Children’s Aid Society of Algoma v. K.S., 2019 ONCJ 716

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

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re 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) Prohibition re identifying person charged .— 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. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(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. ONTARIO COURT OF JUSTICE CITATION: Children’s Aid Society of Algoma v. K.S., 2019 ONCJ 716 DATE: 2019 - 08 - 19 COURT FILE No.: Sault Ste. Marie File No. 83/10-05 BETWEEN: CHILDREN’S AID SOCIETY OF ALGOMA Applicant, — AND — K.S. L.J.

MICHIPICOTEN FIRST NATION BAND REPRESENTATIVE Respondents Before Justice John Kukurin Heard on August 16, 2019 Reasons for Judgment released on August 19, 2019

Mr. J. Rossi .......................................................................... counsel for the applicant society Mr. S McCooeye ....................................................... counsel for the respondent father, L.J. Ms. J. Miller, Band Representative (Michipicoten F.N.) .......................... on her own behalf No appearance by or on behalf of the Respondent mother, K.S., even though served with notice Ms. L.

Marshall .......................................... counsel for the Office of the Children’s Lawyer, legal representative for the children KUKURIN J.: [ 1 ] This is a decision on a motion claim brought by the Respondent father in a Status Review Application with respect to his daughter, A., now age 13. A. is in temporary care of the society, and has been (and is presently) living in a society foster home for the past two years. The society’s claim in its Status Review Application is for crown wardship [now called “extended society care” (ESC)].

The society makes no mention in its status review application of any claim for access. The father has filed an Answer and Plan of Care. The mother has not. What This Motion is About [ 2 ] The child A., along with her brother, H., now age 11, were apprehended from the care of their father over two years ago This took place during the currency of a 12 month supervision order pursuant to which, they had been placed in his care and custody, subject to society supervision, and subject to a number of conditions.

They were apprehended, June 21, 2017, and on June 26, 2017, an interim “without prejudice” order was made placing them in the temporary care of the society. Contemporaneous with that order was an order for interim access to the father, also made without prejudice, which was rather generic in its wording. It gave the father reasonable interim access, to be arranged by him with the society, that was to be supervised in the discretion of the society by a person approved by the society.

It was also subject to a number of terms and conditions, all of which were essentially do’s or don’t’s directed at the father. [ 3 ] The father was not present when this order was made. In fact, he had not even been served with the society’s status review application. He was also not served with the society’s motion in which it sought an order for his interim access. In fact, he was not formally served until after mid-August 2017 when the society obtained an order for substitutional service on him by mail.

There is no indication if any hearing was actually held on the merits when the status review application or the society’s motion were first in court on the issue of the father’s interim access. For a certainty, the father had no evidence filed before that access order was made, so it was made on only the evidence filed by the society. [ 4 ] The father did not really participate in the status review proceeding for several months. Nor did he see any of the children. By the fall of 2017, he seems to have finally woken up to the reality of the situation, and sought to file an Answer.

He was unrepresented by any counsel and was told he needed to bring a motion to get court permission before he could file an Answer. He did so, and was given permission in mid November 2017, over five months after the status review was commenced.

He did file an Answer, but it is in the wrong form, and technically, is not an Answer and Plan of Care in the form required to be filed in proceedings such as this one. [ 5 ] While the father was doing whatever he was doing for these five months, the court made an order on September 27, 2017 which removed the “without prejudice” qualification from his interim access order. Other than that, the order was identical to the “without prejudice” order. There is no indication that any hearing was held prior to the removal of the “without prejudice” qualification.

It does not appear that the father made any submissions to the court, or that he was even present. [ 6 ] This interim paternal access order is the order that has persisted in place since June 26, 2017. The father and the society did not “arrange” any access terms. The society says he was never around to do so, or was not willing to engage with the society child protection worker, Ms. Thorburn, despite many efforts by her to get him to do so. It is this order that the father is seeking in his motion at Tab 13, Vol 8 to vary.

He wishes his interim access to his daughter A. to be increased and to be specified by the court in terms of times, frequency, duration, location and level of supervision that his access to her is to take. [1] [ 7 ] It is of some technical interest that the society’s status review application makes no mention of paternal access as one of its formal claims. This begs the question of by what authority did the society bring a claim before the court in June 2017 for a temporary order for paternal access. Such claims are usually set out in a motion filed contemporaneously with the status review application.

And the society did file such motion (at Tab 2, Vol 6) in which it sought a temporary order for paternal access. Motions for temporary orders are governed by Rule 14 of the Family Law Rules: Rule 14.

