Children’s Aid Society of Algoma v. S.P., 2011 ONCJ 93

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 and is subject to subsections 48(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 . . . the 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) Prohibition: 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.

(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) Idem. — 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. Sault Ste. Marie Registry No. 184/2010 DATE: 2011·II·16 CITATION: Children’s Aid Society of Algoma v. S.P. , 2011 ONCJ 93 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF ALGOMA, Applicant, — AND — SHANNON P., EMERY C., M’CHIGEENG FIRST NATION and WHITEFISH RIVER FIRST NATION, Respondents.

Before Justice John Kukurin Heard on 12 January 2011 Reasons for Judgment released on 16 February 2011

STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subsection 37(3), paragraph 37(3)¶13, subsection 37(4) andsubsection 51(3) Children’s Law Reform Act, R.S.O. 1990, c. C-12 [as amended]. Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 [as amended], subsection 16(10). CASES CITED MacGyver v. Richards, , 22 O.R. (3d) 481, 84 O.A.C. 349, 123 D.L.R. (4th) 562, 11 R.F.L. (4th) 432, [1995] O.J. No.770, 1995 Cars​well​Ont 90 (Ont. C.A.). John J. Rossi ................................................................................. counsel for the applicant society Eric D.

McCooeye ................................................... counsel for the respondent mother, Shannon P. David G. Stone ............................................................ counsel for the respondent father, Emery C. Forrest Hare .................................................. band representative for the M’Chigeeng First Nation No appearance by or on behalf of Whitefish River First Nation, even though served with notice [1] JUSTICE J. KUKRIN:— In this child protection case, the child Realyn (age one year) was apprehended six monthsago.

A “without prejudice” order was made on the first court date placing the child in the interim care and custody of the society. Theclaim for temporary care and custody in the society’s motion (at tab 2) was adjourned and finally set for hearing on 12 January 2011. Inthe meantime, the mother, Shannon, has brought a motion (at tab 10) seeking a return of Realyn to her temporary care and custody.

Inthe alternative, Shannon seeks an order for interim access to Realyn, not less than once a day, for a minimum three-hour visit, at herhome or in the community. [2] The criterion for determining temporary care and custody after a child is apprehended is set out in subsection 51(3)[1]of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the “Act”).

This sets out a two-part test, both parts of which thesociety has to meet, before an order can be made that removes the child from its pre-apprehension caregiver. [3] Both the mother and father had charge of this child prior to the society’s intervention. The society has met both parts ofthe two-part test in subsection 51(3) of the Act with respect to each parent. Its evidence supports a belief on reasonable grounds thatRealyn would likely suffer harm if returned to her mother, or to her father, and an even stronger belief of this if returned to them together. [4] With respect to the father, Mr.

Emery C., there is no order that the court can make that would adequately protect Realynif returned to his care. He is addicted to drugs, by his own admission and recognizes that he needs help to overcome this problem. Hedoes not seem to be seeking return of Realyn to his care on a temporary basis. [5] I do not see that a return of the child to the mother, Ms. Shannon P., at this point is possible.

I am satisfied on theevidence: • that she has a significant alcohol problem; • that she likely has serious anger management problems; • that she can be violent with others; • that she cannot be trusted to abide by court conditions; and • that she has committed criminal offences of violence, for two of which she has been convicted fairly recently. [6] In addition to the foregoing, the mother refuses to divulge where she is living. She does not deny that she refuses to doso.

And she does not state in her evidence the address of her home at which she wishes to have care of or access to Realyn. [7] The society’s claim for temporary care and custody is granted. The mother’s claim for temporary care and custody isdismissed. [8] However, the main issue in these motions is not really temporary care and custody. The real matter that was arguedwas maternal access. Moreover, it is not whether there should be maternal access.

Rather, it was what form that maternal access is totake. [9] The “without prejudice” interim order made six months ago did contain provisions for access to both the mother and thefather. These access provisions were “generic” in the sense that they are typical of the initial access that the society seeks in almost allcases. The salient features of this kind of access are that it is to be: • reasonable; • on reasonable notice to the society; • supervised in the discretion of the society; • supervised only by a society-approved access supervisor;

• at a location approved by the society; and • subject to a number of other “conditions” generally requiring the access parent to do, or to refrain from doing, certain things, or giving the society some specified right. [2] [ 10 ] This kind of initial access order coupled with the fact that the child is in the society’s care, creates a situation that essentially puts the society in the driver’s seat in terms of the access that actually is available to be exercised. What is not set out in such generic orders are things like frequency and duration of access visits, and times of access visits.

What is left to the decision of the society is whether access visits, or any part of them, will be supervised. Moreover, by virtue of the requirement of the society approval, what is also decided by the society are who is approved as access supervisor for access visits and where such access visits will take place. [ 11 ] There is more. Such generic access orders contain provisions that the parental access is to be “reasonable” and that it is to be exercised “on reasonable notice” by the parent to the society.

