An Update from the Office of the Children’s Lawyer

Legislation and case law in Ontario recognize the importance of a child’s right to have a voice in decisions that are being made about their lives, reflecting Canada’s obligations under The United Nations Convention on the Rights of the Child. The Office of the Children’s Lawyer (OCL) has a significant role in placing that voice at the center of decision making in the family justice system. Our ability to offer this assistance, however, was and continues to be, affected by the COVID-19 pandemic.

Expectedly, in the early months of the pandemic there were far fewer referrals to the OCL as access to the courts was limited. The OCL also limited our acceptance of custody and access cases to files that were designated by the courts as urgent. Further, the OCL was unable to accept Voice of the Child Reports while we focused on developing processes for in person visits and adapted to the use of virtual interviews. By the end of May, the courts were expanding services and our office also began accepting files and Voice of the Child Reports in accordance with our intake criteria. In addition to custody and access files, we continued to represent children under the Child, Youth and Family Services Act, 2017 (CYFSA) in the areas of child protection, secure treatment, adoption, openness, Voluntary Youth Service Agreements for 16 and 17 year olds, and in alternative dispute resolution processes.

Children should have a voice in decisions made about them, however, our ability to meet with our clients and obtain their views was significantly impacted. We had to learn how to interview children remotely, identify when remote interviewing was not appropriate, and then adjust to meeting children while wearing PPE. Over the summer months we were able to utilize outdoor spaces to meet with our clients, however, this will become a challenge as the weather turns colder. Some of our clients do not have access to technology for virtual visits and some of our clients do not live in homes with physical space to allow for privacy during virtual interviews. Further, clients who reside in remote areas may not have reliable internet service. The OCL has worked to ensure that, despite these challenges, children have an ability to share their views and wishes with the lawyer and/or clinician.

The pandemic has also isolated children from their schools, peers and family members. While most custody and access decisions supported continuing existing access arrangements [1], a different approach was taken in child protection cases at the beginning of the pandemic. Many children’s aid societies advised that they were unable to supervise visits, leaving families with few in person options and some courts raised concerns about parents’ ability to comply with COVID-19 recommendations [2]. While access did resume in most cases, there were significant periods of time where children in care did not have face to face contact with their family.

As our clients faced these challenges, the OCL was involved in several appellate decisions that advanced children’s rights. In Office of the Children’s Lawyer v. Catholic Children’s Aid Society of Toronto [3], the OCL successfully appealed a decision in which a Judge accepted a consent signed by the Society and the parents, even though it was opposed by the child. The appellate court overturned the decision of the trial Judge, confirming that under the CYFSA, children (if they are over twelve or represented by counsel) have the rights of a party. The Court determined that the trial Judge’s decision disregarded the child’s participatory rights and failed to recognize him as an individual with rights. In Children’s Aid Society of Toronto v. JG [4], the OCL intervened in a case before the Ontario Court of Appeal and made submissions that a restrictive interpretation of the access test for children in extended care could negatively impact children in Ontario. The Court of Appeal confirmed that the court must apply the best interest test without a burden of proof or onus on the person seeking access. The Court also confirmed that it is not appropriate to import restrictive language from decisions under the old legislation. This was a significant step forward for children who want to maintain relationships with parents, siblings and members of their community. Further, in MAA v. DEME [5] the OCL successfully supported an appeal of a trial Judge’s decision to return children to Kuwait. The trial Judge found that Ontario was not the appropriate jurisdiction to hear the case because the children were not at serious risk of harm. The Court of Appeal found that the trial Judge erred in discounting evidence from the children about violence they had experienced and their fears of returning. The Court of Appeal ruled that the trial Judge’s determination that the children’s views were influenced was an error given uncontradicted evidence from three professionals stating the children’s views were independent. The Court of Appeal also found that children, who had brought refugee claims in Canada, should not be forced to return until their refugee claim had been determined. 

The pandemic has forced everyone to do things differently and think about things from different perspectives. Electronic filing, zoom court, virtual interviews and zoom fatigue are now commonplace. While there are challenges with any new developments, our goal is to ensure that children are seen and heard as we move forward in what continues to be challenging circumstances.

[1] See Ribeiro v Wright, 2020 ONSC 1829.
[2] See decisions in Children’s Aid Society of Toronto v. O.O, 2020 ONCJ 179;  Simcoe Muskoka Child, Youth, Family Services v CB and JB 2020 ONSC 2109; and Children’s Aid Society of Oxford Country v CFS, 2020 ONCJ 274 for cases in which in person access was not permitted. Other decisions such as DCAS v JQ, 2020 ONSC 1761 and Children’s Aid Society of Toronto v TF, 2020 ONCJ 169 commented that children’s aid society’s could not take a blanket approach to suspend all access absent specific concerns.

[3] 2020 ONSC 4310.

[4] 2020 ONCA 415.

[5] 2020 ONCA 486.

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