Unnecessary restrictions

The COVID-19 pandemic has magnified many of the problems we always knew existed but were easy to sweep under the rug. Prison overcrowding has long been a problem, for example, but it takes on added significance when you add a highly communicable and sometimes fatal disease into the mix. So too has the pandemic amplified many of the problems with our child protection system. There have long been concerns about the disproportionate involvement of child protective services with Indigenous, Black and other racialized families, and the lack of sufficient legal aid resources to assist families caught up in these proceedings. The problems with these systems go deep and deserve to be the subject of careful scrutiny and meaningful discussions. Ontario's child protection system is in desperate need of reform. 

Children's aid societies (CAS) exercise significant control over families in the system – and the pandemic put this into sharp relief. In the early weeks and months, they severely restricted parental access to children in care. At one of the most difficult times we have faced, vulnerable children, who normally could at least visit their parents, were kept from seeing them.

In April, CCLA wrote to ministers, government officials and the chair of the Ontario Association of Children's Aid Societies, raising concerns about blanket policies that were keeping families apart. At that time, we pointed out that these families often weren't aware of their rights to seek recourse in the courts or didn't have the resources to pursue that option. Child protection proceedings implicate the Charter rights of both parents and children – although rarely do our courts give much attention to these issues. 

In Ontario, we don't rely on a central provincial government agency for child protection. Instead, children's aid societies are local organizations governed by locally elected boards of directors, Indigenous societies and band councils. While provincial legislation and regulation dictate the broad framework in which these agencies operate, they have significant autonomy. The Ministry of Children, Community and Social Services' response to our April letter makes it clear there is little appetite within government to change how things work. The response largely passed the buck to individual children's aid societies, with the minister explaining what they had been "encouraged" to do, but implicitly acknowledging that the government would not be taking any responsibility for ensuring consistency and fairness throughout the system. This is a system that can have harmful impacts on the most vulnerable families, and it can lead to the permanent removal of a child from their parents. We must do better.  

Not long ago, Ontario's provincial child protection system was put under a microscope by the Motherisk Commission, which examined the harm caused to families by unreliable hair testing conducted at the Motherisk Lab at the Hospital for Sick Children. In dozens of cases, flawed and unreliable science led to the permanent removal of children from their parents' care – a gross miscarriage of justice. As the Commission's report noted: "The discovery that unreliable test results were used as expert evidence in child protection proceedings for so many years undermines the public's confidence in the fairness of our justice system, particularly with respect to how it treats vulnerable people."

Partly because the CCLA's confidence in the system's fairness was shaken, it decided to intervene in a recent COVID child protection case. The issue in Children's Aid Society of Toronto v. O.O. was whether parents could continue in-person visits with their infant who was staying with the child's grandmother while the CAS was investigating if the child needed protection. Although the CAS claimed there was no blanket policy in place suspending access, many families could not see their kids because of the fears associated with virus transmission. The agencies relied on discretion they had been given in access orders to suspend access altogether, without going to court. This left parents with a choice between accepting the CAS decisions or taking the time and expense to challenge the decision in court. 

In this case, the parents were taking all necessary precautions to limit their potential exposure to COVID-19, the grandmother wanted to facilitate the visits, and the infant child would not benefit from "virtual" visits with the parents. Nevertheless, based on a single note from the child's physician, which did not address the question of access, the court upheld the CAS decision to prohibit in-person visits. CCLA intervened at the appeal level, before Ontario's Superior Court of Justice. We argued that a public health emergency does not relieve the CAS or the courts of their obligations to base decisions about parental access on independent and reliable evidence. We also argued that the Charter dimensions of child protection proceedings meant that the burden was on a CAS to justify any plans to suspend access, which should require court approval. Significantly, in family law cases involving custody issues between divorced parents, courts consistently took the view that custody arrangements should remain the same, and parents that tried to prevent one parent from seeing the children because of COVID concerns were almost never successful. Parents in the child protection context were treated differently. In a disappointing decision rendered in November, the Ontario Superior Court dismissed all grounds of appeal and barely engaged with the case's Charter implications.

The Motherisk lab case is only the most visible illustration of problems with the system. Sadly, many of the Commission's recommendations remain unimplemented more than two years after their publication. The provincial government has done precious little to address the flaws that the Commission uncovered, even though those flaws have done serious harm to vulnerable families. We must avoid doing the same by ignoring the issues that the pandemic is highlighting today. CCLA will continue to look for opportunities to address these issues and fight for meaningful reforms to the system.