Children’s Aid Society of Ottawa v. I.L. (Mother)
CITATION: Children’s Aid Society of Ottawa v. I.L. (Mother), 2012 ONSC 2808
DIVISIONAL COURT FILE NO.: 11-DC-1717
DATE: 2012/05/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. Wilson, Swinton and Lafrance-Cardinal JJ.
CONCERNING the Child and Family Services Act, c. C-11, and subsequent amendments,
AND CONCERNING the children A.I.B. (born […], 2004) and E.L. (born […], 2006)
BETWEEN:
CHILDREN’S AID SOCIETY OF OTTAWA
Applicant (Respondent in appeal)
– and –
I.L. (Mother)
Respondent
- and -
S.C. (Father of E.L.)
Respondent
-and -
D.B. (Father of A.K.B.)
Respondent
- and -
D.N. (Maternal Grandmother)
Respondent (Appellant in appeal)
- and -
LES ALGONQUINS DU LAC BARRIERE
Respondent
Julie Daoust, for the Applicant (Respondent in appeal)
Not appearing
Not appearing
Not appearing
Cedric Nahum, for the Respondent D.N. (Maternal Grandmother) (Appellant in appeal)
Not appearing
HEARD IN OTTAWA: May 8, 2012
Translation of the French version of the Reasons for Judgment dated and released May 11, 2012.
THE COURT
REASONS FOR JUDGMENT
[1] The appellant is the maternal grandmother of two children, A.I.B. and E.L., in this child protection proceeding. The appellant challenges the decision of Justice Kane of the Ontario Superior Court of Justice, dated February 7, 2011.
[2] There are three issues in this appeal:
(1) Did the motions judge err in determining that the Children’s Aid Society of Ottawa (“CAS”) had the jurisdiction to apprehend the children in Quebec in collaboration with the Centre jeunesse de l’Outaouais (“CJO”)?
(2) Did the motions judge err in his conclusion that the habitual residence of the children was in Ottawa?
(3) Did the motions judge correctly conclude that the Ontario Superior Court of Justice in Ottawa had jurisdiction to proceed with the child protection proceeding?
(1) Did the motions judge err in determining that the CAS had the jurisdiction to apprehend the children in Quebec in collaboration with the Centre jeunesse de l’Outaouais (“CJO”)?
[3] The motions judge concluded that the apprehension of the children in Gatineau by the Ottawa CAS was legal. We agree with this conclusion. Without doubt, there does not exist any statutory authority permitting the CAS to apprehend children outside their territory in another province. However, this is a common problem in communities sharing a border with two different provinces.
[4] In this case, the CAS of Ottawa recognized their jurisdictional limitations and obtained the consent and assistance of the CJO to apprehend the children in Gatineau. The Ottawa CAS advised the CJO of their concerns about the two children and began communicating with the CJO as soon as the children were again in Quebec. As found by the motions judge, the facts are clear that the children were temporarily placed with their maternal grandmother in Gatineau while their mother resided in Ottawa while receiving assistance from the CAS. The ultimate plan was that the children would return to live with their mother in Ottawa.
[5] Matters escalated in June 2009 when the grandmother advised a worker from the CJO that she could no longer handle the children, that she was overwhelmed, and that she wanted the children be placed in a foster home. Meanwhile, the CAS had concerns about the quality of care the children were receiving from their grandmother, and the viability of the mother’s plan to have the children reside with her in Ottawa.
[6] On July 9 and 10, 2009, in the presence of a representative from the CJO, the CAS attended the residence of the grandmother in Gatineau to apprehend the children. A.I.B. was apprehended and the next day E.L. was apprehended and like his sister, he was brought to a place of safety in the province of Ontario.
[7] Notwithstanding that there is no statutory authority authorizing such a scenario, we agree with the conclusion of the motions judge that the apprehension of the children in these circumstances was legal. The collaborative approach between the CAS and the CJO is a practical solution that best serves the interests of children when the CAS works in a region that borders another province, and when the children are habitually resident in the jurisdiction of the CAS.
[8] We therefore reject the first argument, and we confirm the conclusion of the motions judge that the CAS has the power to apprehend children in another province with the consent and cooperation and working in tandem with the child protection agency in Quebec when the children are habitually resident in the jurisdiction of the CAS.
