2018 ONCJ 288, 2018 ONCJ 288

WARNING The court hearing this matter directs that the following notice should 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. CITATION: Catholic Children’s Aid Society of Toronto v.

K.R., 2018 ONCJ 288 DATE: May 1, 2018 COURT FILE NO.C10423/18 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO BRIAR DOWNEY, for the APPLICANT ) APPLICANT ) ) - and - ) K.R. and F.K. ) PETER HUTCHEON, DUTY COUNSEL, for the RESPONDENT, K.R. RESPONDENTS ) F.K. not served KAREN LINDSAY-SKYNNER, for the OFFICE OF THE CHILDREN’S LAWYER, for the subject child ) ) ) HEARD: MAY 1, 2018

AND IN THE MATTER OF COURT FILE NO. 10555/18 B E T W E E N: ) ) CHILDREN’S AID SOCIETY OF TORONTO JODI KAIMAN, for the APPLICANT ) APPLICANT ) ) - and - ) K.D. and O.P. ) PETER HUTCHEON, DUTY COUNSEL, for the RESPONDENT, O.P. RESPONDENTS ) K.D. not appearing ) ) HEARD: MAY 1, 2018 JUSTICE S.B.

SHERR ENDORSEMENT Part One – Purposes of The Child Youth and Family Services Act , 2017 [ 1 ] The Child, Youth and Family Services Act , 2017 (the Act) was proclaimed into force on April 30, 2018. [ 2 ] There are many changes in the Act that will affect how child protection cases are managed and determined. [ 3 ] The paramount purpose of the Act remains unchanged from the Child and Family Services Act – to promote the best interests, protection and well-being of children. [ 4 ] However, there have been significant additions to the other purposes of the Act .

Subsection 1 (2) of the Act reads as follows (with the substantive new purposes bolded): Other purposes

(2) The additional purposes of this Act , so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following: 1. 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.

The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered. 3.

Services to children and young persons should be provided in a manner that, i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons, iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family

diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, iv. takes into account a child’s or young person’s cultural and linguistic needs, v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate. 4.

Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible. 5. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible. 6.

First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family. 7. Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families. [ 5 ] The

preamble to the Act assists the court in determining how subsection 1 (2) of the Act should be applied to the cases that come before it. The

preamble specifically addresses the issue of providing services to children and their families. The

preamble emphasizes that: The Government of Ontario is committed to the following principles: Services provided to children and families should be child-centred. Children and families have better outcomes when services build on their strengths. Prevention services, early intervention services and community support services build on a family’s strengths and are invaluable in reducing the need for more disruptive services and interventions.

Services provided to children and families should respect their diversity and the principle of inclusion, consistent with the Human Rights Code and the Canadian Charter of Rights and Freedoms . Systemic racism and the barriers it creates for children and families receiving services must continue to be addressed. All children should have the opportunity to meet their full potential. Awareness of systemic biases and racism and the need to address these barriers should inform the delivery of all services for children and families.

Services to children and families should, wherever possible, help maintain connections to their communities. [ 6 ] Children’s Aid Societies (societies) and the court should be addressing the purposes set out in subsection 1 (2) of the Act , and in particular, the issue of services for children and their families at all stages of a case. [ 7 ] It means that as early as practicable in a case societies should be doing the following: [1]

a) It should be providing timely and ongoing file disclosure to counsel for the parties and counsel for the children so that they can meaningfully participate, if they choose to do so, in a discussion about what services for the children and their family will best meet the purposes of subsection 1 (2) of the Act .

b) It should be assessing the strengths of the children and their family in order to determine what services can be provided to them that will build on those strengths.

c) It should be giving the children, where appropriate, and their family the opportunity to have input into what services should be provided to them, in a manner that best meet the purposes set out in subsection 1 (2) of the Act .

d) It should be providing a clear list of expectations for the childrens’ family about what they need to do to have the children returned to them. This can be set out in a letter.

[ 8 ] The court also has an obligation to ensure that the purposes of the Act are achieved. [2] This court will require the society to take the steps set out in paragraph 7 above and report back to it about its service plan and how it arrived at this plan throughout the case conference process. It will want to know about the strengths of the children and their family and how the service plan will build on those strengths. It will want to ensure that the service plan is meeting the purposes set out in subsection 1 (2) of the Act.

The court will be routinely asking the society the question, “what are you doing to comply with the purposes set out in subsection 1 (2) of the Act”? [ 9 ] This court will also clearly set out its expectations of the society, the parents and any caregiver for the child, and even for the child, where appropriate, at court appearances. This court’s experience is that clear identification of risks, clarity of expectations to adequately address those risks and active monitoring by the court of compliance with its expectations (by all parties) provides families with the best opportunity to succeed.

Part Two – Cases before the court 2.1 Catholic Children’s Aid Society of Toronto v. K.R. [ 10 ] This was the second court appearance in this case. The subject child, age 11, is autistic and was brought to a place of safety, from the care of his mother, the respondent K.R. (the mother) on February 27, 2018. The child has been having significant behavioural problems and the mother has been struggling to cope with them. [ 11 ] On March 5, 2018, an order was made placing the child in the temporary care of the society, with access to the mother.

A referral was made to have counsel appointed for the child. [ 12 ] The child’s father, the respondent, F.K., has not been served yet with the protection application. [ 13 ] The case returned for a case conference on May 1, 2018. Some progress has been made. The society and the mother are working well together. The parties are discussing a gradual increase in access, leading to overnight visits. The case conference was adjourned to July 4, 2018. [ 14 ] The court directed the society to do the following during the adjournment period:

a) Assess the strengths of the child and the mother.

b) Set out for the mother and counsel for the child, its proposal for services for them – a service plan that should be consistent with the purposes set out in subsection 1 (2) of the Act .

c) Provide the opportunity to the mother and counsel for the child to give input into the service plan. An all-parties meeting is always a good way to have this discussion.

d) Set out and deliver to the mother and counsel for the child its list of expectations of them to have the child returned to the mother’s care.

e) To provide an oral report to the court about its proposed service plan for the child and the mother and its list of expectations for them at the next court date. 2.2 Children’s Aid Society of Toronto v. K.D

[ 15 ] This was the second court appearance with respect to this child who is under two months old. [ 16 ] The child was brought to a place of safety from the care of his mother, the respondent, K.D. (the mother) on March 16, 2018, due to significant mental health concerns about her. [ 17 ] On March 21, 2018, Justice Debra Paulseth ordered that the child be placed in the temporary care of the society, with access in the discretion of the society. [ 18 ] The mother did not attend at court on May 1, 2018.

The society was given leave to bring a motion on the return date to appoint the Public Guardian and Trustee for her. [ 19 ] The respondent father, O.P. (the father) attended at court and advised that he was going to plan for the child. An extension was given to him to file an Answer/Plan of Care. [ 20 ] The court was advised that the father is having positive access with the child. [ 21 ] The case was adjourned until June 14, 2018. The society was asked to do the following during the adjournment period:

a) Assess the strengths of the father.

b) Set out for the father its proposal for services for him and the child – a service plan that should be consistent with the purposes set out in subsection 1 (2) of the Act .

c) Provide the opportunity to the father to give input into the service plan. Again, a meeting is a good opportunity to have this discussion.

d) Set out and deliver to the father its list of expectations of him for the child to be placed in his care.

e) To provide an oral report to the court about its proposed service plan for the child and the father and its list of expectations for the father at the next court date. Released: May 1, 2018 Justice S.B. Sherr