(1) A person who wants any of the following may make a motion: 1. A temporary order for a claim made in an application. 2. Directions on how to carry on the case. 3. A change in a temporary order. O. Reg. 114/99, r. 14 (1) ; O. Reg. 544/99, s. 6 The society sought (and obtained) by motion , a temporary order for paternal access, a claim which it did not make in its status review application.

[ 8 ] What were the parameters of the father’s temporary access to A.? It would take voluminous reading through the society’s materials as no one seemed to have this information readily at hand. However, the father says in his affidavit filed on the variation motion, that his present access is for five hours every second Sunday, and is generally unsupervised.

How this came about is in the realms of speculation, but it is not an unreasonable inference that it was established by the society unilaterally, acquiesced to by the father, and represents what the society feels meets the father’s access needs, but more so the daughter’s paternal access needs. The society indicates that, on occasion, it has bent somewhat to accommodate the father’s request for a longer access visit with A. [ 9 ] The onus on the access variation claim is on the father as motion applicant. The evidence on motion is by affidavit unless the court permits other means.

The society, in its argument, maintains that the father must show that a material change in circumstances has occurred since the order was made, before the court can vary his interim access. The father argues that there have been material changes in circumstances. OCL counsel say little about this as a pre-requisite. Material Change in Circumstances [ 10 ] It is best to go back to basics. The Children’s Law Reform Act (the CLRA) requires that a material change in circumstances be demonstrated to the satisfaction of the court before the court can vary an access order.

CLRA S.29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29 . [ 11 ] However, the access order that is sought to be varied, and the motion of the father are not under the CLRA, but rather under the Child, Youth and Family Services Act (the CYFSA).

There is no statutory provision that expressly permits the importing of a CLRA requirement into the CYFSA in the area of “access” [ 12 ] The status review application of the society is brought under s.113 of the CYFSA. This

section of the CYFSA permits the society to apply to review the status of a child like A., at any time. As to what happens to the child when the society elects to do so, this is governed by s.113(8) CYFSA. CYFSA S 113 (8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody [ 13 ] This subsection say nothing about any access order. And there is no provision in the following

section of the CYFSA that deal with access to a child. However, there is a

section of the CYFSA that deals specifically with access to, or by, a child. That is s.104 CYFSA. CYFSA S. 104 (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. [ 14 ] Any claim for an order for access, or for variation of access, in a child protection proceeding or a status review proceeding has necessarily to be brought under s.104 CYFSA. [ 15 ] This subsection, and the following subsections in s.104 CYFSA say nothing about any requirement that a motion applicant seeking to vary an access order must demonstrate any material change in circumstances.

In fact, the only criterion that is apparent from s.104, whether the court is making, varying or terminating an access order, is that the order that the court makes is one that is in the best interests of the child. [ 16 ] Notwithstanding this plain reading, some jurists have imported the “material change” pre-requisite into access hearings under the CYFSA. Their reasoning seems logical, even if not in accordance with the statute, when the claim is one for variation. This thinking can be summarized as follows: 1.

The existing order is one that was made in the best interests of the child based circumstances that the evidence showed existed when it was made. 2. There is (somewhat more than) a presumption that it remains an access order that is still in the best interests of the child. 3. To change that order, the person seeking the change must show that the circumstances have changed from when the order was made, and have changed sufficiently (i.e. a material change) to warrant the court varying the previous order. 4.

The change in access, if made, must still be a change that is in the best interests of the child. [ 17 ] There are any number of court decisions that have imported this material change requirement in dealing with variation of access claims. There are others that have not, and have stated that a material change in circumstances is not a pre-requisite for variation of access. A good review of this still controversial area of the law is found in the decision of Justice Sherr in Catholic Children's Aid

Society of Toronto v. R.M. [2017] O.J. No. 6004, 2017 ONCJ 784 , at paragraphs [41] to [52] , but ultimately he concludes at paragraph [80] “ …. if the level of access is in dispute, the court should be receptive to access change motions. The goal should be to gradually increase a parent's access. Material change or compelling evidence that is necessary for the child to make the change should generally not be required. The Act is remedial legislation.

