Children and Parents Belong Together, Especially During a Pandemic

April 23, 2020

Honourable Doug Downey
Attorney General of Ontario
11th Floor, 720 Bay Street
Toronto, ON M7A 2S9

Ms. Lisa Sarsfield
Chair, Ontario Association of Children’s Aid Societies
75 Front Street East, Suite 308
Toronto, ON M5E 1V9

Honourable Todd Smith
Minister of Children, Community and Social Services
Hepburn Block, 6th Floor
80 Grosvenor Street
Toronto, ON M7A 1E9

Mr. David Remington
Assistant Deputy Minister, Child Welfare & Protection
Ministry of Children, Community and Social Services
Hepburn Block, 6th Floor
80 Grosvenor Street
Toronto, ON M7A 1E9

RE: Direction to Children’s Aid Societies on Parental Access

Dear Ministers, Mr. Remington and Ms. Sarsfield,

I am writing on behalf of the Canadian Civil Liberties Association (CCLA) to raise a concern about the treatment of families involved in child protection proceedings during the COVID-19 pandemic. In bringing this matter to your attention, we are asking that you provide guidance and direction to Children’s Aid Societies in the province and ensure that rights of access for parents and children are being respected and facilitated in accordance with the law. To date, we are aware of no government directive that has specifically touched on child protection matters, resulting in a patchwork of inconsistent and often unfair practices across the province.

It has come to our attention that many Children’s Aid Societies have effectively cancelled all in-person access visits for families in the system. While we appreciate and acknowledge that access taking place in supervised access centres presents significant challenges in light of physical distancing directives, the positions that have been taken on access by many of the Children’s Aid Societies are overbroad and unfairly burden parents with taking steps to secure access to their children that they are entitled to have pursuant to a court order. Even access visits that were previously taking place in a private home where children have been placed with other family members have been suspended, regardless of the precautions being taken by all participants in light of the COVID-19 pandemic.

Several societies appear to have put in place blanket policies that effectively suspend in-person access rights, even in the face of court-ordered access. Decisions rendered by the Ontario Court of Justice and Superior Court of Justice in recent weeks suggest that the Children’s Aid Society of Toronto, the Children’s Aid Society of Halton, the Durham Children’s Aid Society, Simcoe Muskoka Child, Youth and Family Services and Dnaagdawenmag Binnoojiiyag Child and Family Services have all put in place blanket policies that suspend face to face access. We suspect many other agencies have similar policies – unfortunately, there is little transparency about how access issues are being managed. In Children’s Aid Society of Toronto v. T.F., 2020 ONCJ 169, the Court noted that the society was suspending all in-person access visits where access is in the discretion of the society, and was seeking orders varying access to be at the discretion of the society where there were specified access terms. Although this suggests that the Society was bringing motions, we are aware of at least one case where parents with an order that specified access terms had to bring their own motion before the Court, after simply being advised by the Society that in-person access was suspended. In any event, the CAST approach requires all parents with access orders whose access is not specified to seek recourse through the courts. Many of these parents cannot afford counsel and do not qualify for legal aid. Moreover, many of the parents involved in the child protection system may not even appreciate that they can pursue the question of access before the courts.

There is also no consistency in how courts are approaching these issues. The Ontario Court of Justice in Milton has issued a practice direction that requires the Society to bring a motion to the Court where a parent does not consent to the suspension of access during the pandemic. We are not aware of similar directions in place in other courts.

Child protection proceedings implicate the Charter-protected rights of both parents and children. As the Supreme Court of Canada has recognized, interference in the parent-child relationship can constitute an interference with security of the person interests protected by section 7 of the Charter. The Court has also held that “direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere.”[New Brunswick (Minister of Health and Community Services v. G.(J)., [1999] 3 S.C.R. 46, para. 61]

Ontario’s Child, Youth and Family Services Act (CYFSA) allows the court wide discretion to make access orders where child protection proceedings are ongoing. The courts tend to presume that parents should have frequent, in-person access where a child has not yet been found to be in need of protection, and in cases where there is a clear possibility that the child will be returned to the parent, in order to maintain the parent-child bond. Even when a child is deemed to be in need of protection and permanently removed from their parent, the CYFSA requires that there be access provided it is in the child’s best interests.

In our view, both the Charter and the CYFSA require that decisions related to access be made in the best interests of the child and in light of the Charter rights of parents and children. Further, neither the Charter nor the CYFSA allow for a CAS to impose a blanket policy that bars in-person access and places the onus on parents to pursue rights of access through the courts. While we appreciate that the COVID-19 pandemic constitutes a serious public health emergency that may require extraordinary measures, it is significant that neither the government of Ontario nor any public health authority in the province has ordered that parental access for children in care or in kin placements should be suspended. Nor are we aware that any of the Societies that have put such policies in place have done so based on the advice of public health authorities or infectious disease experts.

It is also worth noting that, in the context of domestic custody arrangements, Ontario courts have taken the position that families should maintain the status quo in place before the pandemic, to the extent feasible. As Justice Pazaratz recently held:

children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.” [Ribeiro v. Wright, 2020 ONCJ 1829, paras. 10-11]

The approach that many Societies have taken is contrary to the due process rights of parents and children and does not appear to be based on sound evidence or science. A blanket policy effectively amounts to a CAS unilaterally varying a court order. Even where access is at the discretion of the Society, the Superior Court of Justice has held that this discretion does not permit societies to unilaterally suspend access. As you know, the families involved in the child protection system come disproportionately from marginalized communities, have limited resources, and face significant challenges. These are the same families that may be most adversely affected by the orders in place in response to the pandemic. They should not also be denied access to their children without an appropriately rigorous procedure and in the absence of compelling evidence.

We urge the province to provide direction to the Children’s Aid Societies that would allow for ongoing in-person parental access wherever it is feasible, and clarify that variations in access due to COVID-19 should be based on sound medical evidence and, where there is an access order in place, should only be made by the court. We would be pleased to discuss this matter further.

Sincerely,

Cara Zwibel
Fundamental Freedoms Program Director