Although this kind of language sounds “reasonable”, it often turns out to be a focus for conflict and disagreement between the parent and society. The reason for this is fairly obvious when the society has the child. It is the society that has the practical say in what is reasonable parental access. It is also the society that dictates what is reasonable parental notice. If the parent disagrees and the parent and the society cannot come to some accommodation, the only recourse to the parent (or to the society) is to come to the court for help to resolve the disagreement. Generally, it is the parent who does so.

Almost invariably, as is the case here, the request is for the court to set out in specific terms in a court order the parameters of his or her interim parental access. More often than not, those parameters relate to time, frequency, duration, location, extent of supervision, if any, and who may attend at access visits. There may be others in any particular case depending on the circumstances. [ 12 ] There is no statutory guidance specific to what kind of access the court should order.

The statute uses very broad language that permits the court, when making access orders, to impose “such terms and conditions as the court considers appropriate”. How does the court decide the kind of access that is appropriate?

That exercise involves a recipe that consists of: • a measure of the factual (as opposed to opinion) evidence in the case; • an equal measure of the mandatory considerations specified by the statute; • a liberal sprinkling of common sense; • a recognition of where the decision on interim access lies in the contextual framework of the child protection case in which it is being made; • heaping amounts of helpful arguments that counsel may make to bring together, metaphorically speaking, all of the above; and • finally, another round of common sense to evaluate whether the end product is really “appropriate” in the circumstances. [ 13 ] The mother is entitled, pursuant to the existing “without prejudice” order, to access that is “reasonable”.

I daresay that this should be an invariable term or condition of all parental access. However ambiguously this descriptor may be interpreted, it is always a good starting point from the court’s point of view. [ 14 ] A determination of what the society believes to be “reasonable” and “appropriate” with respect to terms and conditions of access is not a difficult one where it has the ability to unilaterally dictate what form the access will take. This case is six months old. One has but to look at the evidence of what access was made available over that time.

In this case, the society permits the mother to visit with the child once per week for a three-hour long visit, held at the society’s access visitation centre, and it fully supervises the entirety of the visits. [3] The society admits that this kind of access is not “ideal” but it believes that it is “sufficient to allow the mother and child to maintain their bond until such time as the protection issues have been addressed and the child can be returned”.

Moreover, the society states that “the mother’s issues do not require parenting knowledge which would need to be addressed by increased access”. [ 15 ] In terms of frequency and duration of access, the society’s decision seems to be based more on the minimum requirements for maintaining a bond between a parent and a child, than on a consideration of those circumstances set out in subsections 37(3) and (4) of the Act , as they apply to this mother and to this child.

If the society has taken these circumstances into consideration, it is not apparent from its evidence and certainly not from its submission on the issue of interim access. [ 16 ] The society’s evidence does not explain how it came to its “position” that one three hour visit once per week is sufficient for the mother and child as an interim access arrangement. Why three hours rather than only one hour, or six hours, or thirty hours per week?

If the society’s reason is that the mother and child are well bonded to each other, and this has come about with a three hour access visit per week, would not doubling, or tripling that frequency or duration or both ameliorate the mother-and-child bonding twofold, or threefold, or geometrically, and would that not be even in the better interests of the child? [ 17 ] This rhetorical question is, of course, very tongue-in-cheek as there is no evidentiary basis for any of the assumptions inherent in this question. This is equally true of the mother-and-child bonding. How does the court measure this bond?

More to the point, how does the society? And what is its belief that three hours per week access is sufficient to maintain the bond at whatever level it may be, other than an opinion, and a non-expert one at that? [ 18 ] What comes through the evidence of the society, and through the submissions of its counsel, is that the society’s general policy for parental access to children in society care is one three-hour visit per week. Unfortunately, the society does not set out in its evidence what is the factual basis for this policy.

Unless and until it does, the only inference that this court can make is that setting these parameters in any particular case is unilateral and arbitrary. Moreover, in absence of any connection, or at least some reasonable connection, between the amount of access permitted in a case by the society and those subsection 37(3) and subsection 37(4) considerations determined by the evidence to be relevant to that case, the court is unable to conclude that the access is in the best interests of the child. [ 19 ] This is where some common sense is needed.

There is a principle that has statutory endorsement from subsection 16(10) [4] of the federal Divorce Act , R.S.C. 1985 (2nd Supp.), c. 3, as amended, that is the principle of maximizing the time the child spends with each parent following parental separation and divorce. This “maximum contact” principle is not restricted to cases of

divorce between legally married parents. It applies equally, and has been judicially endorsed at the appellate level in Ontario, [5] in cases under the Ontario Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended. I see no reason to exclude the application of this principle in child protection cases where a child is separated from a parent, not necessarily because of a parental break-up, but because of the intervention of the state in the form of a children’s aid society that apprehends the child. From the child’s point of view, the impact of being separated from his or her parent is very personal.

