The Children’s Aid Society of Ottawa v. C.V. and J.H.

Facts

• The Children’s Aid Society of Ottawa ("the Society") initiated a status review application seeking to have K., a child born in 2017, placed in Extended Society Care.

• K. was removed from C.V.’s care multiple times due to concerns regarding her substance abuse, mental health issues, and instability in her living situation.

• C.V. had a history of cocaine addiction, mental health challenges including self-harm, and unstable relationships.

• Despite progress made by C.V. in addressing her addiction and mental health concerns, the Society maintained concerns about her stability and ability to provide a safe environment for K.

• J.H., the father of K., was not involved in the child’s life and was noted in default in the proceedings.

Issues

1. Whether K. continued to be a child in need of protection under section 74(2)(b)(i) of the Child, Youth and Family Services Act, 2017 (CYFSA).

2. Whether K.’s best interests would be served by returning him to his mother’s care under supervision or placing him in Extended Society Care.

3. Whether the Society had made reasonable efforts to assist the child before intervention as required under section 101 of the CYFSA.

4. If K. were placed in Extended Society Care, whether an access order should be made for C.V.

Legal Framework

• Child, Youth and Family Services Act, 2017 (CYFSA):

  • Section 74(2)(a) & (b): Defines when a child is in need of protection due to risk of physical harm resulting from a caregiver’s failure to provide proper care or supervision.

  • Section 101: Requires consideration of less disruptive alternatives before removing a child from parental care.

  • Section 102: Allows the court to place a child in the custody of a person other than a foster parent if it is in the child’s best interests.

  • Section 104: Governs access orders in cases where a child is placed in Extended Society Care.

  • Section 105(6): Requires the court to consider whether an access order would be beneficial and meaningful to the child and whether it would impair adoption opportunities.

• Case Law Considered:

  • Children’s Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458 – The risk of harm must be real and likely, not speculative.

  • Catholic Children’s Aid Society of Metropolitan Toronto v. O(LM), 1995 CanLII 6216 – A child can be at risk of harm even if the conduct is not directly aimed at them.

  • Children’s Aid Society of Toronto v. J.G., 2020 ONCA – Interpretation of the "beneficial and meaningful" test for access orders.

Decision

• The court found that K. continued to be a child in need of protection under section 74(2)(b) of the CYFSA.

• Given the history of instability and concerns about C.V.’s ability to provide a secure and stable home environment, the court ordered that K. be placed in Extended Society Care under section 101(1) of the CYFSA.

• The court recognized that while C.V. had made substantial improvements, she had not yet demonstrated the long-term stability necessary to parent K. without supervision.

• The court found that the Society had made reasonable efforts to assist C.V. before seeking court intervention as required under section 101 of the CYFSA.

• The court granted an access order, allowing C.V. to have access to K. at the Society’s discretion but subject to a minimum of three visits per week. Both C.V. and K. were designated as "access holders" to ensure C.V. had an opportunity to apply for openness orders in future adoption proceedings.

Conclusion

This case underscores the importance of demonstrating long-term stability and addressing underlying risk factors before a child can be returned to parental care. The court emphasized the child’s need for permanence and stability while ensuring ongoing access to C.V. in a manner that does not impede potential adoption opportunities.

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Children’s Aid Society of Oxford County v. V.B., 2021 ONCJ 549

Background

The Children’s Aid Society of Oxford County (CAS) filed a motion under Rule 16 of the Family Law Rules, seeking a determination that two children continued to be in need of protection under section 74(2)(bi-ii) of the Child, Youth and Family Services Act (CYFSA). The Society sought a final custody order under section 102(1) granting care to the children's paternal grandmother, T.K., with access to the parents.

The children, born in 2007 and 2013, had been residing with their grandmother, T.K., since 2018 due to protection concerns regarding both parents, V.B. (mother) and J.P. (father). Concerns included domestic violence, substance abuse, criminal behavior, and inconsistent parenting.

Legal Framework

The court based its decision on the following key legal provisions:

1. Child, Youth and Family Services Act (CYFSA)

• Section 74(2)(bi-ii): A child is in need of protection if there is a risk of physical harm due to a parent’s failure to provide adequate care, supervision, or protection.

• Section 93(2): The court must consider evidence related to protection concerns separately from evidence regarding disposition.

• Section 102(1): Allows the court to grant custody to a person other than a parent if it is in the child’s best interests.

2. Family Law Rules

• Rule 16: Allows for summary judgment if there is no genuine issue requiring a trial.

• Burden of Proof: The applicant (CAS) must show that there is no triable issue regarding the children’s need for protection.

3. Case Law

• Hryniak v. Mauldin, [2014] 1 S.C.R. 87: Established a two-step test for summary judgment:

  1. Determine if there is a genuine issue requiring trial.

  2. If an issue remains, determine if expanded fact-finding is necessary.

• Kawartha Haliburton CAS v. M.W., 2019 ONCA 316: Courts should exercise caution in granting summary judgment in child protection cases, considering the Charter rights of parents.

4. Best Interests of the Child Standard (CYFSA Section 74(3))

The court considered:

• The children's views and preferences.

• Their need for stability and continuity.

• The risks associated with parental substance abuse and instability.

Key Issues

1. Whether the children should remain with T.K. under a supervision order or a final custody order.

2. Whether the father, J.P., should have supervised or unsupervised access.

3. The extent to which the mother, V.B., should have parenting time and under what conditions.

Court Findings

• The children continued to be in need of protection due to long-standing concerns with the parents, including substance abuse, criminal behavior, and neglect.

• T.K. had provided stable care for the children since 2018 with no protection concerns.

• The children expressed a strong preference to remain with their grandmother while maintaining supervised contact with both parents.

• The father, J.P., had inconsistent access and ongoing struggles with addiction and criminal activity.

• The mother, V.B., had demonstrated improved access consistency but had previous incidents of exposing the children to the father’s presence and alcohol consumption.

Court’s Decision

• Custody: Final custody (decision-making responsibility) was granted to T.K. under section 102(1) of the CYFSA.

• Parenting Time for V.B.: Granted access as agreed with T.K., with a minimum of one in-person visit per week, no alcohol/drug consumption 12 hours before or during access, and no contact between the children and J.P. during her access.

• Parenting Time for J.P.: Ordered supervised visits at Merrymount Access Centre once per week for two hours. If he missed five consecutive visits, access would be terminated pending a further court order. He was required to provide updated criminal records and evidence of rehabilitation before seeking changes to the order.

• Supervision Order Termination: The court found that further supervision by CAS was unnecessary and not in the children’s best interests.

Conclusion

The court determined that granting T.K. full custody with defined access conditions for the parents was the least intrusive and most protective order in the children’s best interests. The decision provided stability while allowing ongoing contact with the parents under supervision.