Court File and Parties

2024 ONSC 955 Court File No.: FC-23-11 (St. Thomas) Date: 20240213

Ontario Superior Court of Justice

Between: Family and Children’s Services of St. Thomas & Elgin, Applicant – and – D.C. and N.C., Respondents

Counsel: Dana Haklander, for the Applicant Respondents in Person Patricia Coreneil, for the Office of the Children’s Lawyer and for the Child, J.C.

Heard: February 8, 2024

Ruling on Motion

MACFARLANE J.

Introduction

a) The Motion

[1] This is a motion brought by the Office of the Children’s Lawyer (“OCL”) for an order pursuant to s. 78(3) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 (“CYFSA”), appointing the OCL to represent the child, A.C. The motion is supported by the applicant and opposed by the respondents. I heard the motion and granted the order sought on February 8, 2024, with reasons to follow. These are my reasons.

b) Facts and History of the Proceeding

[2] By way of background, the respondents, D.C. and N.C., are the biological parents of three children: two sons, C.C. (17 years old) and C.E.C. (15 years old), and one daughter, B.C. (10 years old). They are also the adoptive parents of biological twin siblings, J.C. and A.C. (7 years old), through a private international adoption process from Haiti in 2019. J.C. and A.C. are racialized black, and of Haitian Creole descent.

[3] The respondents struggled to care for J.C. due to his high needs at an early age. In January of 2023, J.C. was hospitalized following an incident at school. The respondents notified the staff of the applicant that they were unwilling to have J.C. return to their care. The applicant had to this point made genuine efforts to assist the respondents. Nevertheless, as the respondents put in their joint affidavit sworn February 2, 2024 (“Respondents’ Affidavit”), “[d]espite all our efforts it was impossible to keep [J.C.] safe from himself, much less the other kids safe from [J.C.].” The applicant commenced this proceeding and by the temporary order of Korpan J. dated January 20, 2023, J.C. was placed in the care of the applicant, with access rights provided to the respondents and all of J.C.’s siblings, including A.C.

[4] Since J.C.’s admission into the applicant’s care, he has had three placements, and since August 21, 2023, he has been living at a children’s resource staffed home in Peterborough, Ontario. As an indication of the level of care J.C. requires, there have been 43 Serious Occurrence Reports requiring physical restraints since September 2023. The applicant has an obligation to report such incidents to the Ministry of Children, Community and Social Services. The applicant has continued to seek a licensed home to meet J.C.’s long-term needs, and it is not anticipated that he will return to the respondents’ care due to the very high level of supervision and care that he continues to require.

[5] J.C. currently has in-person access with the respondents and A.C. once per month in St. Thomas, which are occurring in the community. Virtual visits are not continuing at this time, as J.C. has been declining calls for the past several months.

Issues and Analysis

[6] The only issue in this motion is whether legal representation is desirable to protect A.C.’s interests (CYFSA, ss. 78(2) and (3)).

[7] There were three affidavits before the Court:

a) The affidavit of Katherine Kavassalis, the Deputy Legal Director of the Personal Rights Department of the OCL, sworn January 17, 2024 (“OCL Affidavit”);

b) The affidavit of Robert Fellows, the Child Protection Worker employed by the applicant and currently assigned to this matter, sworn January 12, 2024 (“Applicant’s Affidavit”); and

c) The Respondents’ Affidavit.

[8] The OCL Affidavit notes that A.C. has a right to be heard in matters affecting her interests, including her relationship to J.C. and the access order that will govern their contact moving forward. The OCL is of the view that the separation of J.C. and A.C. heightens the importance of separate legal counsel for A.C. to ensure ongoing stability in the sibling relationship, taking into account the children’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, and cultural needs, as per the purposes of the CYFSA. The OCL also notes that it frequently represents siblings where sibling access is being sought, including representing for non-subject/non-party children such as A.C. whose interests are affected.

[9] The Applicant’s Affidavit notes the following factors in support of the order sought by the OCL:

a) A.C.’s views and preferences may differ from her parents, the applicant, and even her brother through his Lawyer, Patricia Corneil;

b) The respondents are self-represented and would not be able to explain the legal process to A.C. and the impact of decisions made in the legal process would have on her;

c) Although A.C. is not subject to the current Child Protection Application, she is currently an access recipient with her twin brother (in argument, Ms. Haklander noted that A.C. is also likely to be an access holder in the future);

d) A.C.’s voice and her best interests need to be considered as part of the assessment of J.C.’s best interests, well-being and protection; and

e) A.C. and J.C. are racialized black and share a Haitian culture and heritage that is unique to their lived experiences as young children that grew up in Haiti until the age of three years.

[10] The respondents take the view in their affidavit that they are effective and sufficient advocates for A.C.’s interests. They are concerned that A.C.’s cognitive and speech delays will be major barriers to her ability to communicate with and understand a lawyer. The respondents attached a psychological assessment report pertaining to A.C. dated December 12, 2021, as Exhibit “A” to the Respondents’ Affidavit which outlines these communication difficulties (the “Psychological Assessment”). They point out that the applicant has interviewed A.C. without them present to hear her wishes and thoughts. They note that A.C. is not subject to a child protection application. They acknowledge their obligation to help A.C. maintain a connection to her race and Haitian culture, and state that they are committed to maintaining the connection between A.C. and J.C. They are concerned that appointing a lawyer for A.C. will add to her emotional trauma and anxiety.

[11] As I explained to the respondents at the hearing, this motion is not about their abilities as parents. Nobody is questioning the significant challenges they undertook to bring A.C. and J.C. to Canada and offer them the possibility of far better lives than would be imaginable in their home country. The motion is also not a criticism of their decision to relinquish J.C.’s care to the applicant, and in no way does it diminish what a difficult choice that must have been for them. Rather, the entire focus of the motion is on A.C.’s best interests, and whether the appointment of the OCL is desirable to protect those interests.

[12] As Ms. Corneil noted in argument, the advocacy that the respondents do for A.C., no matter how well-intentioned, is not the same as the child’s own voice. The respondents acknowledge that there are times when their own wishes are contrary to those of A.C. but assert that they are nevertheless able to advocate for her; however, the OCL points out that this raises the possible risk of an adverse influence upon A.C. by the respondents, even unintentionally. Ms. Corneil further argues that it is inevitable in the context of this matter that A.C. will have representation at some point, so it is in her interest to allow her to participate in a meaningful way now. A.C. has the right to notice, to be consulted, and to have her wishes considered and given due weight in the proceeding.

[13] The rights of children under the CYFSA must be informed by domestic and international human rights law. The CYFSA specifically mandates that the legislation be interpreted and applied in a manner consistent with the Canadian Charter of Rights and Freedoms, the United Nations Convention on the Rights of the Child (“UNCRC”) and the Ontario Human Rights Code (“OHRC”). This approach is consistent with the direction of the courts that these rights inform and act as minimum standards in the exercise of discretion and statutory interpretation. The Court of Appeal has emphasized in the child protection/access context that “the aim of the CYFSA is to be consistent with, and build upon, the principles expressed in the United Nations Convention on the Rights of the Child”: see Children's Aid Society of Toronto v. J.G., 2020 ONCA 415, 151 O.R. (3d) 320, at para. 37.

[14] Article 12 of the UNCRC provides that “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” This mandate to allow children to meaningfully express their views and have them considered applies to all children, even in circumstances where those views may be difficult to ascertain: see Children’s Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744, at paras. 97-102. I accept Ms. Corneil’s argument that denying A.C. representation by counsel would deny her a meaningful participatory role in the proceeding, counter to the Charter, UNCRC, and the CYFSA.

[15] I also accept that the Psychological Assessment outlining A.C.’s communication difficulties supports the argument that appointment of counsel is desirable to protect her best interests.

[16] The applicant strongly supports A.C. having her own independent counsel. In support of the OCL’s motion, the applicant reiterated and amplified the considerations set out in the Applicant’s Affidavit, and noted that the OCL is a strong advocate, having taken the somewhat unusual step of seeking its appointment and approving it in advance.

Conclusion

[17] I accept the evidence and arguments put forward by the OCL, as supported by the applicant. I find that legal representation is desirable to protect A.C.’s interests. Respectfully, and without meaning any offence or criticism to the respondents, I am unable to accept that they are in a position to effectively advocate for and advise A.C. with respect to the complex and very important issues surrounding her sibling access with J.C. J.C. has independent representation to advise him on the proceeding and advocate for his interests. A.C. has different interests from both J.C. and the respondents, therefore, an independent advocate, in this case the OCL, is far better placed to represent A.C.

[18] The motion is granted as of February 8, 2024. A copy of these reasons may be attached to the formal order as a schedule outlining the Court’s reasons for appointing the OCL.

Original Signed by “Justice J.R. Macfarlane” J. Ross Macfarlane Justice

Released: February 13, 2024