{"id":2094,"date":"2020-04-24T06:46:35","date_gmt":"2020-04-24T06:46:35","guid":{"rendered":"https:\/\/ccla.org\/?p=2094"},"modified":"2021-09-15T18:15:31","modified_gmt":"2021-09-15T18:15:31","slug":"les-enfants-et-les-parents-doivent-etre-ensemble-surtout-en-cas-de-pandemie","status":"publish","type":"post","link":"https:\/\/ccla.org\/fr\/fundamental-freedoms\/children-and-parents-belong-together-especially-during-a-pandemic\/","title":{"rendered":"Les enfants et les parents appartiennent ensemble, surtout pendant une pand\u00e9mie"},"content":{"rendered":"\n\t\t
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April 23, 2020<\/p>\n

Honourable Doug Downey
\nAttorney General of Ontario
\n11th Floor, 720 Bay Street
\nToronto, ON M7A 2S9<\/p>\n

Ms. Lisa Sarsfield
\nChair, Ontario Association of Children\u2019s Aid Societies
\n75 Front Street East, Suite 308
\nToronto, ON M5E 1V9<\/p>\n

Honourable Todd Smith
\nMinister of Children, Community and Social Services
\nHepburn Block, 6th Floor
\n80 Grosvenor Street
\nToronto, ON M7A 1E9<\/p>\n

Mr. David Remington
\nAssistant Deputy Minister, Child Welfare & Protection
\nMinistry of Children, Community and Social Services
\nHepburn Block, 6th Floor
\n80 Grosvenor Street
\nToronto, ON M7A 1E9<\/p>\n

RE: Direction to Children\u2019s Aid Societies on Parental Access<\/strong><\/p>\n

Dear Ministers, Mr. Remington and Ms. Sarsfield,<\/p>\n

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\u2019s 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.<\/p>\n

It has come to our attention that many Children\u2019s 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\u2019s 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.<\/p>\n

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\u2019s Aid Society of Toronto, the Children\u2019s Aid Society of Halton, the Durham Children\u2019s 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 \u2013 unfortunately, there is little transparency about how access issues are being managed. In Children\u2019s 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.<\/p>\n

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.<\/p>\n

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 \u201cdirect 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.\u201d[New Brunswick (Minister of Health and Community Services v. G.(J)., [1999] 3 S.C.R. 46, para. 61]<\/p>\n

Ontario\u2019s 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\u2019s best interests.<\/p>\n

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.<\/p>\n

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:<\/p>\n