WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: 48/12 Date: 2012-05-30 Location: Sault Ste. Marie Ontario Court of Justice

In the Matter of: Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

Children's Aid Society of Algoma Anthony Marrato, for the Children's Aid Society

— And —

S.P. Kenneth R. Davies, for S.P. (mother)

L.R. Eric D. McCooeye, for L.R. (father)

Heard: May 16, 2012

Before: Justice John Kukurin

Decision

[1] Nature of the Motions

This is a decision on two motions:

(a) at Tab 2, of the applicant society, for temporary care and custody of four children in favour of the society, and for access to their mother and father subject to conditions and restrictions; and

(b) at Tab 6, of the father, for placement of the four children with himself, or in the alternative, for an order for unsupervised liberal paternal access containing specific terms as to frequency, duration, location and level of supervision.

[2] Background to the Apprehension

The children have been in the care of the society since they were apprehended almost two months ago. An interim without prejudice order was made on March 27, 2012. The issues of temporary care and custody and interim parental access were deferred to permit the parents to retain counsel and respond to the society's motion to May 16, 2012 on which day I heard arguments on these issues.

Background

[3] The Family History

There are four children: L. (age 15 next month), D.1 (11), K. (10), and D.2 (3). The family has been the subject of society investigations for over a decade. There have been numerous reports or referrals to the society over this period – 21 in all – from various persons in the community with respect to one or another of the members of the family. These contacts with the society have variously been in relation to reports of violence, arguments, yelling and shouting, drinking, intoxication, physical abuse to a child, threats, inadequate parental supervision, drug abuse, drug dealing, and lack of food for the children.

[4] Prior Society Involvement

The society has, in about 50 paragraphs, provided a narrative of referrals made of these various incidents. Many of them are from anonymous or unidentified sources. Some did not warrant the opening of a society file; some did not even warrant starting an investigation. Of those investigated, the majority resulted in closing endorsements such as "concerns not verified, not substantiated, no protection concerns, no evidence of involvement, insufficient evidence" or simply "file closed". In fairness, some of the society's investigation closed because of "parental non-cooperation" or "father resistant to society".

[5] No Prior Apprehensions

What is apparent from this lengthy history gleaned from the society's files is that from the year 2000 until March 2012, not one of these children was apprehended by the society. Not one was the subject of a child protection case. The society attended, mainly at the home of the father, on numerous occasions, sometimes with police officers, and almost invariably ended up closing its investigation file with no court proceeding commenced.

[6] Parental Roles and Responsibilities

Of the two parents, the mother appears to be the one with the most problems. Chief among these are her abuse of alcohol and her mental health issues, followed closely by a propensity to become involved in conflicts, mostly domestic, but some with neighbours. The mother was more amenable to cooperating with the society workers than was the father. When she was resistant, it was mainly on instructions from the father, or to support a position he had taken.

[7] Father's Attitude Toward Society Involvement

The father, on the other hand, was not very open to society personnel intruding in his home, in his life, or in his family. Perhaps he had some justification for his attitude; perhaps not. The society was statutorily mandated to investigate certain referrals made to it. He didn't like the way some of its workers carried out this function. They, for the most part, didn't like his attitude and perceived it as uncooperative. Each felt the other was rude.

[8] Living Arrangements

In terms of protection problems, however, the father represented a much lesser source of these than did the mother. The mother and father had evidently cohabited for a number of years. However, by approximately mid 2005, the three boys, L., D.1 and K., were living with their father. Their mother had become an access parent to them, and had her residence elsewhere. This, however, was not a black and white arrangement. The mother was at the father's home very frequently, often staying overnight. It was this presence of the mother at the father's home that often resulted in neighbourhood referrals to the society.

[9] Sole Incident Involving Father's Care

There appears to be only one referral related exclusively to care by the father alone. This arose from a school report that the father had struck K. with a stick. An investigation concluded that there was no inappropriate discipline at the father's home. The incident involved a marshmallow stick at an outdoor campfire placed to stop K. from running around the fire. Apparently, he received a bruise on his leg accidentally. The society thereupon closed its investigation.

[10] Custody of D.2

There are four children. The youngest is D.2, age three. I conclude from all of the evidence filed that D.2 was in the mother's care and custody. Although both of them spent a lot of time at the home of the father and the three boys, the mother had her own residence, in a distant part of the city, paying her own rent to her own landlord. I infer that the mother was responsible for D.2 and exercised custodial rights with respect to D.2. The father was a support to the mother on many occasions. He was the primary caregiver to the three boys, not to D.2. All of this is of some importance statutorily.

