding to allow access between a child and a third party (including a person not related to the child). However, in the circumstances of this case, I am of the view that the court must remain focussed on the plans being presented by the child’s family members, including her parents, and on promoting the child’s relationships and attachment to them.
32Additionally, this child’s schedule is already quite busy. She attends school daily, and outside of school she has at least three visits per week with her parents (two with her mother and a minimum of one with her father). In addition to all this, she has therapy appointments. Her available time outside of school is so limited that Ms. V. explains that she often has to remove her from school to attend her therapy sessions and other appointments. This child is only five years old. She needs some days each week when she can rest, bond, and spend quality time with her kin at home. The goal at this stage is for this child to increase her access with her parents, not to create additional obligations in her already busy schedule for the purpose of testing Ms. C.’s plan.
33For these reasons, Ms. C.’s motion for interim access to the child is denied.
THE MOTHER’S REQUEST TO HAVE MS. C. ACT AS HER ACCESS SUPERVISOR
34My findings above make it clear that Ms. C. would not be an appropriate supervisor of the mother’s parenting time with the child.
35The role of an access supervisor is to ensure a child’s physical, mental, and emotional safety during a parent’s visit with them. In the context of child protection proceedings, a supervisor must remain neutral and be trusted to report promptly and honestly to the Society about how the visit went, and whether there were any concerns about the parent’s care of the child during the visit. An access supervisor should not be actively engaged with the child during the visit, unless intervention is required to mitigate potential risks to the child, and the parent must be given the space he or she needs to make the visit beneficial to them and the child.
36My findings in relation to Ms. C.’s lack of transparency, her involvement in creating conflict between the kin and the mother and maternal family members, her negative messaging to the child about her father and the lingering concerns about her ability to shield the child from adult conflict, among other things, do not make her a suitable supervisor of the mother’s access with the child.
37Furthermore, given that her request for her own access to the child is denied, I am concerned that Ms. C. will use her role as supervisor to engage with the child and spend time with her, as opposed to affording the mother all of that time spend with her daughter.
38For these reasons, the mother’s motion to allow Ms. C. to supervise her access with the child is denied.
Justice J. Audet
Released: September 13, 2024