(2) Did the motions judge err in his conclusion that the habitual residence of the children was in Ottawa?
[9] The motions judge concluded that the children’s habitual residence had been in Ottawa since November 2007. This conclusion is amply confirmed by the facts, including:
• from November 2007 to the end of February 2009, the CAS worker had been working with the mother to assist her with her parenting abilities;
• in February 2009, the children were temporarily placed with their maternal grandmother in Gatineau. The mother chose to place the children with their maternal grandmother, rather than place them in a foster home;
• the representative from the CAS continued to have contact with the children, the mother and with the appellant by going to the appellant’s home;
• during this period, the CAS worker wrote letters to different organizations confirming that the plan for the children was to have them return to live with their mother in Ottawa;
• during this same period the mother took all possible steps to maintain her welfare benefits from the Ontario government and to maintain her subsidized housing;
• the children maintained their OHIP cards and continued to receive medical care in Ottawa. Both children require specialized medical care.
[10] The appellant argues that the mother returned to live with the appellant on July 5, 2009, changing both her habitual residence and that of the children to Gatineau, Quebec effective July 5, 2009.
[11] The motions judge rejected this argument. He carefully considered all of the evidence and concluded that the children maintained their habitual residence in the province of Ontario. There is no manifest and overriding error.
(3) Did the motions judge correctly conclude that the Ontario Superior Court of Justice in Ottawa had jurisdiction to proceed with the child protection proceeding?
[12] As the children were habitually resident in Ontario, the Superior Court of Justice of Ontario has jurisdiction to deal with this child protection proceeding.
[13] The caselaw is clear that even if the apprehension was illegal (which was not the finding of the motions judge or of this court), the Ontario Superior Court of Justice has jurisdiction to hear the motion for child protection, as the children were habitually resident in the Province of Ontario at the date of their apprehension.
[14] The apprehension may be judged to be null or illegal, without making the motion for protection ultra vires. (G.A. v. Alberta (Director of Child Welfare) (2002) 2002 ABQB 212, 25 R.F.L. (5th) 229, CarswellAlta 280 ABQB 212 at para 9; Kenora-Patricia Child and Family Services v. A.M., 2005ONCJ 39, CarswellOnt 1208, at para 55)
[15] Moreover, there are several interim orders starting from July 14, 2009 and continuing on to the trial in June 2011, which confirm the jurisdiction and the competence of the court in Ontario. The questions in this appeal were not raised by the grandmother until January 3, 2011. Given the extensive delays, it appears that the motive for this appeal is a strategy by the appellant to reopen this file, which completely ignores the best interests of the children. Furthermore, this appeal is indirectly a collateral attack on several orders, including the final order of which granted custody to an aunt and uncle of the children, and this order has never been appealed.
[16] For these reasons, the third ground of appeal is also dismissed.
Costs
[17] The appellant has not been successful as all grounds of the appeal have been dismissed. However, the appellant has no ability to pay costs, and any amount awarded would be onerous. This appeal has canvassed important public issues. In these circumstances, there will be no order as to costs.
J. Wilson J.
Swinton J.
Lafrance-Cardinal J.
Released: May 11, 2012
CITATION: Children’s Aid Society of Ottawa v. I.L. (Mother), 2012 ONSC 2808
DIVISIONAL COURT FILE NO.: 11-DC-1717
DATE: 2012/05/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. Wilson, Swinton and Lafrance-Cardinal JJ.
CONCERNING the Child and Family Services Act, c. C-11, and subsequent amendments,
AND CONCERNING the children A.I.B. (born […], 2004) and E.L. (born […], 2006)
BETWEEN:
CHILDREN’S AID SOCIETY OF OTTAWA
Applicant (Respondent in appeal)
– and –
I.L. (Mother)
Respondent
- and -
S.C. (Father of E.L.)
Respondent
-and -
D.B. (Father of A.K. B.)
Respondent
- and -
D.N. (Maternal Grandmother)
Respondent (Appellant in appeal)
- and -
LES ALGONQUINS DU LAC BARRIERE
Respondent
REASONS FOR JUDGMENT
The Court
Released: May 11, 2012