Children’s Aid Society of Algoma v. S.C., 2011 ONCJ 82

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. 31/2007 DATE: 2011·I·11 CITATION: Children’s Aid Society of Algoma v. S.C. , 2011 ONCJ 82 ONTARIO COURT OF JUSTICE BETWEEN: CHLDREN’S AID SOCIETY OF ALGOMA, Applicant, — AND — S.C., M. V. and KIVALLIQ INUIT ASSOCIATION Respondents. Before Justice John Kukurin Heard on 19 November 2010 Reasons for Judgment released on 11 January 2011

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) , subsection 37(4) , paragraph 57(1) ¶1, subsection 58(1) , subsection 59(1) ,

section 64 , subsection 65(1) and clause 65(1)( c ). Jennifer A. Mealey ........................................................................ counsel for the applicant society T. Frederick Baxter ........................................................... counsel for the respondent mother, S.C. No appearance by or on behalf of the respondent father, M.V. (deceased) No appearance by or on behalf of Kivalliq Inuit Association, even though served with notice For previous proceedings, see: • order of interim care and custody with mother under society supervision: Children’s Aid Society of Algoma v.

S.C. and M.V.. , 2007 ONCJ 740 , 192 A.C.W.S. (3d) 499, [2007] O.J. No. 5747, 2007 Cars​well​Ont 10066 (Ont. C.J.), per Justice John Kukurin; and • order of care and custody with paternal grandparents under society supervision: Children’s Aid Society of Algoma v. S.C., M.V. and Kivalliq Inuit Association , 2010 ONCJ 370 , 192 A.C.W.S. (3d) 853, [2010] O.J. No. 3739, 2010 Cars​well​Ont 6515 (Ont. C.J.), per Justice John Kukurin. [ 1 ] JUSTICE J.

KUKURIN:— A final order was made on 22 September 2010 placing the children N.V. and Z.V. with their paternal grandparents subject to a supervision order in favour of the applicant society for a period of one year. Written reasons for this decision were released on 10 August 2010. That decision followed a seven-day trial in which the main issue had been one of disposition; namely, whether these two children should be placed in the care and custody of their mother, Ms. S.C., or of their paternal grandparents. [ 2 ] The present decision is with respect to maternal access.

At the conclusion of the trial, neither the society nor the mother knew what placement would be ordered by the court. As a result, their evidence and arguments relating to maternal access were not comprehensively presented. Moreover, there had been some fairly significant changes that had been implemented by the society in connection the mother’s access. Also, there were some prospective changes in the circumstances of the mother at that time.

I felt that additional evidence and argument were warranted prior to a final order being made with respect to maternal access. [1] [ 3 ] Additional evidence has now been filed. This consists of affidavit evidence only. The affiants were not cross-examined as the parties waived any right to cross-examination. There were five affidavits; four filed on behalf of the mother and one on behalf of the society. [2] I heard arguments of counsel on 19 November 2010.

The basis for my decision on maternal access is set out in these additional reasons. [ 4 ] In the case of maternal access with respect to both N.V. and Z.V., one arrives [3] eventually at subsection 59(1) [4] the Child and Family Services Act , R.S.O. 1990, c.

C-11, as amended (the Act”), which requires the court to make an order for access in favour of the person who had charge of the child prior to the society’s intervention, unless the court is satisfied that continued contact with him or her would not be in the child’s best interest. [ 5 ] No one is suggesting that there should not be an order for access by Ms. S.C. to N.V. and Z.V. The real issue is what the terms of that access order should be.

A more fundamental issue relates to the criteria that the court should apply in setting the terms of this maternal access order. [ 6 ] Access terms in child protection orders are seldom problem free. This holds true in the present case. Perhaps the articulation of the access terms that each of the society and the mother is seeking is a good starting point for the reason for my decision on this issue. [ 7 ] The society wishes the maternal access order to have virtually the same terms as those in the order that has been in effect to date. Those terms provide that the mother, Ms. S.C.’s, access: (

a) will be reasonable access; (

b) will be on reasonable notice (presumably to the society); (

c) will be supervised, in the discretion of the society; (

d) will be supervised by a society-approved person; (

e) will be at a location approved by the society; (

f) will be arranged by the mother with the society; and (

g) will be subject to an additional ten or so conditions, most of which are “thou shalt not” prohibitions on the mother during access visits. [ 8 ] The actual current maternal access takes place each Sunday for six hours from 9 a.m. to 3 p.m. The children are brought from the paternal grandparents home in Thessalon (one hour distant by car) to the society’s supervised access centre in Sault Ste. Marie on Pilgrim Street. The mother’s access is fully supervised during these six-hour-long visits, by society-employed supervised access workers.

It is possible that other persons may attend at some of these access visits, but likely not on any regular basis. [5] [ 9 ] The access order that the mother wants would not take place in the society’s supervised access centre. Rather, she proposes that access visits take place at the home of her mother. Alternatively, her second choice is at her own apartment, although it is

much less roomy. Both she and her mother reside in Sault Ste. Marie. She questions the need for supervision of any of her access. However, if it must be supervised, she proposes that her mother, Connie, is a suitable access supervisor. In addition, she proffers Mr. A.W., the biological father of her third child, S., as an acceptable supervisor for her access to N.V. and Z.V.. She also sets forth her cousin Shauna, as a person that is more than competent to supervise her access visits. [ 10 ] Ms. S.C. does not wish her access visits limited to six hours per week, or to take place only on one day each week.

With N.V. now in school, Ms. S.C. is suggesting weekend visits from Saturday morning to late Sunday afternoon, initially once per month and expanding over time to bi-weekly visits, or perhaps more frequently. She wishes to have her infant child S. present at some of these visits so that he can interact with and form relationships with his half-siblings. She does not seem to object to the several prohibitory conditions in the current order. She does not wish to exercise access at the home of, or in the presence of, the paternal grandparents. She has made no submissions on transportation for access.

Presumably, she expects the society or the paternal grandparents to transport the children. [ 11 ] There is a significant disparity between what the society and the mother contemplate are suitable terms of a maternal access order. Surprisingly, neither side tendered much argument in terms of the considerations relevant to deciding how maternal access is to be structured. Equally surprising is the scarcity of evidence on either side that supports what is being sought. [ 12 ] Any access order made under

Part III of the Act must necessarily be made under the authority provided to the court in subsection 58(1). [6] That subsection is very clear in requiring that the access order made must be in the best interests of the child.

Where the court is directed to make an order or determination in the best interests of the child, it must take into account those circumstances (to the extent that they apply in the case) set out in subsection 37(3). [7] In addition, where the particular child involved is an Indian or native child, the court has also to take into account some additional considerations related to native culture, heritage and tradition, with a view to recognizing the importance of preserving the child’s cultural identity. [8] [ 13 ] Although these potentially numerous circumstances are spelled out in the statute in general terms, the facts of a particular case will generally determine which are of relevance to that case. [ 14 ] The fact that these sets of circumstances may be more applicable, and more germane to, a placement decision does not mean that they are any less mandatory as judicial considerations in making access decisions. [ 15 ] There is no dispute that there should be maternal access.

Everyone agrees that, in this case, that access should be by way of court order. The Act makes an access order mandatory for a pre-intervention caregiver unless continued contact between such person and the child would not be in the child’s best interest. There is no such argument made here. [ 16 ] The logical question to ask, at least rhetorically, is: “What is the purpose of this access?” Close on the heels of this first query is the second: “What is the purpose of the terms or conditions of the access order that is to be made?” [ 17 ] There is a hierarchy in the protection orders that the court can make.

At the top end of intrusiveness is the order for Crown wardship. This order ordinarily expects a permanent severance of the child with his or her normal caregiver. The Act contemplates that the child will be raised by a new “family”, either an adoptive family, or a long-term foster family, or an institutional family. There is a prohibition against making an access order with respect to a child who is made a ward of the Crown. However, this prohibition is not absolute. There are exceptions.

Access orders can be made where the court is satisfied that it is beneficial and meaningful for the child to have such access and that an access order will not impair the child’s opportunities for adoption. [ 18 ] Lower on the scale of potential protection orders are the temporary wardship order, and the supervision order, neither of which can exceed 12 months in duration. Under the latter, that is, the supervision order, the placement can be with the pre-intervention caregiver, or it can be with someone else.

If with someone else, the pre-intervention caregiver’s relationship with the child continues through access visits. This is equally true in temporary wardship situations. Where either of these two orders is made, the Act requires an access order to be made in favour of the pre-intervention caregiver (except where it finds it is not in the child’s best interest to do so).

Why this 180-degree change with respect to access from the situation where the child is made a Crown ward? [ 19 ] My conclusion is that, implicit in this requirement to order access is the (rebuttable) presumption that it is both beneficial and meaningful for the child to have such access.

I also conclude from the statutorily time limited nature of such orders, that the statute contemplates that some change will take place over the duration of the order so that a different order (or no further order) will be made on expiry. [ 20 ] To use the present case as a concrete example, the continuation of maternal access with N.V. and Z.V. during their current 12-month placement with the paternal grandparents is meant to foster the maternal-filial relationship, with a view to reuniting this family as soon as it is possible to do so.

The society’s plan of care does not contemplate that these children will never return to their mother’s care. [ 21 ] I do not see the objective of the Act as having a series of temporary child protection orders that will continue the society’s involvement in a supervisory capacity until the child reaches the age of majority. The aim should be to reunite the child with his or her family as soon as protection concerns abate sufficiently to permit such reintegration.

If they do not do so within a reasonable time, then there should be some movement to other resolutions for long-term care or permanency. [9] [ 22 ] Nor do I see access by a child to a pre-intervention caregiver, or to any “parent” as a static mechanism to simply keep the relationship on life support. Moreover, it is not intended that supervision of access will continue indefinitely.

In short, there has to be some change over time, usually in the direction of an eventual reintegration of the child with the former caregiver. [ 23 ] In terms of the evidence relating to location of maternal access, there are allegations made by the mother, supported by at least one witness, that the society’s Pilgrim Street access facilities are cramped, crowded, rundown, dirty, not well maintained, not attractive, with safety issues; a location where it is difficult to prepare any meals or snacks. The society does not deny any of these allegations. It does not even address them.

The mother proposes a three-bedroom home with allegedly plenty of room to accommodate

maternal access visits. This is the family home, occupied by at least one blood relative of the children, their maternal grandmother, as opposed to an institutional building servicing multiple families, sometimes simultaneously. The society makes no comment on the appropriateness of the grandparental home itself. Based on the evidence, I see no reason why access must be restricted to the society’s access centre. Some, if not all, can take place at the maternal grandmother’s home. [ 24 ] I do not have sufficient evidence to either approve or disapprove of the mother’s apartment as a venue for maternal access.

Its smallness seems not to be in dispute and, perhaps pending further evidence, it should be excluded as a location for exercising maternal access on any regular basis. I seem to recall that some access may have taken place there in the past. It may be suitable as an alternative or as a backup location. [ 25 ] In terms of supervision of the mother’s access, it is evident that the society has exercised its discretion to fully supervise all of the mother’s access, and has restricted its access supervisors to its own personnel.

First, I would approve the mother’s cousin, Shauna, as an access supervisor, based on the evidence at trial, provided that she consents to act in this capacity. The difficulty with Shauna is the limitation on her availability, and her (likely) unwillingness to attend any access at the maternal grandmother’s home. She can supervise the mother’s access elsewhere, provided it is a suitable location. By this, I mean acceptable to the society and to the mother, or in the event of disagreement, acceptable to the court. [10] [ 26 ] I would not accept Mr. A.W. as access supervisor for the mother’s access at this time .

My main reason is that I know very little about him, in a factual sense, in relation to his suitability to act as an access supervisor for this mother and her two older children. My ignorance is of both positives and negatives about him. The mother is putting him forward as her candidate for this role. It is her onus to satisfy the court that he is a suitable person to entrust with this responsibility. [ 27 ] The maternal grandmother, Connie, is more difficult to gauge as to her suitability to be an access supervisor for the mother with the children N.V. and Z.V.

The society has rather dated historical evidence that deals more with her parenting of her own children, than with her ability to supervise a mother’s access to two young children in 2011. All of the society’s evidence is hearsay, the source of which is almost invariably “society records”. The maternal grandmother, who has sworn an affidavit filed in this case, does not seem to dispute most of these historical allegations. [ 28 ] Another major concern about the maternal grandmother is the apparent problems in her relationship with the mother and in her relationship with Shauna.

These surfaced in the testimony during the trial. However, the more recent evidence, mainly from the grandmother and the mother, is that they are now on very good terms and that the mother has spent a great deal of time at the grandmother’s home, especially in the last trimester of her pregnancy with S.. There is also evidence that the grandmother is very supportive of the mother and very willing to accommodate and, if needed, to supervise the mother’s access in her home, including overnight visits.

The grandmother has the endorsement of the B[…] Band, of which she is a registered band member, and of her pastor at her church. She seems to be well regarded in her community at the present time. She also claims to have the full support of her husband to her proposal to have maternal access visits at their home.

Of some comfort is the fact that any ostensible antipathy or animosity between Connie and Shauna seems to have disappeared since Shauna withdrew from her involvement last November. [ 29 ] According to the recent evidence, the infant, S., has been in the grandmother’s home on many occasions with the knowledge and acquiescence, if not the consent, of the society. This has been for grandparental visits, not for maternal access visits.

My inference is that these grandparental visits have not been supervised. [ 30 ] The grandmother has also proposed herself as a kin placement for N.V. and Z.V. once the current placement expires. It is not known whether the society has approved or disapproved her proposal, or even whether it has undertaken a formal kin assessment. This suggests that the grandmother is serious and is prepared to make a significant commitment to caring for N.V. and Z.V. as their primary caregiver. [ 31 ] There is one further concern that arises in terms of the grandmother, namely her attitude and relationship with the society.

It has not been particularly amicable. She has, in the past, made negative comments about the society, even in the presence of the children, has been argumentative, denigrating and inappropriate in her conversations. The society feels that the grandmother has sabotaged efforts by both the society and by Shauna to improve the mother’s parenting skills. It feels that the grandmother has been a negative influence on the mother’s ability to parent. [ 32 ] In April of 2010, the society declined to approve Connie as an access supervisor of Ms. S.C.’s access visits with N.V. and Z.V. [ 33 ] But it is now January 2011.

I have more evidence that portrays Connie in a more positive light. The society’s refusal to approve Connie as an access supervisor (in April 2010 or at any time) does not place any constraint on the court in doing so, provided that the evidence supports the inference that she will be an adequate access supervisor. [ 34 ] I am not prepared to fully approve Connie as an access supervisor. However, I am ready to accept her in this role with some limitations.

First, the society will have the right to have its own access supervisor or child protection worker present during all or any part of maternal access visits supervised by Connie. Second, the grandmother is not to denigrate the society or its workers at any time, and particularly in the presence of the children.

Third, the grandmother is to communicate with the society on any matter relating to her access supervision, and in particular to report forthwith any situation that can reasonably be construed as containing elements of risk of harm for the children. [ 35 ] My hope is that the maternal access exercised at the grandparental home will be problem free and that there will develop in the society a greater confidence in the grandmother as an access supervisor. Should circumstances deteriorate, however, the court may have to resume access visits at the Pilgrim Street facility.

My hope also is that the grandmother will recognize that the society is mandated to maintain its involvement because of an order made by the court, and that it cannot just disappear from the scene. [ 36 ] What is usually an obstacle between the society and an access parent is the

interpretation of what constitutes “reasonable” access in terms of time, frequency and duration. The society urges use of terminology in the access order that is unspecific with respect

to these facets. It argues that this promotes the greatest flexibility permitting the society to make adjustments as they are needed because of changes in circumstances that may occur during the currency of the order. It also argues that it can be relied upon to set or reset these aspects of access in a reasonable fashion. The evidence in this case, it contends, demonstrates that what has transpired over the past two years is a reflection of the reasonableness of its approach to maternal access. [ 37 ] The mother, not unexpectedly, disagrees that her present actual access is reasonable.

She argues that the combination of full supervision, restricted location, limits on frequency and duration, as well as times, all combine to make her access unreasonable. She does not want the society to have the unilateral right to determine what her access should be or what changes to her access should be made from time to time.

