CHILDREN’S AID SOCIETY OF TORONTO Applicant — v. —, 2017 ONCJ 827

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, and is subject to subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) 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.

(9) Idem: order re adult. — 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. . . . 85.—

(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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. CITATION : Children’s Aid Society of Toronto v. N.N. , 2017 ONCJ 827 DATE : 2017-12-01 Toronto File No . CFO 14808/16 ONTARIO COURT OF JUSTICE IN THE MATTER OF an amended protection application under

Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11., respecting G.S., born on […] 2008 BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO Applicant — and — N.N. Respondent Before Justice Manjusha B. Pawagi Heard on 10 July 2017 Reasons for Judgment released on 1 December 2017

Lily Ng ......................................................................................... counsel for the applicant society Lauren Speers ................................................................. counsel for the respondent mother N.N.

Nav Rai ........................................................................................ counsel on behalf of the child G.S. 1: OVERVIEW [1] This case is about whether an order of “access at the discretion of the society” gives the children’s aid society theauthority to place a child on an “extended access visit” without further judicial authorization. [2] The child in this case was originally on an interim supervision order with family friend A.L., with access to her motherat the discretion of the society at a minimum of two times a week.

On June 2, 2017, the society moved the child to the care of anotherfamily friend, W.C., at the mother’s request, under the guise of an “extended access visit.” The society did not advise child’s counsel orthis court in advance of the move. When I learned of the move, I directed the society to bring a motion to vary the interim supervisionorder forthwith. On the hearing of the motion, on July 10, 2017, I granted the order sought placing the child with W.C. subject to thesupervision of the society, with reasons to follow.

Subsequent events have rendered the issue raised on the motion moot as the childreturned to the care of A.L. However, I am releasing these reasons in the interests of providing guidance on the proper

interpretation ofdiscretion​ary access orders made under the Child and Family Services Act, R.S.O. 1990, c.C-11 (CFSA). 2: FACTS [3] The society’s involvement with this family began on December 11, 2016 when the respondent mother, who sufferedfrom a chronic seizure disorder, was admitted to hospital after experiencing a psychotic episode. The society was able to expeditiouslyassess a family friend, A.L., as a placement for the child, age 8, thus avoiding bringing the child to a foster home.

On the first courtappearance of December 16, 2016, I made a without prejudice order placing the child in the care and custody of A.L., subject to thesupervision of the society, with access to the child by the respondent mother at the discretion of the society at a minimum of two timesper week. The matter was then adjourned several times for parties to work towards returning the child to her mother’s care.

The fatherdoes not live in Canada and his exact whereabouts were unknown at that time. [4] Then, on June 13, 2017, to the great surprise of this court, society counsel advised that the society had moved the childto the care of a different family friend, W.C., on an “extended access visit” twelve days earlier, which included changing the child’sschool. The respondent mother had requested the move as she was unhappy with the care A.L. was providing. [5] Child’s counsel advised the court he only learned of the move the day before it occurred, and only from A.L., not fromthe society.

He was not able to meet with the child until shortly after the move. He advised the court that while the child was nowcontent in the new placement she would have preferred not to have moved from A.L.’s care. [6] I expressed concern that the society had acted without legal authority in unilaterally changing the child’s placement,and directed the society to bring a motion to vary the interim supervision order forthwith. That motion was heard on July 10, 2017, andwas granted on the basis that the change in placement was supported by the respondent mother, and unopposed by child’s counsel.

Theorder was made on a without prejudice basis to give A.L. the opportunity to participate. A.L. chose not to do so. However, I indicatedthat subsequent reasons would be provided due to my concerns about the way the access provision and the concept of an “extendedaccess visit” was being interpreted by the society. [7] Events then took a tragic turn. During the night of August 28, 2017, just two weeks after I made a final order onconsent for a protection finding and an order placing the child in her mother’s care pursuant to the supervision of the society for sixmonths, the mother suffered a seizure and died.

The society then placed the child back with A.L. by way of an order made by anotherjudge of this court on September 1, 2017. That order placed the child in the temporary care and custody of the society. Because thesociety had designated A.L. to be a “place of safety” pursuant to the CFSA, the society was able to place the child with A.L. rather than ina foster home. The expectation was that this would become a permanent placement for the child; however, due to A.L.’s partner thensuffering a serious illness, the society had to move the child to a foster home on November 3, 2017.

The Society is currently in theprocess of assessing kin plans. 3: ANALYSIS AND THE LAW [8] An “extended access visit” is a term of art, not law. The society uses it to refer to an access visit where the duration isnot fixed at the start of the visit, and sees it as an available option to the society when access is at the society’s discretion. [9] Pitfalls with the concept of extended access visits are set out in a decision by L. Glenn J. of the Ontario Court of Justicein Children’s Aid Society of Huron County v. R.G., (ON SC), [2003] O.J. No. 310.

The central points from thisdecision with respect to this issue are paraphrased below: a. In an extended access visit with a parent, the society in effect expands its power of discretion over access to the point where the

child is actually living full-time with that parent, even though, according to the order, the child is supposed to be in the care of thesociety. b. Not only is this a contravention of the order, but it can leave the society badly exposed if the child were harmed during the visitbecause the child is still technically in the care of the society. c.

If the visit breaks down and the child is removed from the parent, it results in what is in effect a re-apprehension, but without therequirement that there be a court hearing within five days under s. 46 (1) of the CFSA because there is already an order that has placedthe child in the care of the society. No child should be subject to this kind of upheaval in the hands of the State without the prompt andautomatic review of a court. [10] The society bases its power to authorize an extended visit in orders that leave access to the society’s discretion.