The child does not appreciate the reasons, sometimes even the necessity, that underlie the separation through which he or she is going. What the child knows is that he or she was in contact with his or her primary caregiver 24/7 in an environment that was familiar to the child and, all of a sudden, that world changed almost completely. [ 20 ] From an adult prospective, there will always be a need for child protection legislation, and often a need for a child to be removed from its caregiver. Decisions for removal of children are made at various times.

Justices of the peace make such decisions when they issue apprehension warrants. Children’s aid societies make them when they apply for such warrants, and very clearly do so when they apprehend without a warrant. Child protection courts make such decisions when they make removal orders at temporary care and custody hearings. They also make them as final orders in child protection cases when they do not return the child to the person who had care and custody before the child was removed. [ 21 ] Whenever a child is apprehended, he or she is removed from a family. “Family” means much more than biological parent.

It encompasses all of the relationships that the child has as a result of being a member of his or her family. [6] It includes the child’s physical home, as well as all other environments with which the child has acquired familiarity and comfort. It also includes practices, routines, pastimes and activities that make up what the child does at his or her developmental stage of life. All these things are taken away from the child to a greater or lesser degree where apprehension by a society takes place.

In a word, the life of the child is disrupted. [ 22 ] The Child and Family Services Act authorizes these state-initiated disruptions in a child’s life from his or her family in the name of protecting the child from one or more harms, or risks of harm. These are not limitless; they are specifically set out in the statute as grounds for finding that a child is in need of protection. That finding is done by a child protection court. Moreover, it is to be done only on the basis of evidence accepted by the court. This judicial determination is not made on the first day that the case is before the court.

The sad reality is that this critical determination is not usually made until several months later, and increasingly, in many cases, only after a year or two, or perhaps even three, elapse. [ 23 ] The typical result for a child following apprehension is placement in a foster home with complete strangers while the child protection case wends its way through the court. There are three typical periods or phases involved in such placements. [ 24 ] The first is of relatively short duration. It is a period between apprehension and the day that the protection application is first before the child protection court.

By statutory requirement, this period cannot exceed five days. The second is longer. It starts at the first court appearance and continues until a temporary care and custody hearing has been held and where it has been judicially determined in whose temporary care and custody the child will be until the final resolution of the case. The third is following the final hearing in the case.

This is the disposition aspect of the proceeding where it may turn out that the child does not return to the parent from whose care the child was apprehended. [ 25 ] Not all apprehended children remain in the care of the society throughout all three stages. Some go back to their caregivers, usually with some precautions in place to address the protection concerns. Some go to other family members or “kin”. But some stay in the care of the society. In the present case, the child Realyn is in the second stage of this case and she is in the care of the society. That second stage started on 10 September 2010.

It has lasted five months already and it continues on. [ 26 ] Access is the primary mechanism that attempts to minimize the disruption for a child who has been apprehended and not returned to its normal caregiver. This means restoring contact by the child with persons and things that were significant, meaningful and beneficial for the child. [ 27 ] Apprehensions almost invariably propel issues of care and custody, placement and residency to the forefront of the proceeding. Access is relegated to secondary issue status, often contingent on the outcome of the placement issue.

Although understandable, this is rather unfortunate. The systemic and logistical realities of child protection litigation often delay even temporary placement decisions for months, and even, on rare occasions, for years. Every day that passes is a day that the apprehended child is not with his or her family. Access should rank equally with placement in importance if removal continues. It is arguable that, in the early days of the second stage, when the parties are generally not yet ready to argue temporary care and custody, access should be given prominence and priority as a consideration.

Access should not be an afterthought. Its importance should not be minimized. It should not be ordered without judicial consideration of the evidence, the best interests of the child, and what is appropriate having regard to the particular case before the court. [ 28 ] In the case of Realyn and her mother, Ms.

Shannon P., there are a number of considerations that are relevant to the kind of access that they should have to one another. [ 29 ] That there is admitted to be a mother-and-child bond already argues for a fostering and nourishment of that bond by the expansion of access. [ 30 ] The reasons underlying the apprehension and the protection concerns may impact on the kind of access that is appropriate. Here, parenting deficiencies are not a significant problem.

This suggests that longer periods of contact between mother and child may be appropriate. [ 31 ] The stage of a case is of some relevance to the type of access that may be appropriate. In this case, for example, there has been no finding that the child is in need of protection. At most, a judicial decision has been made preventing return of the child to the mother’s care and custody for the time being. This should not be construed in any way to favour limiting contact by way of access.

If anything, such a decision should prompt a consideration of what is the most expansive access that is consistent with adequate protection of the child.