[11] Events Leading to Apprehension – February 17 to March 5, 2012

On February 17, 2012, a neighbour (unidentified by name) of the father apparently reported to a city housing official who, in turn, reported to the society, that she (the neighbour) had heard "domestics" – the mother and father yelling and screaming. The society opened a file to address these domestic concerns. It was not until five days later, however, that anyone from the society actually attended the home - to find no one there. Seven days later, another visit – same result. The next day, a worker went to the mother's home – no one was there either. Eventually, the mother and the society worker connected by telephone and made an appointment for March 1, 2012. That failed to materialize and a new meeting time between the mother and the society was set up for March 5, 2012 at the home of the father. The worker had, in the interim, interviewed K. at his school, and D.1 at his school. Neither recounted much of anything that the society didn't know or didn't suspect already. The mother was apparently cooperative and answered the worker's questions when they did meet at the father's home. The father was not there at the time.

[12] Father's Response to Society Involvement

The society still wanted to speak with the father, presumably about the "domestic" referral from the unidentified neighbour at least two weeks before. He did contact the society leaving a voicemail message that he was upset that they went into the school of the boys to interview them, that they had looked into his fridge and his cupboards, and wanted to look in his bedroom, when he wasn't home. He accused the society of being rude and said that he had nothing to say to them.

[13] Society's Initial Response

This occurred on March 6, 2012. The society decided to bring a child protection application for a supervision order returnable on March 28, 2012.

[14] The Incident at Ontario Works – March 22, 2012

However, on […], 2012, at about 2 p.m., a call was placed to the society by the manager at Ontario Works, an employee of which had reported to him that the mother was there with the children K. and D.2, and that she was stumbling and had an odour of alcohol. Sure enough, when a society worker arrived, he noted the odour of alcohol, observed the mother slurring and stumbling over her words, and concluded she was under the influence of alcohol. The mother in fact admitted candidly:

"Today is my anniversary, and I had a glass of wine with [the father] L. before I left."

Sometime later that day, the mother corrected this to "two glasses of red wine mixed with fruit juice earlier today".

[15] Apprehension of K. and D.2

The society apprehended both K. and D.2 from the mother at the Ontario Works office – without a warrant, and without contacting the father.

[16] Apprehension of D.1

The society next went to D.1's school, apprehended him, presumably before his classes ended that day, and brought him to the society offices – without any apprehension warrant.

[17] Apprehension of L.

The society then went to the father's home accompanied by two police officers. By this time, the child L. had arrived at home from school. The father had not yet returned home. L. did not initially answer the door. When he did, he was apprehended. He did not want to leave. He was taken away by the police. The society did not obtain any warrant to apprehend L.

[18] Placement and Access Arrangements

All children were placed in society foster homes but not all in the same home. Parental access pursuant to the "without prejudice" order made March 27, 2012 has taken the form of one weekly visit, on Tuesday evening, at the society's office, fully supervised by access supervisors employed by the society. The father complains in his evidence that the access room is small and cramped with six persons, especially over three hours, the duration of each weekly visit.

[19] Ritalin Concerns

There is some evidence with respect to the drug Ritalin prescribed for L. and K. This evidence was, and still is, somewhat confusing. It did not seem to be a factor in the decision to apprehend these children. Whether it is, or is not, a child protection concern is uncertain.

[20] D.2's Medical and Dental Condition

D.2 was taken by the society for a medical and a dental check-up after she was apprehended. She was up-to-date on her immunizations, and she did not have any medical needs. Her dentition, however, was poor. She is reported to need four extractions and seven or eight fillings. The father stated that he had expected the mother to be attending to D.2's dental needs. He claims he was not aware of any dental issues – no one, not even D.2, had complained about any.[1]

[21] Kinship Placement Proposals

There have been other developments since the apprehensions. The parents had proposed a maternal aunt, or alternatively, another couple living in Thessalon, as temporary kin caregivers. However, the society declined to proceed with any kinship assessment because it had had prior involvements with these persons.

