Children’s Aid Society of Algoma v. A.P., 2010 ONCJ 710

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. 95/2010 DATE: 2010·XII·09 CITATION: Children’s Aid Society of Algoma v. A.P. , 2010 ONCJ 710 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF ALGOMA, Applicant, — AND — A.P., G.P. and B.B., Respondents. Before Justice John Kukurin Heard on 9 December 2010 Reasons for Judgment released on 9 December 2010

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], subsection 1(1) , subsection 1(2) , subsection 37(3) , clause 51(2)( b ), clause 51(2) ( c ), clause 51(2)( d ), subsection 51(4) , subsection 51(5) ,

section 58 and subsection 58(1) . Jennifer A. Mealey ........................................................................ counsel for the applicant society T. Frederick Baxter .................................................... counsel for the respondents, A.P. and G… P. No appearance by or on behalf of the respondent, B.B., even though served with notice For previous proceedings, see Children’s Aid Society of Algoma v. A.P., G.P. and B.B. , 2010 ONCJ 705 , [2010] O.J. No. 5903 (Ont. C.J.), per Justice John Kukurin. [ 1 ] JUSTICE J. KUKURIN:— This is a decision on parental access.

On 10 November 2010, I released written reasons on a motion of the applicant society (at tab 2, volume 1) in which it was seeking an order for temporary care and custody of the two children in this child protection case, K. (age 6) and C. (age 3). The decision returned C. to the temporary care and custody of his mother. It kept K. in the temporary care and custody of the society. Until that decision was given, it was difficult for the parties to make totally meaningful submissions on the issue of access.

The decision, in fact, results in a greater complication with respect to parental access than if both children had remained in foster care. Accordingly, the motion of the society, which did include claims for orders for both maternal and paternal access, was further adjourned and was set for hearing on this day.

In the interim, while still awaiting the decision on temporary placement, the parents brought another motion (at tab 7, volume 3) for orders specifying the father’s telephone access with the child K. and specifying the father’s access with both K. and C.. [ 2 ] The evidence with respect to the issue of parental access is the same as was considered previously with the exception of two brief affidavits, one of each parent.

The most salient contents of these affidavits dealt with an incident that took place at a parental access visit with K. at a supervised access facility operated by the society, on or about 13 or 14 October 2010. During the course of a supervised access visit, K. was spanked by the father. [1] The society had already included this event in its previous evidence and had indicated that it had initiated an investigation and had temporarily suspended the father’s access.

It states that it . . . has verified that the father used excessive and inappropriate physical force with a child. [ 3 ] There has been no further evidence filed by the society. The parents both provide a narrative of this incident. They indicate that K., mistakenly interpreting that the access visit was ending, became excited and lost control. Attempts by the parent to use time outs were unsuccessful. K. started kicking and trying to bite the mother. The father held K. off, picked her up and carried her to a sofa getting kicked in the chest twice by K. while he was doing so.

He spanked her gently on the rear through clothing to get her attention and to enable her to snap out of it. Both the father and mother indicate that K.’s behaviour arose out of a perception that she would be forced to leave the visit. They both deny that the spank was abusive. The mother indicates that the father tried to bring K. back to herself in as gentle but firm a manner as possible.

The parents indicate that the society supervisors did not even see this incident. [ 4 ] The parents also indicate that, for several weeks even before this incident, they had not been receiving telephone access to Katie. [ 5 ] The access to Kaitlin is by way of an interim “without prejudice” order dated 10 May 2010 that provides for the parents to have reasonable interim access, including telephone access, supervised in the discretion of the society and at a location approved by the society.

It is also subject to a number of conditions, one of which is that the parents will not use any form of physical discipline or corporal punishment during access. The actual access that the parents are currently having is once per week on Thursdays from 4 p.m. to 7 p.m. at the supervised access centre operated by the society and fully supervised. Although not in the evidence specifically, the society concedes that, since the children were apprehended in May, they were being permitted access twice per week for three hours per visit. The reduction in frequency by half took place sometime around October.

It was apparently as a result of a change in the internal policy of the society with respect to access. It was a decision made in consultation with the case supervisor of this case. [ 6 ] The mother wishes access to K. two or three times per week in her home and wishes her access visits to be overnight. She would like either one weekday from after school to 9 a.m. the following day plus one overnight visit each weekend, possibly Saturday at 10 a.m. until Sunday at noon. She would also like to retain the present Thursday visits that she exercises jointly with the father.

