Linck Child, Youth and Family Supports v. S.B., 2025 ONSC 705
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT
RE: Linck Child, Youth and Family Supports, Appellant
AND:
S.B. and J.D.R., Respondents
BEFORE: R. Raikes, J.
COUNSEL:
Counsel, for the Society (Appellant)- P. DeBoer
Counsel, for the Respondent, S.B. – C. Yu
Counsel, for the OCL – D. Sandor
No one appearing for the Respondent, J.D.R.
HEARD: September 24, 2024
ENDORSEMENT
1In this decision, I will refer to the child and family members by initials for privacy reasons.
2The Appellant, Linck Child, Youth and Family Supports (hereafter “the Society”) appeals from two temporary orders made by Justice M. Vickerd of the Ontario Court of Justice dated April 4, 2024 and April 8, 2024.
3On April 4, 2024, Justice Vickerd was dealing with the issue of access between a child in temporary Society care, B., and his mother and siblings. She learned for the first time during that hearing that the Society planned to immediately place B. in a group home in Ottawa. She adjourned the access hearing to the next day for further submissions and endorsed:
“The issue of B.’s access with the mother and siblings is adjourned for further planning to be addressed on April 5, 2024 at 2:30 p.m. by Hybrid Zoom. Pending further Court Order, B. shall not be moved from the County of Chatham-Kent.” [Italics added.]
4The submissions were completed on April 5 and on April 8, 2014, Justice Vickerd made the following endorsement:
“The child B. born January 14, 2013 shall have in person unsupervised access visits with his mother S.B. to occur not less than three times per week, for a period of not less than three (3) hours per visit, with a view to expanding the visits to include overnights as agreed between the Respondent mother and the Society. Said visits may occur where arranged by agreement of the mother and the Society but may include at the grandmother T.P.’s home, the mother’s home, in the community or at the Society offices (during B.’s residence there).
For the purposes of facilitating the access visits, the child shall not be placed at a residence beyond the travel time for the child of two (2) hours each way to Chatham and return.” [Italics added.]
5The Appellant submits that in both endorsements, Justice Vickerd was incorrect and made a palpable and overriding error. She exceeded her jurisdiction by limiting the Society’s ability to place the child into a placement while in the temporary care of the Society. In doing so, she misinterpreted the applicable legislation and made an access order that effectively restricted the Society’s ability to place the child into a placement while in its temporary care.
Facts
6The facts are largely undisputed.
7B. is the second oldest of five children who were the subjects of a protection application by the Society. The application was first before the Ontario Court of Justice on May 30, 2023.
8On that date, Justice Vickerd made an interim interim order placing B. and his brother, N., in the temporary care of the father, subject to Society supervision and further terms and conditions. The order provided for access by the mother and other siblings. In the same order, Justice Vickerd placed the remaining three children in the care of the mother subject to Society supervision and further terms and conditions. The order provided for access to those three children by the father.
9On September 18, 2023, Justice Horton made a temporary without prejudice order that removed B. and N. from the care of the father and placed them in the temporary care of the mother subject to Society supervision and other specified terms and conditions. The father had access to B. and N.
10On November 10, 2023, Justice Vickerd confirmed the September 18, 2023 order on an interim basis.
11On November 22, 2023, the Society sought to remove two of the children, L. and N., from the mother’s care to place them in the temporary care of the Society. Justice Vickerd made a temporary without prejudice order that all five (5) children, including B., be placed into the temporary care of the Society.
12B. has been in temporary Society care since the order of November 22, 2023. He has been residing in the Society’s building since December 2023 as the Society has been unable to find a viable placement. The Society explored foster placement, treatment home placement, outside paid resource, and kinship placement options without success. B. has been cared for by Society staff on a rotating basis around the clock.
13In early April 2024, an outside paid resource placement for B. was located in Ottawa.
14On April 4, 2024, a hearing was held before Justice Vickerd regarding placements for the other four children with their mother and maternal grandmother, respectively. Those placements were approved. The issue of sibling access arose. That is when the Society disclosed that B. was being moved to a placement in Ottawa. Justice Vickerd then made the first of the two endorsements quoted above (see para. 2).
15On April 5, 2024, the Society provided an access plan for B. to Justice Vickerd. The plan was supported by the OCL and by the mother, the latter as a matter of “last resort”. Justice Vickerd reserved her decision and released her endorsement on April 8, 2024.
16On April 8, 2024, Justice Vickerd made the second endorsement (see para. 3 above). In addition to the two provisions already quoted, the order provided that:
a. Should a residential treatment facility placement become available for the child particular to his needs, (i.e. CPRI or other treatment facility), paras. 1 and 2 [quoted above] of the order may be reviewable.
b. All sibling access may occur during the exercise of the Respondent mother or Respondent father’s parenting time or as arranged with the maternal grandmother, T.P.
17At the time of the April court dates, B. had been exercising weekly in-person, unsupervised access with his mother along with additional virtual access with his mother and siblings. He had been in placements since being in Society care including a foster home and with his maternal grandmother. As mentioned, he had been residing in the Society’s building since December 2023 when the April hearings occurred.
18In her reasons, Justice Vickerd found that the Society’s access plan was not in B.’s best interests as it “…would not support a successful reintegration of B. back into his family”. The Society’s plan to move B. to Ottawa would require that access occur less frequently and for longer periods rather than “…gradual ‘building’ of parenting time through frequent short periods of contact”.
19She also found that the Society’s access plan contemplated access bi-weekly for full weekends which would force B. to endure significant travel. She concluded that, “Lengthy periods of transportation, eight hours or more per trip, for a child who is already extremely dysregulated could be upsetting and even dangerous for B.”
20She noted that the proposed placement in a group home with no treatment component did not outweigh the benefits of the existing access B. had with his family. She was mindful that the current living arrangements (in the Society’s building) was less than ideal but wrote that, “…the solution is not to send the child away from his family and community due to the Society’s lack of resources. Although the Society is challenged by resource issues, this fact should not override a child’s rights under the CYFSA or the purposes of the Act.”
Law and Analysis
Standard of Review
21The standard of appellate review on questions of law is correctness. For findings of fact, the standard of review is “palpable and overriding error”. Where the issue is one of mixed fact and law, if the alleged error of law cannot be separated out, the standard of review is “palpable and overriding error”: Housen v. Nikolaisen, 2002 SCC 33, at paras. 8-10, and 36; Bloom v. Bloom, 2018 ONSC 5343, at para. 6.
22An appellate court may interfere with a motion judge’s findings only if the there has been a palpable and overriding error that constitutes a substantial wrong or miscarriage of justice: Stein et al. v. The Ship “Kathy K” et al., (1975), 1975 CanLII 146 (SCC), 62 D.L.R. (3d) 1 (S.C.C.), at p.. 5; Children’s Aid Society of Toronto v. M.L., 2003 CanLII 2342 (ON SC), [2003] O.J. No. 653 (S.C.J.), at para. 5; Bloom, at para. 6.
23In Benhaim v. St-Germain, 2016 SCC 48, the Supreme Court explained “palpable and overriding” at par. 38 as follows:
…highly deferential standard of review… “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at the leaves and branches and leave the tree standing. The entire tree must fall.
24An appeal is not a rehearing that takes place as if there was not already a decision on the merits. The motion judge’s decision is entitled to due respect and should not be set aside unless it is shown that the judge erred in his or her appreciation of the evidence, in the inference(s) drawn from the evidence, or in the application of the relevant legal principles and legislation: Carter v. Brooks, 1990 CanLII 2623 (ON CA), [1990] O.J. No. 2182 (ON CA); H. B. v. Children’s aid Society of Brant, 2007 CanLII 54663 (ON SC), at para. 22.
Did the learned judge err in her interpretation of the governing legislation or in its application to the facts before her?
25This is a child protection proceeding governed by the provisions of the Child Youth & Family Services Act, 2017 (hereafter “CYFSA”).
26The child, B., was previously ordered into the temporary care of the Society. Section 35 of the Act sets out the functions of the Society as follows:
35 (1) The functions of a children’s aid society are to,
(a) investigate allegations or evidence that children may be in need of protection;
(b) protect children where 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 this Act;
(e) supervise children assigned to its supervision under this Act;
(f) place children for adoption under Part VIII (Adoption and Adoption Licensing); and
(g) perform any other duties given to it by this Act or the regulations or any other Act.