The Issue

[22] Nature of the Application

The society did not proceed with the "direct" child protection application it was preparing in early March. Its claim in its present application is not for a supervision order. It is for society wardship for six months. Before a protection order such as this can be made, there must first be a judicial finding that the child in question is a child in need of protection.

[23] Positions of the Parties

In this case, the society is relying on grounds of risk of physical harm for all four children as the basis for a finding that they are children in need of protection. The mother does not specifically address her position on a finding. I infer from her Answer that she does not oppose it. From the father's Answer, I infer that he opposes any finding.

[24] Scope of the Motions

The two motions before this court however, are concerned only with what temporary orders the court should make with respect to the care and custody of these children pending a final determination of the child protection application, and what orders it should make for access, if any.

The Law

[25] Statutory Framework

The statute that governs child protection proceedings is the Child and Family Services Act (the Act). When a society makes an application to determine if a child is in need of protection, the Act requires the court to hold a hearing to make that determination. However, it may be a long time before that hearing can be held, and before that determination can be made.

[26] Temporary Care and Custody Orders

In the meantime, the case is adjourned usually many times. The court is required to make a temporary care and custody order each time the case is adjourned. The first such order was made "without prejudice" on the fourth day after the children were apprehended. At the time, the parents had not yet retained counsel, had not filed any evidence, and only had the assistance of Legal Aid duty counsel. That "without prejudice" qualification to the temporary care and custody order made initially has persisted to date. In the interim, both parents have retained counsel. Each has filed an Answer and Plan of Care. The father has filed evidence in response to the society's temporary care and custody motion (Tab 2), and in support of his own temporary care and custody motion (Tab 6).

[27] Statutory Options for Placement

The Act sets out, in section 51(2), four options the court is given with respect to placement of a child in the context of a temporary care and custody order. The first two (paragraphs (a) and (b)) involve non-removal orders, that is, temporary care and custody orders in favour of whoever had "charge of the child immediately before intervention". The last two (paragraphs (c) and (d)) are removal orders. These involve ordering temporary care and custody in favour of someone other than the person who had charge immediately prior to the society's intervention (in this case by apprehension). The placement, if under section 51(2)(d) must be in favour of the society, or, if made under section 51(2)(c) can be in favour of some other person or persons.

[28] The Two-Part Test

There is a two-part test in section 51(3) that is applied in deciding whether the temporary care and custody order should be a removal order or a non-removal order. The onus falls on the society to satisfy the court, with admissible evidence, that both parts in this two-part test have been met if it is seeking a non-removal order. If it fails to do so, with respect to either part of this two-part test, the court can only make a non-removal order. If the child has been apprehended, a non-removal temporary care and custody order means returning the child to the person who had charge immediately prior to the apprehension.

[29] Admissibility of Evidence

In terms of the evidence at such temporary care and custody hearings, the court is statutorily permitted to admit and to act on evidence it considers credible and trustworthy in the circumstances.

[30] Kinship Placement Preference

Should the society satisfy the court with the evidence, on the balance of probabilities, that both parts of the section 51(3) test have been met with respect to a child, there is yet another hurdle before the court can grant temporary care and custody to the society. This is a statutory requirement on the court to consider a placement under section 51(2)(c) with a relative of the child or with a member of the child's extended family or community, if this is in the child's best interest. Typically, these are referred to as "kinship" placements. It is worth noting that it is an obligation imposed on the court. It appears to be generally accepted that placement with kin ranks ahead of placement with a society where a removal order is going to be made. This statutory preference, perhaps even a legal presumption, in favour of kin placement over society placement is contingent on not only satisfaction of the two-part test in section 51(3), but also on the kin placement being in the best interests of the child.

[31] Best Interests of the Child

Whenever the court is directed to make a determination in the best interests of a child, it must take into consideration a number of circumstances, to the extent that they apply in a particular case. These circumstances are listed in clauses (1) to (13) of section 37(3) and in section 37(4) of the Act if the child is an Indian.

[32] Access Orders

A removal order may contain provisions for any person's right of access to the child who is the subject of a child protection proceeding. Such access orders are made pursuant to section 58 of the Act, which authorizes the court to make any such order where an application is formally made with respect to access, or when the court makes virtually any order under Part III of the Act. Any order that the court makes with respect to access must necessarily be made in the child's best interests. This requires once again, but in the context of access, the judicial consideration of those circumstances set out in section 37(3) of the Act (and section 37(4) if applicable).

