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Children’s Aid Society of Brant v. A.A., 2020 ONCJ 535
Date of Judgment: November 20, 2020

Background

This case concerns a temporary care hearing under section 94 of the Child, Youth and Family Services Act (CYFSA). The primary issue is the placement of the child, N.J-A., pending the final resolution of a child protection application brought by Brant Family and Children's Services (Children’s Aid Society of Brant). The child’s biological parents, A.A. and M.J., are respondents, along with the child’s maternal grandparents, D.A. and B.A.

A Kinship Services Agreement (KSA) was executed in May 2019 between the mother, maternal grandparents, and the Society, placing the child with the grandparents due to concerns regarding the mother’s substance use. The agreement was renewed twice before expiring in May 2020. Upon expiration, the Society initiated a protection application, seeking continued placement of the child with the grandparents under supervision. The father, A.A., contested this, arguing that he was not given an opportunity to assume care of his child.

Legal Framework

The case is governed by the Child, Youth and Family Services Act, 2017 (CYFSA), particularly Part V, which addresses child protection. Key statutory provisions include:

  • Section 75: Outlines voluntary agreements for temporary care, distinguishing them from formal protective interventions.

  • Section 94(2): Establishes a preference for maintaining the status quo in temporary care decisions, favoring the individual(s) who had charge of the child before state intervention.

  • Section 74(2): Defines the circumstances under which a child is considered in need of protection, guiding court assessments of risk and parental capacity.

Positions of the Parties

  • Children’s Aid Society of Brant: Seeks to maintain the child’s placement with the maternal grandparents, arguing that the KSA does not constitute statutory intervention under Part V of the CYFSA.

  • Father (A.A.): Contends that he was not informed of the KSA and was unfairly excluded from decision-making regarding his child’s care. He seeks custody.

  • Mother (M.J.) and Maternal Grandparents (D.A. and B.A.): Align in support of the child remaining with the grandparents.

  • Office of the Children’s Lawyer (OCL): Represents the child’s views and preferences, noting the child wishes to live with his father.

Effect of Kinship Services Agreement

The court found that the KSA did not fall under section 75 of the CYFSA, as the child was not taken into the care of the Society. Instead, it was a voluntary agreement that functioned as a safety plan. Therefore, statutory intervention under Part V did not begin until the formal protection application was filed in 2020. At that time, the grandparents had charge of the child, making them the preferential placement under section 94(2).

Temporary Care and Custody Decision

Placement During Adjournment

  • Since the grandparents had charge of the child prior to the intervention, section 94(2) required that the child remain in their care unless protection concerns were demonstrated.

  • No protection concerns were identified regarding the grandparents' care.

  • The child’s expressed preference to live with his father was deemed irrelevant at this stage, as the statutory framework does not allow for a best interests analysis in temporary care decisions.

Terms of Supervision

  • The court found no necessity for terms of supervision over the grandparents, as they had been acting protectively and cooperatively with the Society.

Parental Access

  • Mother (M.J.): Supervised access, as determined by the Society, due to ongoing substance use concerns.

  • Father (A.A.): Expanded access to three weekends per month, with additional time over holidays and March Break.

  • Condition: The father must ensure the child attends extracurricular activities during his access periods.

Conclusion

The child remains in the temporary care and custody of the maternal grandparents, with supervised access for the mother and expanded access for the father. The decision prioritizes stability under the statutory framework, with further adjudication required for final custody determinations.

Catholic Children’s Aid Society of Toronto v. A.P., 2019 ONCJ 631

Facts

The Catholic Children's Aid Society of Toronto (CCAS) initiated a Protection Application under the Child, Youth and Family Services Act, 2017 (CYFSA) regarding a 9-month-old child, J.S.P. The society sought a finding that the child was in need of protection under subsections 74(2)(b)(i) and (ii) of CYFSA and requested an order for extended society care with no parental access.

  • The mother (A.P.) had a history of substance abuse (cocaine addiction), multiple incarcerations, and lack of prenatal care.

  • The father (E.S.) was incarcerated and had a history of theft-related offenses, substance abuse, and unstable living conditions.

  • The child was apprehended at birth, and both parents were eventually noted in default for failing to file responses in the proceedings.

  • The court determined that the child was not of Indigenous heritage.

A focused hearing on access rights was conducted after the father sought continued supervised access to the child. The mother had no contact with the child since birth.

Legal Framework

Relevant Legislation

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

    • Section 74(2)(b)(i) and (ii): Defines when a child is in need of protection.

    • Section 104: Sets out the court’s authority to make or vary access orders in a child’s best interests.

    • Section 105(5) and (6): Establishes that access to a child in extended society care is only granted if it is in the child’s best interests and does not impair adoption prospects.

    • Section 105(7): Specifies that an access order may impact future openness applications in adoption.

    • Section 194(4): Addresses openness orders in adoption proceedings.

Case Law Considered

  • Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316

    • The Ontario Court of Appeal clarified that access orders for children in extended society care should be based on the child’s best interests and not constrained by a presumption against access.

  • Children's Aid Society of Toronto v. J.G., 2019 ONCJ 333

    • Courts should conduct a holistic and comprehensive analysis of the child’s best interests when determining access.

  • Children’s Aid Society v. A.F., 2015 ONCJ 678

    • Identified factors that impair a child’s adoption opportunities, including parental instability, history of substance abuse, and litigious behavior.

  • Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530

    • Discussed how openness orders could deter adoptive families due to the risk of prolonged litigation.

Issues

  1. Is an order for access in the child’s best interests?

  2. If access is granted, what are the appropriate terms?

  3. Would an access order impair the child’s future adoption prospects?

Decision

The court ordered no parental access and allowed the child to be placed for adoption. The decision was based on:

  • Best Interests of the Child

    • The father’s access was inconsistent (67% attendance, frequent tardiness), and the mother had no contact.

    • The child was too young to recognize or benefit significantly from access.

  • Adoption Considerations

    • A culturally and racially matched adoptive family was identified and willing to adopt the child along with her half-sibling.

    • The prospective adoptive family was not willing to proceed with adoption if access was ordered.

    • An access order would delay the child’s permanent placement and possibly deter other adoptive families.

  • Father’s Personal Circumstances

    • History of substance abuse, unstable housing, and criminal activity.

    • Lack of demonstrated ability to provide a consistent presence in the child’s life.

Conclusion

The court concluded that an access order was not in the child’s best interests and would impair adoption opportunities. The father was denied access, and the child was placed for adoption with ongoing indirect updates (letters and photos) provided by the adoptive parents.

Significance

This case reaffirms the shift in Ontario child protection law towards a flexible, best-interests analysis rather than a strict presumption against access for parents of children in extended society care. The ruling highlights how permanency and adoption planning play a critical role in access determinations under the CYFSA framework.

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