She would like a provision for telephone access that is flexible. There does not appear to be any current problem with her ability to talk with K. by telephone. [ 7 ] With respect to K., the father wishes to have the Thursday 4 p.m. to 7 p.m. access that he jointly exercises with the mother to continue. In addition, he would like to have day access on weekends at the home of the mother. He suggests Saturdays from 2 p.m. to 10 p.m. and Sundays from 10 a.m. to 2 p.m. He proposes that his access be supervised by the mother or by the maternal grandmother who is residing in the mother’s home, or both of them.

In addition, he would like telephone access restored at a minimum of twice per week at reasonable times and for reasonable durations. [ 8 ] In addition, because of the imminent Christmas season, the mother and father would like K. to be at the mother’s home, with the father present, for eight hours on each of 24, 25 and 26 December, his access to be supervised by the mother or the maternal grandmother or both. [ 9 ] With respect to C., there is no issue as to maternal access as C. has returned to live in her care and custody. This is a

relatively recent development. There is no sworn evidence filed as to what access the father has been having with C.. It appears that he goes to the mother’s home fairly regularly and may spend as much as ten hours a day when he is there. Evidently, when he is there, he is having contact with C.. There do not appear to be any formal arrangements between him and the society as to when these visits take place. It seems like the society finds out about his being there only after the fact. There is no formal supervision by anyone from the society.

It appears that the society is not particularly worried about the safety of C. in the mother’s home, even with the father present for significant periods of time. The father seeks by way of an interim access order that he have access visits with C. four times per week for durations of up to twelve hours per visit at any time or times between 10 a.m. and 10 p.m. He is not averse to a provision that he be supervised by the mother or the maternal grandmother.

I must assume that one or two of these four weekly visits he requests will take place at the same time as when his requested access to K. takes place. [ 10 ] The society is totally opposed to any changes in the terms of the existing order. It prefers the more general, unspecific provisions arguing that these permit greater flexibility to make adjustments to the parameters of the actual access being exercised. Although there is some merit to having this flexibility, the problem is that the making of periodic adjustments to what, when, where and how access is exercised is decided unilaterally by the society.

In short, it can dictate all of these variables. One hopes that it sets these after consultation with the individuals involved in the access that is being arranged. These will include the parents who will be actually exercising the access, foster parents caring for the child, access supervisors, if there is access supervision, and custodial parents if the child is not in foster care. [ 11 ] One even fonder hope is that the actual access arrangements that are arrived at are determined by what is in the best interests of the child.

Although this is not strictly a statutory requirement for a society in setting access arrangements, failing to pay heed to best interests may lead to parental motions to restrict the power of the society in setting access parameters. Generally, this is sought by a court order that specifies the how, when and where of access, or at least prescribes minimum frequencies and durations, and fixes times and locations. Although this more specific access order may superficially appear to reduce or eliminate the flexibility of a more general access order, there are provisions that can be included to temper this effect.

For example, the order can include a provision permitting the parties to diverge from the specific terms ordered on their mutual consent. Failing that, the party that wants a change from what has been specifically ordered can bring a motion and ask the court to make a formal change to the terms, with, of course, the appropriate evidence and notice. If that takes some time to do, at least it is fair procedurally in that it takes everybody that same amount of time. [ 12 ] Access orders in child protection cases are all made under

section 58 [2] of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (“the Act”). This

section requires that such orders be made in the best interests of the child. This means that the court must take into considerations all of the circumstances listed in subsection 37(3) [3] of the Act in making its order. [ 13 ] In the present case, the court has the benefit of evidence covering six months of access under the terms of an access order that the society advocates should be continued.

The result of that order is that these parents had twice weekly access of three hours per visit, all supervised, at the supervised access facility of the society, until about a month ago, at which time it was reduced to once per week. There is no evidence of the reason for this reduction. In submissions of counsel, it appears that this reduction was not specific to this family. Rather it was a change in society policy with respect to access for families similar to this one.

The inference that I must necessarily draw is that the access of these parents to K. will continue at once per week for three hours supervised visitation. The question for the court to determine whether this is in the best interests of K.. Conversely, it must determine if what the parents propose is in K.’s best interests. [ 14 ] A starting point for access to a child who has been apprehended and is in the society’s temporary care and custody is subsection 51(5), [4] which permits such temporary care and custody order to contain provisions regarding any person’s right of access to the child.