[33] Legal Representation for Children

Another mandatory consideration involves independent legal representation for a child who is the subject of a child protection case. Certain circumstances give rise to a deemed desirability for such representation. In the present case, an order was made directing legal representation for all four children by the Office of the Children's Lawyer (OCL). Regrettably, the panel lawyer assigned to represent these children was only recently appointed, did not have time to even speak with the children much less embark on any investigation or inquiries, and consequently did not participate at the hearing of these temporary care and custody motions.

Judicial Findings and Analysis

[34] Determination of "Charge"

The first, and very crucial, determination in this case has to do with who had "charge" of each child immediately prior to the society's apprehension. I do not accept the suggestion, if indeed it was intended, that all four children were in charge of both parents. I am satisfied, on the totality of the evidence, that the father had charge of L., D.1 and K., and that the mother had charge of D.2.

[35] Evidence Supporting the "Charge" Determination

The following evidence accords with these findings:

• the mother and D.2 had their own separate residence;
• the mother appears to be D.2's principle caregiver;
• when the mother left the father's home to return to her residence, or to go to a women's shelter, she invariably took D.2 with her;
• when the father had D.2 in his home, it was always with the mother present there as well, or it was on a temporary basis only (to assist the mother, for example);
• the father believed that the mother was responsible for D.2's needs and her care, such as dental care;
• the father concedes that the mother had "apparent custody".

[36] Significance of the "Charge" Determination

Who had "charge" is critical if a non-removal order is made with respect to a child. This determination should be specific, and should be specific for each child. Regardless of what kind of temporary care and custody order is made, it is inevitable that there will be (probably more than one) access order made. Accordingly, the person who had charge is at least peripherally connected to who is to be granted access.

[37] L. and D.1 – Failure to Meet the Two-Part Test

The society has not met the section 51(3) two-part test with respect to either L. or D.1. I am not satisfied, on the evidence, that there are any reasonable grounds to believe that there was, at the time each of these two children were apprehended, or in any of the time since then, any risk that either would suffer harm. This negative finding on the first part of the two-part test makes the second part of the test mute. However, if I had to make a determination on whether these two children could be adequately protected by returning them to their father with a supervision order in place, I would conclude that they could.

[38] Society's Change in Position

The society admits that in early March, it was in the process of preparing a child protection application in which it was requesting a supervision order. A supervision order is a "non-removal" order. It contemplates that the child will remain with its usual caregiver, but with the society having a supervisory role with respect to that child's care. It is logical that whatever temporary care and custody order it was intending to seek, it too would be a non-removal order. In the circumstances of this case, it is reasonable to conclude that this decision of the society was precipitated by the indirect report from an unidentified neighbour of a "domestic" at the home of the father on February 17, 2012, and was further solidified by the father's voicemail on March 6, 2012 which effectively told the society that he did not want to speak with its workers, and that he did not want them at his home. This conclusion is supported by the fact that the prior most recent society involvement had been in mid November 2011, some three and one-half months previously, when the society didn't even embark on a protection assessment.

[39] Inference Regarding Statutory Prerequisites

The inference to be made from this evidence is that the society was unable to meet the statutory prerequisites of the two-part test in section 51(3) at the time that it was preparing an application for a supervision order. This was despite the almost dozen years of society involvement with this family, the 21 community referrals it had recounted in its evidence, and the less than model cooperation it had enjoyed, especially with the father, for a number of years.

[40] The Critical Question

So what happened between early March and March 22, 2012, when the children were apprehended, that was so significant that it caused the society to change its claim from a non-removal order to a removal order? Even more than this, what convinced the society that it had to apprehend these four children?

[41] The Only Significant Event

The only event recounted in the evidence was the mother's attendance at the Ontario Works office on March 22, 2012, with K. and D.2 in her direct care, when she was observed and considered to be under the influence of alcohol.

[42] Apprehension of L. and D.1 Requires Scrutiny

While this incident may well have been a proper basis for finding K. and D.2 to be children in need of protection, it is somewhat more remote as an evidentiary basis for finding L. and D.1, both of whom were in their classes in their schools and nowhere near their mother. This requires some judicial scrutiny of the evidence, and a more careful consideration of the submissions of the society as to why the apprehension of L. and D.1 were justified then, and why they should remain in the temporary care and custody of the society now.