[ 32 ] The child’s stage of development is equally if not more important in terms of what kind of access takes place. A scientific appreciation of the developmental stages of human growth is not essential to conclude that children of the age of Realyn form attachments to those persons who most frequently are nurturing them physically and emotionally. For a child in care of the society, that is done much more by foster parents than by biological parents. In this case, of 168 hours that make up each week, the mother gets only three to provide nurturance to Realyn; the foster parents have the rest.

Three hours a week is designed more to extinguish than to foster an existing parent-and-child relationship. Conversely, such a ratio is almost certain to create an attachment between the child and his or her foster parents, and the longer this temporary placement lasts, the stronger this attachment becomes. Is this desirable when the case is not yet about permanent separation? [ 33 ] The fact that both child and mother are native is another factor that promotes expansiveness rather than restrictiveness of maternal access.

The evidence indicates that the mother is still fairly strongly connected with her native heritage and culture. Maximizing contact with the mother through access is, in absence of any evidence that the child has some alternative exposure to native culture, heritage and traditions, an acceptable way to comply with the legislative direction found in subsection 37(4) . [7] [ 34 ] In

summary, Realyn’s contact with her mother should be considerably expanded from what it is at present. This means not only that access visits should be longer, but also that they should be more frequent. In fact, it is arguable that, if it were not possible to increase the total time for parental access, shorter, more frequent visits would be preferable in most cases. [ 35 ] There are also some reasons that militate in favour of imposing some restrictiveness on maternal access. The foremost is the mother’s lack of evidence as to her residence.

She evidently does not reside at the same place from which the child was apprehended. Although the preference would be to have access at a location that was familiar and comfortable for the child, that does not seem to be available here.

In absence of any concrete maternal plan or proposal as to where the mother’s access should take place, her access should continue at the society’s access facility subject to any mutually acceptable alternative location. [ 36 ] The mother’s problem with alcohol, her propensity for losing her temper and becoming violent argue for supervision of her contact with her daughter by a suitable access supervisor. However, that does not necessarily require that every visit be fully supervised. Nor is the access supervision restricted to a person acceptable to the society.

Ultimately, the court can approve someone to supervise the mother’s access even if that person does not meet the society’s approval. In this case, the mother had floated plans to reside with her father on Birch Island. She had also proposed a kin placement on Manitoulin Island. So did the father. Perhaps an acceptable access supervisor might have surfaced had such plans gone forward. Unfortunately, the mother changed her mind and decided to stay in Sault Ste. Marie.

The result, from an access point of view, is that the society is continuing to make decisions as to access supervision. [ 37 ] It almost goes without saying that the process of reintegration of an apprehended child with his or her family accelerates as the parent demonstrates that the protection concerns that prompted the apprehension have been reduced or eliminated. That process is not always all or nothing.

More often, the process is implemented by changes in parental access that involves increases in frequency and duration of access visits, coupled with loosening of restrictions such as supervision, or where access visits may take place. [ 38 ] It is an obligation of the society constantly to reassess the information that it has and to make adjustments in its position. This applies equally to parental access. Where the parent and the society do not agree, either can seek a court order.

However, it is up to them to satisfy the court of the appropriateness of their respective positions with admissible evidence. [ 39 ] In this case, the mother’s evidence is not very persuasive with respect to her having eliminated sources of protection concerns. She would have been much better off returning to Manitoulin where she has much better and more immediate family and band support. She has connected with some helping local agencies but has not provided evidence that demonstrates very much in terms of accomplishments.

Accordingly, a rapid acceleration in maternal access is not indicated at this time on the basis of what progress she has made. [ 40 ] My last comment has to do with the society’s evidence which makes a passing reference to the society’s “limited resources” as a reason for its policy decision on what it seems to have adopted as standard parental access. First, the court cannot take judicial notice that the society has “limited resources”, whatever that may mean.

Second, even if that were true, this does not necessarily require that this limitation must manifest itself in the reduction of access that is otherwise appropriate. Third, although this limited resource argument may fall within paragraph 37(3) ¶13 of the Act , simply stating that there are limited resources and that the society has adopted a policy position because of it, is not enough to justify what the position actually is. [ 41 ] My inclination is therefore to increase access in favour of the respondent mother. Her weekly access should involve at least three visits.

These will be on Monday, Wednesday and Friday unless the parties agree on three other days. The duration of visits will be not less than two hours each, with a preference for a duration of three hours per visit. The visits will take place at the access facility of the society unless the mother and the society agree on some alternative location. The society will continue to have the discretion to supervise all or any part of any maternal access visit. The other specific conditions of the existing maternal access order should also continue in effect as there has been no argument that these are inappropriate.

(3) Criteria.— 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 ).

(2) Custody during adjournment.— 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, (

i) a place of secure custody as defined in

Part IV (Youth Justice), or (ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

(10) Maximum contact.— In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

(4) Where child an Indian or native person.— Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity.