Access at the Discretion of a Party: Child Protection Proceedings (CYFSA) vs Domestic Matters (CLRA)

In a child protection matter, where the court declines to return a child to the parent(s) from whom she was taken with or without a supervision order, the court has several options ranging from placement with family/kin to placing the child in extended society care. In these instances, there is always a need to determine the biological parents’ access to the child. Often, the Society seeks an order that the parents have no access. At the times when the Society agrees that access to the biological parents is in the child’s best interest, what had become staple is for the society to ask that such access be at the discretion of the society as to type, frequency and duration. For the most part, the courts made these orders as requested by the Societies

Recently, in J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630, the Divisional Court has clarified the correct legal position when it held at paragraph 48 that it is an error of law for a court to delegate all discretionary decisions on the type, frequency and duration of the children’s access to  say their mother and sibling to the Society. The scenario in J.S.R. is a final order following a long summary judgement motion. This would be no different from disposition following a trial. The import of this decision is that, unless this decision is overturned or modified by the Court of Appeal, the courts in Ontario can no longer order that access to children found in need of protection shall simply be at the discretion of the Society. I will equally posit that this will also apply to temporary orders.

The Question here is whether this prohibition of leaving access to children in a child protection proceeding at the discretion of the Society is applicable to parenting orders under the Children’s Law Reform Act or access pursuant to section 102 of the Child Youth and Family Services Act? This was a question posited by a judge in a recent matter in which we were involved. I do not see that, given the reasoning in J.S.R., the court has jurisdiction to delegate decision making regarding access even in CLRA matters to a party or non-party. Firstly, the cases relied on by the Divisional court in J.S.R. such as C.A.S v. K.D.D., 2020 ONSC 511 at para 45 and 46 stand for the proposition that “a court cannot and should not delegate its exercise of discretion when ordering access.” It is the court’s duty to balance and evaluate evidence and make a decision based on factors it is required by law to consider. The Divisional court in J.S.R. also relied on  A.G. of Canada v. Brent, [1956] SCR 318 at 321 for the proposition that “A judicial decision that delegates the discretionary elements of access including type, frequency, and duration to a Society offends the principle against sub-delegation.”

The foregoing should be sufficient reasoning to find that the court should not delegate decision making regarding access or parenting time to a custodial parent under the CLRA. If however, anyone would still argue the point, the formal basis of the Divisional court’s decision on this issue is that the power to delegate is not given by statute. The Divisional Court stated as much at paragraph 49: 

Section 104 of the CYFSA makes it clear that it is the court’s obligation to impose the terms and conditions of an access order. This is a discretionary decision. Nothing in the language of sections 104 or 105 of the CYFSA either explicitly or implicitly includes the power to sub-delegate the decision as to terms or conditions of access to a nonjudicial actor such as a Society.

When one applies the foregoing reasoning to the Children’s Law Reform Act it becomes clear that nothing in the language of the CLRA either explicitly or implicitly includes the power to delegate. Subsection 28(1)(a)(ii) of the CLRA provides that “The court to which an application is made under section 21, may by order grant parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b).” As well, Subsection 28(1)(c)(i) of the CLRA provides that such a court may make any additional order the court considers necessary and proper in the circumstances, including an order limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child. As is immediately apparent, there is nothing in the language of the CLRA that permits the delegation of decision regarding parenting to say another parent. The use of the permissive language ‘may’ is not to be read to mean discretion to delegate. It simply confers discretion on the court to make or not make parenting orders.