[43] Apprehension of K. and D.2 Was Reasonable

With respect to K. and D.2, the apprehension of these two children seems a reasonable step for the society to have taken. They could not remain in the care of their mother if she was showing clear signs of intoxication from alcohol. There was no one else available in the circumstances with whom the children could be placed. Apprehending them without a warrant was not inappropriate in the circumstances.

[44] Apprehension of L. and D.1 Was Problematic

However, the circumstances relating to L. and D.1 were quite different. Neither was in the care of the mother, and there is no evidence that she was going to be their sole caregiver, while intoxicated, in the immediate future. Neither of them lived with her. They lived with their father, in his home, and in his care and custody. They had done so since at least 2005 to the certain knowledge of the society. They were both in school at the time of the incident at Ontario Works. At their ages of 14 years (L.) and 11 years (D.1), they had a degree of independence that allowed them to move around in the community without the need for direct parental presence by way of supervision. A reasonable expectation was that when they were finished their classes that day, they would probably go home. In fact, L. did precisely that.

(a) Apprehension Warrants

[45] Statutory Authority for Apprehension

Section 40 of the Act permits a society to apply to the court for a determination that a child is in need of protection. It provides in section 40(2) that a justice of the peace may issue an apprehension warrant authorizing a society to bring a child to a place of safety. Recognizing that it may not always be reasonable or even possible to get such a warrant, the Act permits a child protection worker of the society "to bring the child to a place of safety". These are statutory words that mean 'to apprehend the child'.

[46] Prerequisites for Warrantless Apprehension

A warrantless apprehension of a child is only permitted where two prerequisites are present. Firstly, the child protection worker must have reasonable and probable grounds to believe that the child being apprehended is a child in need of protection. This is not just a vague opinion. There is a plethora of jurisprudence of what is meant by "reasonable and probable grounds", and much of it is concerned with these as the basis for a person's belief about something. That something, in the case of the apprehension of a child, is that the child is in need of protection. Unfortunately, there is nowhere in section 40(7) any provision that requires an apprehending society worker to articulate the reasons why he or she believes a child is in need of protection at the time of apprehension of that child. Nor is that worker subsequently required to account to anyone for his or her belief, or for the grounds for it.

[47] Lack of Accountability in the Evidence

Not even in the child protection application that follows in the wake of a warrantless apprehension is the apprehending society worker required to be answerable for this belief. In the present case, for example, the apprehending worker (CPW Leslie Coombs) produced no affidavit evidence. The society's evidence was the affidavit of a different society worker (CPW Andrea Hooey) who was not present for the apprehension of either D.1 or L. This evidence does not explain why Ms. Coombs believed D.1 and L. were in need of protection. Nor does it set out any reasonable and probable grounds for that belief. The closest it comes is the statement (at Tab 3, Paragraph 82) with respect only to the apprehension of D.1: "On March 22, 2012, CPW Leslie Coombs attended R.M. Moore School to pick up the child D.1 and transport him to the society office, as the child was being apprehended by the society due to the society's concern about ongoing substance abuse and domestic violence."

[48] Absence of Explanation for L.'s Apprehension

There is virtually nothing in the society's account of the apprehension of L. that even remotely refers to any belief of Ms. Coombs, as to what grounds formed the basis for her belief that L. was a child in need of protection. The court is left to speculate that the reasons for his apprehension were the same as those for D.1's – concern about ongoing substance abuse and domestic violence.

[49] Second Prerequisite – Substantial Risk

The second prerequisite for a warrantless apprehension is the belief of the apprehending society worker, again based on reasonable and probable grounds, that there would be substantial risk to the child's health or safety during the time necessary to bring the matter on for hearing, or to obtain a warrant to apprehend from a justice of the peace. In this case, the time needed to bring the matter on for hearing was not really relevant. It was the time needed to get a warrant that was the relevant temporal consideration.

[50] Statutory Inadequacy Regarding Accountability

The statute is once again completely inadequate in the omission of any requirement for accountability of a society worker apprehending without a warrant. He or she is not statutorily accountable for any explanation of what were the grounds for his or her belief, why they were reasonable and probable, whether the risk was to the child's health, or to safety, or to both, what the nature of that risk was, and why it was substantial. In the context of section 40(7) of the Act, the substantial risk referred to is temporally tied to the time necessary to obtain a warrant. In this as well, there is no requirement in the Act to provide any information at any time – pre, at, or post apprehension – as to the prevailing time requirements for, or any time constraints in, obtaining an apprehension warrant. And there was none here.