It would be contrary to the purpose of the Act to construct a legal test to change access that is too onerous for parents to meet, discourages them from moving to court to increase their access with the child and sets up more families to fail.” [ 18 ] This decision has not been appealed. Justice Sherr sets out what he views as the legal test for access variation when a child protection case is adjourned [at paragraph 85] “

a) The moving party has the onus of establishing that a sufficient change in circumstances has taken place since the making of the last court order. Whether the change is sufficient to change the order will depend on the circumstances of the case.

b) The court should conduct a contextual analysis when exercising its discretion as to whether it is in a child's best interests to change the access order, and if so, what terms and conditions are appropriate. The purposes in

section 1 of the Act should always be at the forefront of the analysis. The suggested non-exhaustive list of factors set out in para-graph 83 above should be considered, where relevant.” [ 19 ] I am in the camp of those jurists who do not hold that a material change in circumstances is a pre-requisite for variation of an existing access order in child protection cases.

However, I do believe that the motion applicant has to show that some “significant” change has taken place and further, that the variation order sought is in the child’s best interests at the time of the variation hearing. [2] Changes Since the Existing Access Order Was Made [ 20 ] My view is that the changes in circumstances since the existing order was made have, in fact, been “material”, in any event, in this case. One might say that the existing paternal access order was made by Dunn J. on September 27, 2017.

That may be a literal conclusion, and is the only point on which I depart from Justice Sherr’s legal test (see paragraph (

a) of his test above). Since it was essentially the same order that was made by Justice Condon on June 26, 2017 (except for the “without prejudice” qualification), I consider the circumstances that existed on June 26, 2017 as the starting point of the existing order. What were the circumstances then? [3] [ 21 ] The children had just been apprehended. The father had basically disappeared or was hiding his head in the sand. The circumstances of the family were so dire that the society obtained an apprehension warrant to remove these children from their father.

The mother had some time earlier left the father and the children and went to Alberta, but she had come back and had brought with her all of her baggage, which included a serious substance abuse problem, a poor relationship with the father, and a totally unsatisfactory history of parenting the three children. The father was a single parent and trying to cope not only with keeping his job, but also dealing with the mother’s return to town, his care of his three children who were even then identified as having high needs, and dealing with the society which had a supervision order that it was exercising.

There was also some mention that the father was grieving the death of a relative at about that time. I gather he was overwhelmed and simply could not cope. [ 22 ] If we fast forward to today, there are many changes that are apparent: • The father no longer has his head in the sand. He is actively participating in this case. He has a lawyer. He is not doing it all himself. He has his parents (Mr. and Mrs. R.) who have become very supportive, are approved as kin placements by the society, and are affording him their home as a location to exercise access.

He has reached out to the Indian Friendship Centre locally, although what assistance it has provided to him is a question mark. He has made contact with his First Nation band, albeit with some communication difficulty. I believe he also has obtained some help from the local Metis association. He still has a job but is currently unemployed and expects a call to return to work next month. He is in the process of renovating and/or repairing his home.

He has formed a new relationship with another woman, who has been supportive and involved in his family issues, and there are some prospects that they may cohabit in the future. His oldest child J., age 16, has been living with him, and not only attends school but also holds down a part time job. The society has terminated its child protection efforts with respect to J., thereby implicitly acknowledging that the father is able to parent him adequately, something that it was not prepared to do in June 2017.

In short, the father has made considerable progress since the children were apprehended. • The mother is no longer in the family picture. She is not participating in this case and seems to have abandoned both the father and the children. The father claims his relationship with her is over and he has not seen her for over a year. She is no longer a complication in his life, something that she most certainly was according to the evidence of the society in June 2017.

She is one less thorn in the father’s side now, and this in itself represents a very significant change in circumstances. • As the single parent, working father of three high needs children, the father had his work cut out for him as their primary caregiver and custodian in June 2017. That is not the case today. The oldest son J. is apparently almost self sufficient, or at least is not a significant burden on the father. In fact, the evidence is that J. is a help in the father’s family rather than a hindrance or a burden. The child H. is not in the father’s care.

He had, and may still have, problems which made him a high needs child. But he has been in foster care now for two years and has received the benefit of a stable foster placement and services geared to address his problems provided by the society. In fact, the society has just consented to an order that H. live in the care and custody of his paternal grandparents, so he is no longer in society care and the father is content with this interim resolution. So the care of H. is no longer a factor that the father has to deal with within the confines of his own home.

The father has gravitated from a three child care and custody parent to a one child parent, and the one child, J., is not a problem child.

• With respect to A., she was then a pre-teen. She had fairly serious behavioural and developmental problems including encopresis.She was a handful at home, and at her school, and the father was failing in attending to her needs. She missed a lot of school, as did herbrother H., and was doing poorly academically. The society has since filed two very lengthy and comprehensive affidavits of affiantswho were retained by the society to treat, and are still are involved with treating A. It is clear that the father could not do for A. what thesociety has accomplished in the two years past.

