In child protection matters, the Children's Aid Society ("the Society"), as a litigant, may start a court application against a parent if they believe that a child is in need of protection. The Society then asks the Court to make an order with respect to what intervention is necessary to protect the child(ren). For example, should the child be placed in the care of the parent or another person, subject to the supervision of the Society, or should the child be placed in interim or extended Society care?
There has been a divide in the case law on whether an access order can be at the discretion of a Society. However, in J.S.R. v. Children's Aid Society of Ottawa, 2021 ONSC 630 the Ontario Divisional Court confirmed that the authority to make an order with respect to access rests solely with the judiciary and cannot be delegated to a third party, including the Society.
In J.S.R. v. Children's Aid Society of Ottawa, 2021 ONSC 630 (CanLII), the mother appealed the decision of the trial judge, who ordered that her two young children be placed in extended Society care, with her access to the children being at the Society's discretion and in accordance with the best interests of the children.
The appellant mother appealed this decision and asked that her children be placed in her custody with Society supervision. In the alternative, she asked for specific access to both children if they were to remain in the care of the Society.
In determining whether the trial judge erred in ordering that access be at the Society's discretion, the court considered Sections 104 and 105 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the "CYFSA"), which mandates that it is the court that must determine what access is in a child's best interests, not the Society.
In order to determine the best interests of the child, the court analyzes the factors set out in Section 74(3) of the CYFSA which include considering the child's views and wishes, relationship with parents, and physical, mental, and emotional needs. Having found that the access orders were made in favour of the appellant mother, the court turned to the question of whether a court could delegate all aspects of access, including all decisions about type, frequency, and duration to the Society. The court reviewed the arguments made in previous cases in support of and against delegating a child's access at the discretion of a Society.
In reviewing these cases, the court determined that discretion cannot simply be delegated solely to the Society or to anyone else. Case law relied on by the Society, such as H.(C.) v. Children's Aid Society of Durham (County), 2003 CanLII 57951, was distinguished on the basis that it considered an appeal of a temporary order, whereas this case concerned a final decision.
As Sections 104 and 105 of the CYFSA do not either explicitly or implicitly provide the court any powers to delegate its authority to make access orders, the court found that the trial judge erred in law by delegating the discretionary elements of access to being at the sole discretion of the Society. The appeal with respect to the terms of access was allowed and the matter was remitted to the trial judge to determine the appropriate process for finally determining the terms and conditions of access.
In making this finding, the court noted that it would be rare for legislation to authorize a court to delegate its judicial functions to any third party who is also a party to the litigation when neutrality and objectivity are essential to the decision-making process.
The court's decision is important in clarifying both the interpretation of Sections 104 and 105 of the CYFSA and the role of the court in making access orders. By distinguishing access orders made at temporary versus final hearings, different rules may apply for terms of access at the discretion of the Society depending on the type of order. For now, this decision helps to ensure that no party to the litigation, including the Society, will have sole discretion in defining access to children pursuant to a final order.
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