[51] Lack of Evidence Regarding Temporal Constraints

In this case, the society has provided not one word of testimony, not even by way of hearsay, with respect to this second prerequisite for a warrantless apprehension. There were some words, however, by way of submissions of counsel as to temporal problems. These were essentially that justices of the peace in this jurisdiction would not entertain an information requesting an apprehension warrant if it was presented after 4 p.m.

[52] Systemic Problems Should Be Addressed

My view is that this kind of information should be provided as sworn evidence, not by way of statements of counsel in arguments. If the obtaining of an apprehension warrant is a problem because of systemic reasons, then steps should be taken by the society, as well as by this court, to address and to eliminate the problem. The solution of simply apprehending without a warrant is not any acceptable solution to the problem.

[53] Inference Regarding Warrant Attempts

In the case of D.1 and L., it is not known if time constraints or refusals of a justice of the peace to consider an apprehension information were reasons why they were apprehended without a warrant. There is simply no evidence provided by the society, and the society is the only and logical party to have this evidence. My inference is that the society did not even bother to try to obtain any warrants.

[54] General Rule Should Be Warrants

The local circumstances with respect to obtaining apprehension warrants is unacceptable. The Act provides a procedural code for child protection in Part III. The apprehension of children is governed by provisions in Part III. Although the Act does not say so explicitly, it is my interpretation that the general rule is that apprehensions should take place pursuant to a warrant obtained under section 40(2), and that a warrantless apprehension under section 40(7) is the exception, permitted only when the two prerequisites in section 40(7) are satisfied.

[55] Risk Assessment for L. and D.1

It was not reasonable for the society, after it apprehended K. and D.2, to believe that D.1 and L. would be put risk of the same kind of harm that may have applied to their younger brother and sister. For one thing, the society's evidence is that the mother indicated she would not be going to the father's residence. Even had she done so, the father would have been returning there. In addition, L. was age 14, age 15 next month, and not likely to be at significant risk of any harm if he were to come into contact with his mother, even if she was still intoxicated. The same applies, perhaps slightly less so, to D.1, who would have had his teenage brother present to keep an eye on him until their father returned home if he was not already there. There was no explanation in the evidence that either of L. or D.1 would be in the mother's care that day in the way that K. and D.2 had been.

[56] Source of Child Protection Concern

The logical extension of this is that the source of the child protection concern must have been the father. Moreover, according to the society evidence, the basis for that concern on March 22, 2012 was apparently two-fold – substance abuse and domestic violence.

[57] Domestic Violence Concerns Were Remote

The prospect of domestic violence between the father and the mother taking place on March 22, 2012 was, on the basis of even the most suggestive evidence, remote. There had been no reports of domestic violence since the previous November except for the anonymous indirect referral in mid-February 2012. The mother and father had been getting along. The mother was interviewed by the society and reported nothing out of the ordinary. Nor did either L. or D.1 when they were interviewed by the society. The mother in fact claimed that it was the anniversary of herself and the father. She and the father and D.2 and K. had had lunch at the Subway Restaurant. The father was then going on his own to the Career Employment Centre, and he had classes scheduled for the afternoon. According to the child, K., the mother took him to the dentist earlier that day, and she was then going to Ontario Works with both children. In short, it was a relatively uneventful day with no domestic violence clouds lurking on the horizon.

[58] Substance Abuse – Clarification

The other child protection concern mentioned by the society was substance abuse. While this is somewhat generic, in the context of this case it means alcohol abuse rather than drug abuse. If the society is suggesting that there was parental abuse of drugs on the day of apprehension, or at any time leading up to that date, I find such suggestion unfounded. Accordingly, I take substance abuse to refer to abuse of alcohol.

[59] Risk of Harm from Paternal Alcohol Abuse

I have already stated my scepticism for the possibility of any risk of harm to L. and D.1 as a result of contact with their mother while she was in an intoxicated state or under the influence of alcohol. The other possibility of risk of harm arises from the abuse of alcohol by the father.

[60] Evidence of Paternal Alcohol Consumption

However, on the day these children were apprehended, there is scant evidence that the father drank any alcohol at all, and none that he was exhibiting symptoms of intoxication or of being under the influence of alcohol. The only evidence of the society is the hearsay statement of the child K. (age 10) who, when interviewed on the day after he was apprehended, stated that he had gone home for his nutrition break at 11 a.m. and that his mother and father were drinking wine because it was their anniversary.