A. was clearly a child in considerable trouble, if not distress, when she was removedfrom her father’s care. She has made considerable progress since then with the professional help the society was able to arrange for her,and the therapeutic foster care placement in which she has resided. A. is two years older now, and her life in these two year’s have madeher more mature than she was in 2017. Moreover, for purposes of this access variation motion, she is not at present the burden she wasfor the father in 2017. He is not her caregiver and custodian today.

Most importantly, she is now able to, and has through her legalcounsel, expressed her views and wishes, and those are, with respect to paternal access, to spend more time with her father. The Best Interest Test for varying Access [23] I conclude that there has been a change in circumstances sufficient to warrant a change to the order, whether it is a “material”change or not. However, the father still has the onus of satisfying the court that the change of access that he is seeking is the appropriatechange that is in the child’s best interests.

The CYFSA provides a list of considerations that, to the extent that they are applicable in thedetermination the court is asked to make, the court is mandated to consider them. The father, through his counsel, has reviewed the factsin the light of these considerations, more favorably to him, than unfavorably. [24] The foremost consideration is the views and wishes of the child A. Normally, I would be reluctant to hear these views andwishes articulated by OCL counsel from counsel table. This is not permissible. See Strobridge v. Strobridge (ON CA),[1994] O.J.

No. 1247, 18 O.R. (3d) 753, 115 D.L.R. (4th) 489, 72 O.A.C. 379, 4 R.F.L. (4th) 169 where the Ontario Court of Appealstated at paragraph [36]: “In my view, counsel is not entitled to express his or her personal opinion on any issue, including the children's best interests. Nor iscounsel entitled to become a witness and advise the court what the children's access-related preferences are.[4] [25] There is sufficient case authority to receive a child’s views and wishes through the legal representative of such child providedthat all parties in the case agree. They did so in the present case.

And OCL counsel made it quite clear that A. wanted to spend more timewith her father in the context of an access visits. In fact, OCL counsel reviewed the father’s motion and his affidavit, and so A. wasaware of exactly what the father was seeking by way of variation. The court has to give substantial weight to the views and wishes of a13 year old child, especially one that has legal representation.

And I do accord considerable weight to A.’s wishes. [26] For a number of other reasons tied to the mandatory considerations in s. 74(3) CYFSA dealing with best interests, I find thatthose below mostly favour the variation of access sough by the father. • Firstly, the child is a First Nation child and so is her father and her brothers. Her First Nation heritage is a factor, not unlike herviews and wishes, that the legislative changes brought by the CYFSA clearly have emphasized as being important to the court whendealing with children.

As far as I can determine, A.’s foster family is not First Nation or indigenous at all. • The importance to A. of developing a positive relationship and emotional ties with her father and her brothers would be enhanced ifshe spent more time with them.

The fact that this is of importance to her is that she has articulated to her legal counsel that she wants tospend more time with her father (and, in fact, wants to live with him which also includes living with her older brother.) • More and enhanced access would promote A.’s positive relationship with her father, and through him with her brothers, and wouldpromote for her a more secure place in her family, even if she did not cohabit with any of her family members. • The greater the access A. has to her father, the more this might advance his plan for her eventual return to his care.

Granted that thesociety has other plans for A., but those plans, so far as is known, involve adoption which is not, on the present evidence, with anyidentified prospective adoption applicants. The father’s plan has more merit if only that the details of his plan are more known. • The degree of risk that justified the finding that A. was a child in need of protection was so far back in history that it has littlerelevance today.

However, whatever risk exists today, for access purposes, is clearly much abated from what it was in June 2017. [27] Although not listed in s.74(3) CYFSA, I have also included in my consideration of factors to be canvassed, the desirability ofmaximizing the time that a parent and child have together in an access context. Other jurists have also taken this into account whenconsidering access. Five hours every two weeks can hardly be seen by any reasonable person as “maximizing” father-child access.

Andas stated by Justice Sherr in R.M., supra, at paragraphs [76], [77], [79] and [80]: “ …if a child is apprehended from a parent, the process of reunification, if done properly, often takes some time. … It is imperative inthis process that the initial access order not stay frozen until trial, unless it would be unsafe for the child to change it. … In aconstructive child protection case, access is constantly being re-evaluated. Where it can safely be done, access should be graduallyincreased…. The goal should be to gradually increase a parent's access.

