Access at the Discretion of the Children's Aid Society

Children's Aid Society of Toronto v NN, 2017 ONCJ 827

Facts

The Children's Aid Society (hereinafter, "CAS") placed an eight year-old child in the care of L, a friend of the family, after the child's mother was admitted to a hospital for experiencing a psychotic episode. The CAS placed the child in the care and custody of the family friend on a without prejudice basis, with access to the mother at the discretion of the CAS. Subsequently, the CAS placed the child with a different family friend, C, on an extended access visit, which involved changing the child's school. Sadly, the child's mother suffered from a seizure and died. Again, the child was placed in the temporary care and custody of L.

The CAS failed to advise the child's counsel or the Court that the child had been moved out of L's care and into the care of C. When the Court learned of same, Justice Pawagi directed the CAS to bring a motion to vary the interim supervision order of the child. The CAS did same and the Order was granted.

Notably, however, prior to Justice Pawagi releasing her decision, the child's mother passed, and the child was returned to the care of L, rendering the decision moot. However, Justice Pawagi released her decision for the purposes of providing guidance on the proper interpretation of "discretionary access orders" made under the Child and Family Services Act.

Analysis

The Children's Aid Society uses the term "extended access visit" to refer to an access visit where the duration is not fixed at the start of the visit. The Society sees an "extended access visit" as an available option, once the Court has deemed that access is at the discretion of the society.

Justice Pawagi notes that there are several pitfalls associated with the concept of extended access visits. Specifically, Justice Pawagi noted that if a child is placed in an extended access visit with a parent, the society effectively expands its power of discretion over access to the point where the child is actually living full-time with that parent, even though the child is supposed to be in the care of the Society. This is in in contravention of the order and leaves the child badly exposed if the child were to be harmed during the extended visit, because the child is still technically in the care of Society. Furthermore, if the extended visit breaks down and the child is removed from the parent's care, it results in what is in effect a re-apprehension of the child, but without the requirement that there be a Court hearing within five days of the apprehension in accordance with section 46(1) of the Child and Family Service Act (CFSA).

The Society bases its power to authorize an extended visit in Court orders that leave access to the Society's discretion.

However, Justice Pawagi identified that there are competing lines of authority as to whether the court has the jurisdiction to delegate decision making over access to the Society. To explain, the Divisional Court held that the Court has jurisdiction to order access at the discretion of the society, however, the Ontario Court of Justice and Superior Court of Justices held that the Court does not have this discretion.

Ultimately, Justice Pawagi held that the concept of "access at the discretion of the society" should not be treated by the Society as permitting it to place a child on what is tantamount to a new placement under the guise of an "Extended access visit". It is critically important under the scheme of the CFSA that the society obtain prior judicial authorization before effecting what is really a change in the child's placement pending final determination of the matter.

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