M. Elchami

In a child protection proceeding under Part V of the Child, Youth and Family Services Act, the court rejected a jurisdictional challenge based on the five-day rule in s. 88, holding that the technical place-of-safety event occurred when the agency completed the placement assessment and documentation, not when the child was initially left with the paternal grandmother during the investigation.

The court nevertheless sharply criticized the agency's failure to make reasonable efforts to locate and engage the mother, its failure to serve her, and its procedural unfairness in excluding her from the process after intimate partner violence allegations arose.

Applying the temporary care and custody test, the court found a real risk of harm from the child's exposure to domestic violence and concluded that a temporary protection order was necessary.

The least disruptive placement consistent with protection, and the placement priority for an Indigenous child, favoured temporary placement with the mother under supervision rather than with the paternal grandmother.

The father received supervised discretionary access, with unsupervised access not to be considered until he began a PARS program or equivalent counselling.

The Children's Aid Society brought a motion seeking to terminate a father's access to his child and for restraining orders protecting the child's grandparents and Society staff from the father.

The court dismissed the request for a restraining order in favour of the grandparents due to insufficient evidence of threats.

The court also held that the statutory framework under the Child, Youth and Family Services Act does not permit a restraining order in favour of the Society.

The court declined to terminate the father's access, finding insufficient evidence of harm to the child, but imposed strict conditions on his access, including a requirement that the Society hire a professional supervised access service and that the father communicate with the Society only through its legal counsel.

The applicant father filed a complaint with the Child and Family Services Review Board alleging the respondent children's aid society failed to provide reasons for cancelling access and apprehending his child.

The respondent argued the board lacked jurisdiction under s. 120(8) of the Child, Youth and Family Services Act, 2017 because the issues were already before the court in ongoing child protection proceedings.

The board agreed, finding that the court had already addressed the reasons for apprehension and the ongoing access issues, including the applicant's escalating behaviour.

The complaint was dismissed for lack of jurisdiction.

The paternal grandmother, S.V., moved to be added as a party to child protection proceedings concerning her grandchild, A.M., and for access.

The court found that S.V. met the definition of "care provider" under the federal Act Respecting First Nations, Inuit and Métis Children Youth and Families, and therefore had a right to party status from the outset.

The motion to add S.V. as a party was granted, but her request for access was dismissed without prejudice as she lacked standing to seek substantive relief prior to being added as a party.

The court noted the agency's failure to name S.V. as a party initially caused prejudice.

The Children's Aid Society brought a protection application regarding a six-year-old Indigenous child due to the mother's severe and ongoing alcohol abuse.

The child had been residing with the maternal grandmother under a voluntary safety plan.

The Society and the father sought to have the child placed in the father's care, while the mother sought to have the child remain with the maternal grandmother under a supervision order.

The court found the child in need of protection and determined that the mother had 'charge' of the child prior to intervention.

However, returning the child to the mother was unsafe.

The court concluded it was in the child's best interests to be placed in the custody of the father, who offered long-term stability and supported the child's Indigenous heritage.

A final custody order was granted to the father, with supervised parenting time for the mother and contact time for the maternal grandmother.

The applicant child protection agency sought to qualify an expert in child maltreatment.

The court conducted a voir dire to determine the admissibility of the expert's opinion evidence.

The court found that "child maltreatment" as a general field of scientific inquiry lacked threshold reliability as a novel science, as there was no evidence of tested theories/techniques, peer review of the general discipline, or established standards for information quality.

Furthermore, the court determined that the expert was engaged for litigation purposes, not as a "participation expert" and thus failed to comply with Rule 20.2(2) of the Family Law Rules.

Consequently, the expert was not qualified, and his report was not admitted, as the risks of admitting unreliable evidence outweighed any benefit.

The Children's Aid Society of Brant brought a motion for summary judgment seeking continued protection findings for the child T.E.H., an order for deemed custody to the paternal aunt L.H., specific access orders for the mother and siblings, no access for the mother's partner, and discretionary access for the father.

The court found T.E.H. to be in continuing need of protection due to risk of emotional harm.

It granted deemed custody to the paternal aunt, L.H., prioritizing the child's best interests and Indigenous cultural identity.

The court made temporary access orders for the mother and siblings, but declined to make a "no access" order for the mother's partner or a discretionary access order for the father, emphasizing the court's obligation to impose specific terms and conditions for access.

The Respondent mother sought a mistrial in a child protection proceeding after an off-record exchange was inadvertently broadcast in the virtual courtroom, raising concerns about an unknown third party and potential drug transactions.

The mother argued the judge became a compellable witness and the information was prejudicial.

The Society and father opposed, arguing against delay and that the judge could disabuse herself of the information.

The court dismissed the motion, finding the judge was not compellable, the information was not properly before the court, and the judge could disabuse herself of it.

The court emphasized that mistrials are a last resort and that continuing the trial was in the best interests of the child and the administration of justice.

The Applicant Society brought a motion for summary judgment seeking findings that three children (K.M., M.B., and J.B.) were in need of protection and should be placed in the Society's extended care.

The children's mother opposed, proposing a customary care agreement.

The court found ample evidence of the children being in need of protection due to physical and emotional abuse and sexual assault.

The court granted the Society's motion, finding no genuine issue for trial, and ordered the children into extended Society care, rejecting the customary care agreement as it could not be coercively imposed and was not agreed upon by all parties.

The applicant Ogwadeni:deo sought to withdraw an amended child protection application and replace it with a formal customary care agreement, despite the biological parents not having signed the agreement.

The Six Nations Band argued that its governing resolution, enabled by the new federal legislation (Bill C-92), authorized the Band to sign the customary care agreement on behalf of the parents.

The court denied the motion to withdraw the protection application, finding insufficient evidence regarding the child's welfare and best interests, and noting the lack of court oversight since the initial temporary order in 2018.