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CHILD PROTECTION - Supervision or guardianship - Access by parents

Thursday, May 30, 2019 @ 8:49 AM  

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Appeal by the mother from an order that denied her access to three of her Indigenous children in extended care. The children were three of six siblings apprehended by the respondent Society in 2015 because of protection concerns involving violence in the home, health issues and neglect. The mother consented to a summary judgment motion seeking Crown wardship but sought access. The motion judge made the children Crown wards but denied them access to their mother. The Divisional Court determined the motion judge erred but denied access by applying provisions of the Child and Family Services Act. The Divisional Court’s decision was released seven days after the Child, Youth and Family Services Act was proclaimed in force.

HELD: Appeal allowed. The Divisional Court erred by applying the Child and Family Services Act instead of the transitional provisions of the Child, Youth and Family Services Act. A decision under reserve meant the case was not concluded under s. 11(1) of Ontario Regulation 157/18 and the transitional provisions applied. The Divisional Court considered the wrong framework for access and arrived at a determination that was not available on the evidence. It did not apply the expanded provisions in the new Act with respect to access generally, erred in failing to apply the special considerations for Indigenous children and misstated the approach to summary judgment in child protection matters. The record was insufficient to satisfy the test for access to children in extended care, based on their best interests, under the new Act. Fairness in a child protection summary judgment motion necessitated caution and the need for the court to consider special considerations. The test was whether there was no genuine issue requiring a trial. The matter was remitted to the Superior Court for a determination of the mother’s request for access under the provisions of the Child, Youth and Family Services Act.

Kawartha-Haliburton Children's Aid Society v. M.W., [2019] O.J. No. 2029, Ontario Court of Appeal, P.D. Lauwers, M.L. Benotto and D.M. Brown JJ.A., April 18, 2019. Digest No. TLD-May272019007