27When a child is placed into the care of the Society, the Act gives the Society “the rights and responsibilities of a parent for the purpose of the child’s care, custody and control”: Syl Apps secure Treatment Centre v. B.D., 2007 SCC 38; section 110(1) CYFSA.
28Section 94 deals with adjournments including custody and access during the period of the adjournment. That provision is central to this appeal; especially the scope of the Court’s authority and the interplay between subsections (2), (6) and (8).
29Section 94 states:
Adjournments
94 (1) The court shall not adjourn a hearing for more than 30 days,
(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or
(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.
Custody during adjournment
(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.
Where child is subject to extra-provincial order
(3) Where a court makes an order under clause (2) (d) in the case of a child who is the subject of an extra-provincial child protection order the society may, during the period of the adjournment, return the child to the care and custody of the child welfare authority or other person named in the order.
Criteria
(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
Placement with relative, etc.
(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
Terms and conditions in order
(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,
(a) reasonable terms and conditions relating to the child’s care and supervision;
(b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.
Application of s. 107
(7) Where the court makes an order under clause (2) (d), section 110 (child in interim society care) applies with necessary modifications.
Access
(8) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.
Power to vary
(9) The court may at any time vary or terminate an order made under subsection (2).
Evidence on adjournments
(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.
Child’s views and wishes
(11) Before making an order under subsection (2), the court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.
30B.’s temporary placement is captured by subsection (2)(d). The essence of the order is that B. remain “in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody”. Accordingly, the court does not have jurisdiction under subsection (6) to impose terms and conditions relating to B.’s care and supervision including the Society.
31Thus, nothing in s. 94 authorizes the court to determine where B. will reside and under what terms and conditions so long as he is in the care and custody of the Society. The Society alone makes that determination consistent with its function under s. 35 and the purposes of the Act.
32That does not end the analysis, however. Subsection (8) of s. 94 expressly gives the court the jurisdiction and authority to make access orders for any child for whom a temporary care order has been made. The jurisdiction to do so expressly includes where the child is in temporary Society care under subsection 2(d) as was the case here.
33Therefore, Justice Vickerd was entitled to make an access order for B. even though B. was in Society care and custody under a temporary order. In doing so, she was required to take into account the purposes of the Act including the best interests of the child.
34Section 1 sets of the purposes of the Act. It states:
Paramount purpose and other purposes
Paramount purpose
1 (1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.
Other purposes
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:
While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.
Services to children and young persons should be provided in a manner that,
i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons,
iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
iv. takes into account a child’s or young person’s cultural and linguistic needs,
v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and
vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.
Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible.
Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.
First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.
Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.
35Section 74(3) sets out the factors the court must consider in making an order in the best interests of the child. It states:
Best interests of child
(3) 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.
36The Society contends that the orders made by Justice Vickerd amount to interference with the Society’s exclusive right and responsibility to place the child when in its care under s. 94(2)(d). In Children’s AID Society of London and Middlesex v. A.L., 2018 ONSC 5973, the mother and foster parents filed a two phase family plan: phase one - to have the child placed in extended Society care and, phase two – the child be adopted by the foster parents. Justice Tobin wrote at paras. 128-129:
128A significant problem with the joint family plan is that the court does not have the ability to give effect to the second part of the joint family plan, that is, placing the child in extended society care for the purpose of adoption by the foster parents. There is no statutory or other authority that allows the court to direct with whom the Society must place the child after an extended society care order is made.
129In this child protection case, the court can place the child in extended society care pursuant to s. 101(1) ¶ 3 if this disposition is in the child’s best interests. However, in this child protection proceeding, the court cannot add to the extended society care order that the child be placed with the foster parents for the purposes of adoption or direct that they be allowed to adopt the child. In short, this court cannot give effect to the second part of the order the mother seeks. Once a child is in extended society care, it is the Society (on behalf of the Crown) who has the rights and responsibilities of a parent for the purposes of the child’s care, custody and control: s. 111. There is no provision in the Act that allows the court to direct where a Society is to place a child after they are placed in extended Society care. The legislation leaves that up to the Society: s. 109(2). At best, the court can make a recommendation about placement. However, I find that any recommendation the court may make must take into account the statutory pathway mandated by the Act. In this case, that means before the court could recommend placement with the foster parents, I would need to determine that placement with the kin would not be in the child’s best interests. [Italics added.]