[61] Conflicting Evidence from L.

This is in contrast to the hearsay statement of L. (age 15) who had been home at 11:40 a.m. on that same day and who reported that both his parents had "looked fine" and that he had no concerns that they had been drinking.

[62] Mother's Account

The mother never indicated that the father had been drinking alcohol that day. A close examination of the society's evidence indicates that she admitted that she had had some alcohol.

[63] Lack of Evidence of Paternal Intoxication

The father was not asked by the society if he had been drinking that day. If he was, this fact was not in evidence. What was also not in evidence is any observation by anyone that the father showed any signs of intoxication or of being under the influence of alcohol. The father did tell the society later that he did not know that the mother was drinking or that she was drunk. His evidence is that he has never allowed the mother to be intoxicated and be in care of the children. He specifically denied to the society that he was drunk, and demanded that the children be returned to him.

[64] Insufficient Grounds for Warrantless Apprehension

While this court has the benefit of hindsight in the sense that what happened in the past is recounted in the evidence, the society, when faced with a situation has to act quickly with much less information. However, it must have enough information to meet the statutory requirements for a warrantless apprehension. In this case, there was not enough to constitute reasonable and probable grounds to believe that there was a substantial risk to the health or safety of either L. or D.1 as a result of paternal alcohol use or abuse to justify its warrantless apprehension of these two children. The result of this is that they have been separated from their families, from their homes and from their communities for almost two months with contact with their parents limited to one evening visit per week, and that in a relatively poor environment.

[65] Lack of Statutory Sanction

There is no statutory sanction available for an unjustified warrantless apprehension. The only downside is judicial censure after the fact, or an order for costs. Both are rare and, in my view, rather ineffectual. The logical extrapolation of a deficient statute and the expectation of minimal adverse consequences is that such apprehensions will continue to occur and that the consequences are bridges that can be crossed later - if anyone ever gets confronted by such a bridge.

[66] Judicial Response

In this case, there is no apprehension warrant to quash. Judicial censure should be apparent from these Reasons. The awarding of costs, while tempting, is not very effective, and, in fairness, I could not award costs without giving the parties an opportunity to make submissions on cost, and/or tender case law applicable to costs against a government agency.

[67] Return of L. and D.1 to Father

I propose to take a somewhat unusual measure with respect to L. and D.1. I intend to return them their father. To emphasize the point, this return is principally because these two children should not have been apprehended at all.

(b) Temporary Care and Custody under Section 51(2)

[68] Statutory Obligation to Make Temporary Orders

There are the more conventional provisions of the Act that cannot be ignored or bypassed. When a child protection case is placed before the court and is being adjourned, there is a statutory obligation on the court to make a temporary care and custody order. As outlined in paragraph [25] and following above, there are certain options available, and statutory criteria to be applied in selecting among these choices.

[69] L. and D.1 – Non-Removal Order

For the children L. and D.1, choosing section 51(2)(a) returns them to a usual custodian and caregiver, the person who had charge of them immediately prior to the society's intervention. Does this accord with the conventional approach to temporary care and custody determinations? I believe it does. This is a non-removal order. The court must make a non-removal order if the society has not satisfied the court that there are reasonable grounds to believe there exists a risk of likely harm if they are returned to their father. The society has failed to do so with respect to these two boys.

[70] No Supervision Order for L. and D.1

The court can return them with or without a supervision order. There are no explicit guidelines in the Act to assist in deciding whether or not to impose a supervision order on a non-removal temporary care and custody order. In this case, I choose not to do so. Supervision orders, even interim ones, are not innocuous and should not be imposed simply because they almost always are when a child remains with its caregiver. There should be a purpose to the supervision of the society, and it should be meaningful from the perspective of the protection of the child, even on an interim basis. So too should any terms or conditions associated with a supervision order.

[71] Conditions on Maternal Access

In the case of L. and D.1, I do not see a need for society supervision of their care by their father on an interim basis. They have gotten by their entire lives without it, and I am unconvinced that there is anything that has happened recently that changes that status quo. It is clear that there is, and likely will be, friction between the father and the society worker despite recent assurances of paternal cooperation. The only condition I might have considered would have been one imposed on their mother – namely no drinking alcohol during or within 24 hours of being in the father's home. However, I need not impose this with respect to the two older boys. I believe I can rely on the father to protect them from their mother should she come under the influence of alcohol or for any other reason.