That right can be specified by the court to be on such terms and conditions that the court considers appropriate. Although this seems to be fairly broad and unspecific guidance to the court, it is not subsection 51(4) of the Act that is the statutory authority for courts to make interim access orders. [5] Rather it is

section 58 . In applying

section 58 , the court has to consider the best interests of the child. Necessarily, it looks to the evidence to see whether any of the circumstances listed in subsection 37(3) exist and, if they do, it must consider these. Moreover, it must consider these in the context of access. And it is not simply whether to make a provision respecting a person’s access to a child. It must consider these also in deciding whether it will impose any terms or conditions in any access order it does make, in deciding what those will be, and deciding the appropriateness of those terms and conditions.

In this case, the determination of access to Kaitlin is not one simple determination. The society wants the same order for access to both parents. Each of the father and the mother wish to have an order for access. It is clear that these two parents are very different and there are different considerations that apply in determining the access order that is appropriate for Kaitlin with respect to each of them.

Also to be considered, even though no one has made a formal claim, is the access of K. to C. who is her sibling and with whom she had lived since his birth. [ 15 ] I see nothing wrong with maximizing the mother’s access to K. so long as it does not compromise her best interests, protection and well being. These are after all, the paramount purposes of child protection legislation. [6] There are secondary purposes [7] that are specified in the Act as well and these pervade the entire statute. I have already ruled that K. cannot return home to her mother’s care.

However, that does not mean that she can only have contact with her mother at a supervised access facility and that her visits can only be once per week for three hours only, and only in company of the father. The main reasons for the protection concerns for the children were the mother’s mental health problems, her physical health problems and the father — and not necessarily in that order.

With the father out of the home, with her mental health much improved as a result primarily of medication changes, with her physical health more on normal levels, and with the in-home hands-on assistance of, and emotional support of her mother, a very great deal of the source of risk of harm for K. has dissipated. It is K.’s own make up and the mother’s need to learn how to handle K.’s idiosyncratic behaviour that prevents K. from coming back to her mother’s full time care. I do not feel that K. will be unsafe with visits with her mother at her mother’s home.

K. will have the advantage of spending time with her brother and grandmother. The mother will be better able to learn how to properly parent K. if she spends more time with her. I cannot see what the society hopes to accomplish in terms of assisting the mother to learn proper coping and child management skills in a joint three-hour visit per week. [ 16 ] One practical problem with maternal access is that K. is in school and so, any access time is necessarily limited by this reality.

A second is that the father also wishes access time with K. which, if it materializes, further limits the time available for maternal

access. Finally, K. does live in a foster home with a foster family and she should be spending significant amounts of time there as well. It appears that this home is providing structure, stability and consistency that she badly needs if she is to behave more in accordance with expected norms. [ 17 ] In terms of paternal access, I have to acknowledge that the father is a “parent” of K. within the

definitions of the Act . However, he is not the biological parent. There is no provision in law that confers on a stepparent the custodial or access rights of a bio parent. In short, a settled intention by a parent to treat a non-biological child as a member of his family may give rise to child support obligations, but does not give rise to either custody rights or access rights simply by operation of law. Whatever the father in this case was exercising with respect to K., it was neither custodial nor access rights.

If he disciplined her, for example, it was because the mother, who was K.’s custodial parent, permitted him to do so. [ 18 ] This has some implications in terms of the determination of paternal access. First, this father has no entitlement to such access in law. He gains any entitlement by way of a court order. Should the court make such an order? A consideration of the best interests of K. under subsection 37(3) leads me to the conclusion that there is a much weaker case for ordering paternal access than for ordering maternal access.

The evidence leads me to conclude that it is the relationship of Kaitlin and her stepfather that is much more the problematic one. She does not have the same emotional ties to him that she does to her mother. She certainly does not have any biological or genetic ties to him. In terms of risk considerations, it is the father who presents the greater risk by far to K.’s physical and emotional development by his historical manner of coping with this child’s admittedly difficult behaviour. However, there are some ties that cannot be denied. He is the father of K.’s brother and the husband of her mother.

He is her psychological father in many respects. They do have a relationship that is not always a negative or problematic one. He provides for many of her needs as fathers do for their daughters. It would be inappropriate simply to cut off his access to her and her access to him. [ 19 ] However, it is not necessary or even desirable that the father’s access, at least on an interim basis, be extensive. The once-a-week access seems very minimal. Particularly when his access had been twice weekly for many months.

