‘There is no timetable’: Courts refuse to let these three moms see children during pandemic

A First Nations mom, above, believes she had done enough to have her daughter returned to her care but a judge won't even allow visits during the COVID-19 pandemic. Submitted photo.

One mother just had her baby three weeks ago and hasn’t seen her child after the first week.

Another has been sober for eight months and can only FaceTime her six-year-old.

The mom of a six-month-old drops off breast milk every other day, but can’t go in the house to see her child.

Besides not being able to see their children, each mother all have one other thing in common: children’s aid societies, otherwise known as child welfare agencies in Ontario.

Each child was apprehended by the agencies and have convinced courts to restrict access to the children during the COVID-19 pandemic saying it’s not safe for the children or agency workers.

Each judge has left it up to the agencies to determine when visitations can resume, saying it’s in the “best interests” of the children to not see their parents at this time.

“When we stop children from having meaningful relationships with their parents for a lengthy period of time, we are harming those children,” said David Miller, of Miller & Miller Family & Child Protection Lawyers in Toronto.

“The harm is especially great for infants because they need in-person contact in order to form attachments with their parents, and video access is almost meaningless for babies and young children.”

Miller, who has more than 25 years of experience in child protection law, typically represents parents in cases of abuse or neglect alleged by agencies, but is not involved in any of the three cases. He has, however, been closely following how courts handle this matter.

“This may be palatable if it was for a short period of time, perhaps two or three weeks, but children have already been denied in-person contact with their parents for a month, and it looks like this could go on for two more months, four more months, six more months, we just don’t know. There is no timetable,” he said.

The court praised the mother of the six-year-old for bettering her life over the last eight months by getting off opioids, taking parenting courses, drug testing and other counselling to deal with her own childhood trauma.

“Everything you can think of to get my daughter back and they will not budge,” said the 29-year-old First Nations woman who lives in Barrie, Ont.

Yet, it’s not good enough.

Dnaagdawenmag Binnoojiiyag Child and Family Services convinced a judge it’s simply not safe for its workers and other family members to allow visitation during the pandemic.

“The Mother’s progress is so impressive that under normal circumstances, the court would have no difficulty ordering overnight weekend access. However, the court cannot overlook the fact that it is in the best interests of the children in the Agency’s care that the Agency comply with all COVID-19 considerations and precautions,” wrote Justice Sonya Jain in the March 30 decision.

“If a child is going back and forth from different households for access, the children and the foster parents and/or kin care providers are at risk for community spread of COVID-19.”

The mother said no one in her house is sick, or in the home where her daughter is staying. She told the court she is being over the top vigilant about taking precautions to prevent being diagnosed with the virus.

“When you go through something like this pandemic you just want to hold your child tight and I can’t do that,” she said.

She argued her daughter should be returned to her.

Prior to the pandemic in early March court records show the mom was close to getting her child back on a permanent basis, however during a weekend visit the mom allowed her daughter to sleep at a friend’s home about a 30-second walk away.

The next morning her daughter walked home alone. The agency found out and canceled visits. However, it’s also confirmed in court records that the child left school early when in the care of the agency and police had to be called.

“You are under a microscope. Looking back I shouldn’t have let her sleepover but I can see the home from my front window,” said the mom. “She missed her friend.”

In the case of the infant, the non-Indigenous mother got about a week with her child in hospital until she was discharged. Mom and baby were forced to go separate ways after the child was apprehended by Simcoe Muskoka Child, Youth and Family Services.

The child was placed with an aunt.

“COVID-19 is a particularly nefarious virus. It is a hardy virus, staying on some surfaces for more than two days. It is easily transmitted from person to person. It can cause death in a significant number of cases, and anecdotal evidence makes it apparent that any person of any age is at risk from this virus,” wrote Justice John McDermott in the April 6 decision.

“I realize that this deprives [the child] of any meaningful contact with her mother, and also deprives the Respondent Mother of time with her daughter in this very important time of life for her daughter. I am not dismissive of the losses to both mother and daughter that this entails. I am only saying that the health and safety of everyone involved in the access (including the mother and child, as well as the access supervisor) is more important than the cost to both [child and mother] that will result from the loss of access.”

The mother has two other children that were apprehended after a case of domestic abuse in the home. She is alleged to suffer from mental illness and made questionable comments after the two children were taken according court records. Those records also show she is known to overcome her mental illnesses.

APTN News contacted the agency to see when the mother may be able to see her newborn.

“Due to privacy we cannot speak to any specific case situations,” said spokesperson Melanie McLearon.

“As the pandemic evolves, so are our service practices. We will continue to monitor the situation and take all measures to keep community members and staff safe and healthy as well as review individual circumstances on a case-by-case basis to support children, youth and families through this unprecedented time.”

Unlike in most courts, the burden of proof is typically on the parents to prove they are not guilty of abuse or neglect and often after their children have already been removed from their care for extended periods of time.

That’s the case with the mom, and father, of the six-month-old who went to court last week to seeking to see their child five hours a day in the maternal grandmother’s home who has been caring for the child since January.

The Children’s Aid Society of Toronto apprehended the child at three-months-old after the parents brought the child to hospital who was later diagnosed with brain, retinal and spinal hemorrhages, as well as some bruising on his body.

The non-Indigenous parents deny harming the child and police continue to investigate.

The agency begin allowing visitation soon after the child was placed with the grandmother in January. Access increased to the point the parents could visit the child supervised by the grandmother in her home until March 18 when the agency stopped all in-person visits across the board.

The parents have only had access through video chats despite court records confirming the parents and the grandmother were complying with COVID-19 protocols of the government and health officials.

The grandmother, who is an associate college professor, also supported the parents visiting the child each day.

“There is no acknowledgement in the affidavits of the parents or grandmother of a recognition of the fragile and vulnerable condition of this infant,” wrote Justice Roselyn Zisman in her April 9 decision. “It appears that the benefit of face to face contact is more for the benefit of the parents and perhaps to ease the grandparents’ responsibility of caring for this child.”

Miller reviewed this case for APTN and said it “minimizes the harm being done to children when they are prevented from having meaningful relationships with their parents.”

He’s also seeing how family court is treating these parents more harshly than others, where there hasn’t been a finding of guilt.

“The court criticized the parents and the grandparents for requesting extensive in-person access, stating that by making the request, they were demonstrating they don’t understand the COVID-19 risk. There has been no such criticism in cases involving separated families. Only in a child protection court would a parent be criticized for having the audacity to ask to see their children,” said Miller, who is also the treasurer of the Ontario Association of Child Protection Lawyers.

“When there is no children’s aid society as a party in the case, the courts have been virtually unanimous in saying that children should continue in-person contact with both parents, despite the extra risk of infection in seeing both parents, unless there is evidence that a parent is not following COVID-19 protocols,” he said.

He the discriminatory approach disproportionately affects Indigenous families, Black families, racialized families and poor families: “Who have historically been unfairly targeted and overrepresented in the child protection justice system.”

Producer Nation to Nation - Ottawa

Ken is an award-winning investigative journalist with a decade of reporting experience who played a key role in breaking the Bruce Carson story on APTN in 2011 which led to an award from the Canadian Association of Journalists. Ken has worked out of APTN’s Ottawa bureau since October 2012.