37Clearly, the circumstances in A.L. are factually distinguishable from the circumstances before Vickerd J. Nevertheless, the principle that the court lacks authority to direct the Society regarding placement of the child is apropos. There is likewise no jurisdiction under the CYFSA for the court to direct where the child is placed during the time the child is in temporary Society care under s. 94(2)(d). Did Justice Vickerd do so?
38A careful review of Justice Vickerd’s decision shows that she did not in her reasons or by her order direct where the child was to be placed. Rather, she fairly and quite properly dealt with access, a matter over which she had broad discretion. In making the access order and in setting the terms for access, Justice Vickerd was required to consider the purposes of the Act and the best interests of the child: Children’s Aid Society of Toronto v. K.B., 2024 ONCJ 153, at para. 69; Catholic Children’s Aid Society of Toronto v. K.S., 2020 ONCJ 268, at para. 75; s. 74(3) CYFSA. She did so.
39In a child protection case, one objective of an access order to the parent who had care of the child before Society intervention is to gradually increase contact to the extent it is safe to do so, for the purpose of returning the child home. The access order facilitates the maintenance and development of a relationship with the parent during the time the child is in temporary Society care: Children’s Aid Society of Toronto v. K.M., 2018 ONCJ 361, at para. 201.
40Doing so allows the Society and court to assess whether the parent is capable of parenting the child on a full-time basis. Family reunification, where reasonable, is achieved incrementally: Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, at para. 79. A drastic reduction of access does not advance this goal and may be a step backwards: Children’s Aid Society of Toronto v. C.G., 2018 ONCJ 212, at para. 77.
41In this case, Justice Vickerd was live to the circumstances and needs of B. She knew that he was afraid of driving on the 401, of driving too close to water, and of not knowing where he was. A move to Ottawa, a 7-8 hour drive from Chatham would necessitate lengthy periods of transportation and would impact the mother and siblings if she were to travel to Ottawa to see him. Justice Vickerd found that the proposed move to Ottawa would impede family reunification and negate the progress made through access to that point. It was “simply setting the mother and children up for failure and make the possibility of reunification impossible”. That was a finding she was entitled to make on the information provided. I see no flaw in that reasoning in the circumstances of this case.
42When looked at as a whole, Justice Vickerd’s decision of April 8, 2024 engages the best interest factors in s. 74(3). The term to which the Society objects on this appeal is clearly ancillary to the access ordered. The access ordered is reasonable and consistent with B.’s best interests. It is likewise consistent with the objective of family reunification. This is a case where the child was already having regular access with his mother, grandmother, and siblings.
43The disputed term does not direct the placement of the child, nor is it so restrictive as to amount to the same result. The term in question simply recognizes the child’s personal circumstances, the importance of regular and increased access to his family including his siblings, and it is consistent with the child’s best interests. The distance restriction is reasonable and necessary for the access ordered to occur. The term in question cannot be divorced from the other access provisions ordered and must be considered in the context of same.
44Justice Vickerd’s decision as to what access was appropriate for the child is entitled to deference. As indicated, her access order and the conclusions she reached as what was in B.’s best interest vis-à-vis access with his family was reasonable and appropriate. I find no palpable or overriding error. I find no error of law. She did not exceed her jurisdiction under s. 92(8) of the CYFSA.
45With respect to her order of April 4, 2024, I agree with OCL counsel that that order was overridden and subsumed by her decision on April 8, 2024, four days later. I note that she simply preserved the status quo for a day to allow submissions on access to be completed.
Conclusion
46For the reasons above, the appeal is dismissed. If costs are in issue and if the parties cannot agree on same, they may make written submissions not exceeding 3 pages within 15 days hereof.
Justice R. Raikes
Date: January 31, 2025