There was no argument that paternal access since May has been inappropriate or has created some problems for the child. The spanking incident in October is barely commented upon by the society and without any detail. The father and mother provide both detail and some explanation. It seems reasonable. It seems credible and trustworthy, especially with no response by the society.

I do not consider this incident particularly significant other than to infer that the father does not seem to understand that a condition of no physical discipline means no spanking, however gentle. [ 20 ] Accordingly, what I propose to do is to make an order for both paternal and maternal access, but they will be different. [ 21 ] The father should have access totalling not less than six hours per week in not less than two separate visits. All or any portion of these shall be supervised in the discretion of the society. The society can pick the location of these visits until further order.

The society can choose the access supervisor. The mother may accompany the father for his access visits. The particular days and time should be agreed upon having regard to the child’s schooling and other commitments, the father’s work

schedule and the convenience of the society and its access supervisors. It is not intended that the father’s access take place during any of the times that are provided for maternal access. In addition to actual visits, the father shall be entitled to telephone access with K., at reasonable times during the day, at least three times per week and for not more than ten minutes. These calls may be supervised by a society-approved person, including a foster parent. Preferably, these will take place at times when K. is in her foster home.

I consider such access as much less susceptible to problems (such as spanking) and more easily and quickly brought under control if behaviour should escalate unduly at either end (by hanging up). The regular contact, however, has the advantage of fostering the relationship that does exist. [ 22 ] The mother should have much more extensive access. She may continue to accompany the father for his access visits with K.. I see no problem with both parents participating in these minimum twice-per-week paternal access visits. The mother’s access visits should take place at her home.

I would expect that these would be progressively expanded in duration over time. My expectation is that these would start with shorter visits of two to three hours at the mother’s home and increasing after one month to about five hours, and thereafter to eight hours. I would not presently order, but would not be averse to overnight visits being implemented at any point on consent should maternal access progress satisfactorily. The society would have the discretion to supervise any portion or all of maternal access that it wishes with any access supervisor that it chooses.

I would simply order reasonable telephone access by the mother since this does not appear to be an area that presents any problems. I would order that the father would not be present during any maternal access visits and not participate in telephone access during any maternal access visits, including during any maternal telephone access. [ 23 ] As for C., I am at a bit of a loss as to what to order. It seems that the father is at the mother’s home quite a bit and spends time with C. regularly but not on any particular schedule.

It appears that the society does not supervise such contact and I am not even sure whether it wishes to have an order permitting it to do so. There does not seem to be any great protection concern with respect to C. from either his mother or his father. [ 24 ] In these circumstances, I would be inclined to simply order that the father have reasonable access to C. subject to supervision of any portion of such access by the society in its discretion, provided that the father will not be in the mother’s home on any day after 11 p.m. if the child is in the home.

This will permit the parents to spend overnights together if they wish, so long as there are no children around. [ 25 ] With respect to Christmas, I appreciate that this is a special time especially for children. I would be inclined to order maternal access to K. on each of 24, 25 and 26 December for six hours on each day. Regrettably, I would exclude the father from participating in an access visit in the mother’s home but would permit telephone access with K. during her visits on these days.

I would permit (and even encourage) the father to attend for a portion of any or all of these three days provided that an access supervisor acceptable to the society was available for the time he would be present. The particular hours of such Christmas visits I leave to the society and the mother to arrange. [ 26 ] As mentioned previously, I would also include a provision that, on mutual consent of the society and the parent to whom the access relates, any of the provisions in the order for maternal or paternal access can be adjusted or amended for any particular occasion of access.

No one has suggested that the lettered terms or conditions of the present “without prejudice” access order are

objectionable. Accordingly, they should be included as part of the terms of both maternal and paternal access orders. 58. Access order.—

(1) The court may, in the child’s best interests, (

a) when making an order under this Part; or (

b) upon an application under subsection (2) make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

(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 take into consideration those of the following circumstances of the case that he or she considers relevant: 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5.

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. 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. 7. The importance of continuity in the child’s care and possible effect on the child of disruption of that continuity. 8.

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’s remaining with or returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. 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. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13.

Any other relevant circumstance.

(5) Access.— 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. 1. Paramount purpose.—

(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2) Other purposes.— The additional purposes of this Act , so long as they are consistent with the best interests, protection and well being of children, are: 1. To recognize that, 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. 2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered. 3.

To recognize that children’s services should be provided in a manner that, i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children, iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate. . . .