What she would like is an expansion of what she is presently being afforded, with a lesser degree of constraint, and guaranteed in the form of an access order of the court. [ 38 ] Of course, each of the society and the mother maintain that their significantly disparate positions on maternal access are what are in the best interests of the children. Neither says why this is so. Neither provides any significant evidence from which I might make the inference that each wishes me to make.

In fact, I suspect that, in considering the word “reasonable”, each side is looking more to what is reasonable from a self-interest standpoint than what is reasonable from the point of view of the children. [ 39 ]

Section 1 of the Act emphasizes that the paramount purpose of this statute is the promotion of the best interests, protection and well being of children. [11] However, there are additional purposes that are important, so long as they are consistent with the primary purpose.

Among these [12] are a recognition: • that help to parents should give support to the autonomy and integrity of the family unit; • that the least disruptive course of action that is available and appropriate to help a child should be considered; • that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions, and the concept of the extended family. [ 40 ] These purposes have application just as strongly where parenting of a child takes place in the context of an access relationship.

In the present case, the foregoing favour the maximization of maternal contact by these children, favour such contact taking place in a home of an extended family member, and in particular, one who is ethnically Indian and is actively following the Indian traditions. [ 41 ] These children are Indian children [13] through their father, at any rate. Ironically, they do not acquire Indian status under the Child and Family Services Act through their mother or grandmother, both of whom are Indian persons (at least not at the present time).

Despite this anomaly, the maternal family is, in my view, overwhelming more Indian than is the paternal family in all respects. [ 42 ] My decision on maternal access does not compromise the protection of N.V. and Z.V.. They will still reside with their paternal grandparents in the home that they regard as their home. The society will continue to exercise a supervisory role in this placement. The access will be expanded temporally so that these children spend more time with their mother. Concerns about risk of harm because of their mother’s parenting deficiencies should not be a major factor.

She will continue to be supervised when the children are in her care during access. She will not be alone. She will have either Shauna present, or her mother present. In addition, at the option of the society, she will have someone from the society present as well. [ 43 ] I am not proposing to make a final order of maternal access. I recognize that the access I am contemplating represents a considerable change from what has been the current status quo . There are variables that may affect what can be put into practice.

For example: Shauna’s consent and availability, the presence of S. at the mother’s access visits, the presence of Mr. A.W. at such visits, the rate of progressive expansion of such visits, whether such visits can take place partially in the community, et cetera . [ 44 ] The other major practical consideration is the transportation of these children from and to their home. The most recent evidence indicates that the paternal grandparents do virtually all of the transporting. Is this going to continue? I really do not know. If not, who will transport the children? The society? Or the mother? Or the grandmother?

Or a band? [ 45 ] My feeling is that a conference that includes all of the interested parties should be convened to work out any logistical or other difficulties that may arise in implementing the access contemplated in this decision. My preference is that the parties will present to the court mutually agreed upon terms of an interim maternal access order. Should that not materialize, I will set the terms. I suggest a 30-day period to work on a possible consent order. [80] There will also be an order in each case for maternal access.

I am, of course, aware that the society had cut back drastically on the frequency and duration of maternal access from what it had arranged when Shauna was involved with the mother. I am equally aware that the mother was dissatisfied with the reduced access. I am hopeful, but not optimistic, that the mother and the society will be able to negotiate mutually agreeable terms as to maternal access. [81] If they cannot, I see no recourse but to have a hearing on the issue of maternal access. The trial of these two applications was focused on placement.

The evidence with respect to access was plentiful, but the circumstances have clearly changed. For example, with this decision on placement, I do not know what involvement, if any, the mother’s cousin Shauna will have in the context of maternal access. I understand that the mother’s new baby is expected in late fall. This is another development that may bring about circumstances that will impact on maternal access to N.V. and Z.V. Also, the paternal grandparents may have some desire to provide input into what maternal access terms should be ordered.

Finally, I am sensitive to the fact that N.V. will be age four years in December and she is on the verge of starting into some level of primary schooling that will demand significant parts of her days.

59. Access: where child removed from person in charge.—

(1) Where an order is made under paragraph 1 or 2 of subsection 57(1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the per- son unless the court is satisfied that continued contact with him or her would not be in the child’s best interests. 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.

(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. 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. 4.

To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.