However,the question of whether such orders are themselves proper is not settled. [11] The Court of Appeal in Strobridge v. Strobridge, (ON CA), [1994] O.J. No. 1247, and M.(C.A.) v. M.(C.), (ON CA), [2003] O.J. No. 3707, held that the court cannot delegate decision making over access.

But sincethose were both custody/access cases and involved delegation to a third party such as an assessor or psychiatrist, courts havedistinguished them from child protection cases where the issue is delegation to the society who is one of the parties. [12] There are two competing lines of cases in the child protection context regarding whether the court has the jurisdiction todelegate decision making authority over access to the society. [13] In C.H. v. Durham Children’s Aid Society, (ON SCDC), [2003] O.J. No. 879, leave to appeal refused,[2003] O.J.

No. 2825 (C.A.), the Divisional Court held that the court has jurisdiction to order access at the discretion of the society. Thisjurisdiction was held to be based on the combination of ss. 58(1) and 15(3) of the CFSA.

Section 58(1) gives the court authority todetermine access in the best interests of the children and to “impose such terms and conditions on the order as the court considersappropriate.” Section 15(3) sets out the responsibilities of a society including to “supervise children assigned to its supervision under thisAct.” The Divisional Court found that it would not be in the child’s best interests for the parties to have to return to court for every-dayaccess issues; that maximum flexibility is required to respond to the family’s ongoing needs on a day-to-day basis; and the society hasthe mandate and expertise to deal with these day-to-day issues. [14] On the other hand, there is a line of Ontario Court of Justice and Superior Court of Justice cases that hold that the courtcannot delegate decision making con​cerning access to the society.

This view is expressed in a frequently-quoted passage from Children’sAid Society of Toronto v. D.P., [2005] O.J. No. 930 (S.C.J.) where S.R. Goodman J. commented at para. 40: …While I can certainly understand some of the reasons why it would be efficient, time- or cost-wise, to delegate access issues to thesociety, children and their parents have a right, in my view, to have decisions in respect of access made in an objective and neutralmanner.

One would expect that it would be rare, if ever, that legislation would authorize a court to delegate its judicial functions to anythird party who or which is a party to the litigation, when neutrality and objectivity are so vital to the decision-making process. In myview, simply put and at least on a final basis, the Act does not permit, either expressly or by implication, the court to delegate itsauthority to make orders in respect of access under s. 58 to any person or entity, including the children’s aid society. [15] Justice Goodman distinguished the Divisional Court’s decision in C.H. v.

Durham Children’s Aid Society, noting that thedecision in that case related to a temporary access order made in the course of a child protection case that granted access to the parent (atpara. 33). In contrast, in the case before her, the trial judge had made a Crown Wardship order that indicated it was “silent with respectto access.” See also Children’s Aid Society of Toronto v. B.O., (ON CJ), [2003] O.J. No. 4247 (O.C.J.), at paras. 46-48, and Children’s Aid Society v. C.B., [2007] O.J.

No. 3573 (O.C.J.), at paras. 53-55. [16] While temporary orders granting access at the discretion of the society are still made, courts are more and morefrequently placing parameters on the discretion such as specifying a minimum number of access visits per week. Court oversight is evenmore critical when the access contemplated is really a change of placement by another name, especially when the change of placementmay have been opposed by one of the parties, or, as in this case, by the child.

The society should not be able to get around a disputedchange in placement by calling it an “extended access visit,” just as, at the other end of the spectrum, it should not be able to terminateaccess by calling it a “suspension.” Both extremes push the concept of “access” beyond the breaking point and thus require prior judicialauthorization. There may be valid reasons to place the child on an “extended access visit,” such as when the society wishes to test aplacement with a parent and does not want the child to lose the foster placement in the event the test is not successful.

The point is thatthe decision is for the court to make, not the society. [17] The Court of Appeal has tangentially addressed the question of whether an “extended visit” requires prior court approvalin R.L. v. Children’s Aid Society of the Niagara Region, (ON CA), [2002] O.J. No. 4793. The children in that casehad been in the temporary care and custody of the society for over two years, when relatives came forward to present a plan to care forthe children. The society supported these plans, but the foster parents, who had hoped to adopt the children, did not.

The society advisedthe foster parents that it intended to place the children with their relatives on an “extended access visit” pending final disposition of theprotection applications in the Ontario Court of Justice. [18] The foster parents commenced an application in the Superior Court of Justice seeking an injunction prohibiting thesociety from removing the children from the foster home. The court granted a temporary injunction, but the application was ultimatelydismissed on jurisdictional grounds. The foster parents appealed to the Court of Appeal for Ontario, which dismissed their appeal.

TheCourt of Appeal upheld the Superior Court judge’s determination that the Ontario Court of Justice has jurisdiction over the issue ofextended access visits.

[ 19 ] The Court of Appeal went on to note that while the appeal was about jurisdiction, the issue of “whether the CAS, under the guise of arranging access, is entitled to effect a residential placement for the children is another question” (at para. 35). The Court did not resolve that question, although it observed that the parties had different

interpretations of what constituted “reasonable access.” The society’s view that the reasonable access included “an indefinite extended visit,” while the foster parents’ view was that such a visit would actually be a premature residential placement without the court’s approval.

The Court of Appeal encouraged the parties to seek clarification from the judge of the Ontario Court of Justice who made the order regarding the meaning of “reasonable access.” [ 20 ] The case before me highlights how the concept of “access at the discretion of the society” should not be treated by the society as permitting it to place a child on what is tantamount to a new placement under the guise of an “extended access visit.” It is critically important under the scheme of the CFSA that the society obtain prior judicial authorization before effecting what is really a change in the child’s placement pending final determination of the matter.

Released: 1 December 2017 Justice M.B. Pawagi