Material change or compelling evidence that is necessary forthe child to make the change should generally not be required.” [28] The society, takes a very different view, not only on the re-unification of A. with her father, but for the purposes of this accessvariation motion, of A.’s best interests. For the most part, it does not directly respond to the above considerations and the factualcircumstances that apply to them. Rather it asks the court to look at the overall picture. That picture portrays a father who wascompletely inept as a caregiver and custodian when he had the children.

His supervision of them was questionable, often delinquent. Hehad no insight into the difficulties that his children were experiencing, and if he did, he did not admit that they existed or had anyvalidity, and did virtually nothing to remedy them. He had a poor rapport with the society workers, and was avoidant rather than co-operative. The argument on access variation is that the father has not changed. He has not one shred of evidence that he has done

anything to educate himself, or to better himself as a parent. [ 29 ] Moreover, and specifically with respect to A., she is still a vulnerable child, and although better able to cope than she was two years ago, she still has high needs and requires stability, security, and routine that she is getting through her foster care placement and through professional treatment. I accept that this is true and the father has not offered much in his evidence that he has addressed this concern. [ 30 ] But this court is not dealing today with a return of A. to the father’s care and custody.

It is merely considering the access between them and whether it should be varied from what it is. A. will still be in the same foster home. She will still be the recipient of whatever treatment or therapy her providers feel is necessary for her. The father in not even seeking overnight access to her. [ 31 ] While the society’s concerns about the father may be legitimate, they are more relevant to the question of where A. will reside when the Status Review case is concluded. This court is not there yet. They are of lesser relevance to the question of access in the meantime.

I have no evidence that expanded access between the father and the daughter will derail the progress made with her to date. If this is what the society is saying, it has not pointed out in its evidence where this is stated, or by whom. Conclusion [ 32 ] I conclude that the father has met the onus, on the balance of probabilities, of persuading the court that some variation should be made. However, the father’s current circumstances and that of his family are somewhat in a state of flux. He has a home that is being renovated and is unsuitable a location to exercise access.

He proposes to exercise access at his parents’ home. They have just had a new member in their household, namely, H. the brother of A. How he fits in remains to be seen. The father’s home renovations will not go on forever. Eventually they will end and the father will no doubt wish his access with A. to take place there. That is where her older brother J. resides. She has not lived with him for some time and I am not sure if she has even seen him during her 5 hour - per - 2 week access visits.

Moreover, the father’s evidence introduces his new girlfriend who may or may not also move in to reside with him in his home. Superimposed over all of this unsettled set of potentially changing circumstances are the availabilities of A. and the father: A. because she is a student, has commitments and other relationships already in her life, and is age 13; the father because he has a job to which he expects to be called back, and within less than a month, at which he will be at work on a

schedule that is not known at present. [ 33 ] Given these difficulties, and exercising some caution, I am of the view that A. should be able to see her father weekly, not biweekly. Sunday seems to be suitable from the evidence and if a particular Sunday is not, that week’s access can be changed to Saturday. If A. is away, as she is presently at a summer camp, the access will simply not take place, but I assume that some substitute time can be found The duration of five hours per visit seems reasonable.

There was some mention that lengthy access visits sometimes were boring for A., and everyone was watching television or a tablet. If I am wrong, I can entertain arguments for a longer or shorter duration. [ 34 ] For the time being, the father and daughter access shall all take place at the home of the paternal grandparents with the proviso that the grandparents agree to this.

It may also take place elsewhere in the community but only subject to the society being advised well in advance of the itinerary, location and any other details of such access and gives its consent. [ 35 ] With respect to supervision of the access visits between A. and her father, I leave that to the society. It may supervise any part of or all of this access.

So, clearly, it must be informed and be involved in the matter of when access is planned to take place. [ 36 ] I see no reason why A. cannot communicate with her father by telephone (or by text or other digital messaging) whenever she wants to subject to it being at reasonable times and for reasonable lengths of time. Nor do I see anything improper in her speaking to her brothers while she is on the phone.

However, it is A. on whom shall be placed the responsibility to make telephone calls to her father. [ 37 ] As for the father’s claim for information from service providers to A., this is a matter that may involve privacy issues, and I am only inclined to make an order that the father is to be informed by the society of the details of what appointments are forthcoming for A. [ 38 ] Courts are not concerned with the minutiae of access. They have no time to do this.

The society and the father both have counsel and should be able to not only construct an order that will be mutually acceptable based on the foregoing, but should also workout any wrinkles that I may have overlooked. If they cannot, I can be approached to assist. Released: August 19, 2019 Signed: Justice John Kukurin