[72] Consistency with the Act

Accordingly, even though my main reason or returning these children to their father's care is to demonstrate judicial disapproval for the society's apprehension of them, this return accords with the traditional philosophy underlying the Act, and does not offend the specific statutory provisions in section 51(2).

[73] Return of K. to Father

With respect to K., although his apprehension was not objectionable, even if without a warrant, he is in remarkably similar circumstances to those of his brothers. He is only a year younger than D.1. I see no reason why he cannot also return to his home so that his life can be normalized.

[74] K. – Conditions on Maternal Access

I am not inclined to return him under section 51(2)(b) as this requires the making of a society supervision order. The main concern I would have is with respect to exposure by him (as well as his siblings) to his mother's drinking or to parental discord (which could range from minor arguments to violence). Because all three boys reside with their father, I can address this concern by imposing carefully crafted conditions with respect to the mother's access to these three sons. In that regard, I would welcome additional submissions of counsel as not many were made with respect to maternal access when the motions were argued.

[75] K. – Non-Removal Order

The return of K. to his father's temporary care and custody will be pursuant to section 51(2)(a) of the Act. I am not satisfied that the first part of the test has been met by the society for K. when the father is the person who had "charge" of K.

[76] D.2 – More Troublesome Circumstances

The temporary care and custody of D.2 is more troublesome. This is because it was the mother who had "charge" of D.2 immediately prior to the society's intervention. I am satisfied that the society has met the first part of the test in section 51(3) with respect to the mother. I am fairly satisfied on the second part of the test as well.

[77] D.2 – Competing Claims and Kinship Considerations

This creates a problem. There are competing claims for temporary care and custody of this child. One is by the father. His claim would be pursuant to section 51(2)(c) of the Act. The society's claim would be under section 51(2)(d). In addition, kin placements have been proffered but there is not sufficient evidence for the court to satisfy its statutory obligation under section 51(3.1) and to decide whether it would or would not be appropriate to place the children with any of these proposed individuals. Such a placement would also be under section 51(2)(c). It may be that, with the decision of temporary care and custody made with respect to the three boys, kin placement considerations for only the child D.2 may be different from what they were when kin placement contemplated four children.

[78] D.2 – Continuation of Existing Order

The end result is that I make no order with respect to D.2 other than that the existing order is to continue, and to continue on a without prejudice basis. This applies both to placement as well as to access.

[79] Adjournment of Motions Regarding D.2

As for the motions at Tabs 2 and 6, to the extent that they relate to D.2, they will have to be adjourned.

Released: May 30, 2012

Justice John Kukurin, Ontario Court of Justice

Footnotes

[1] Ironically, the mother took the child K. for a dental appointment that same morning prior to going to Ontario Works.

[2] S. 37(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[3] S. 47(1) Where an application is made under subsection 40 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

[4] S. 51(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

(i) a place of secure custody as defined in Part IV (Youth Justice), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

[5] See section 51(2) supra.

[6] S. 51(3) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

[7] S. 51(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[8] A child protection application is with respect to a child. Despite the wording of the Act, societies routinely include multiple children (four in this case) as the subjects of one child protection application. It would be cumbersome to do otherwise. However, this should not obscure the reality that there is one application for each child.

[9] S. 51(3.1) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

[10] S. 37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2. The child's physical, mental and emotional level of development.
3. The child's cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
9. The child's views and wishes, if they can be reasonably ascertained.
10. The effects on the child of delay in the disposition of the case.
11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
12. The degree of risk, if any, that justified the finding that the child is in need of protection.
13. Any other relevant circumstance.

[11] S. 37(4) Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child's cultural identity.

[12] S. 51(5) An order made under clause (2) (c) or (d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate.

[13] S. 58(1) The court may, in the child's best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[14] Part III of the CFSA is concerned with and entitled "Child Protection".

[15] S. 38(1) A child may have legal representation at any stage in a proceeding under this Part.

(2) Where a child does not have legal representation in a proceeding under this Part, the court,

(a) shall, as soon as practicable after the commencement of the proceeding; and

(b) may, at any later stage in the proceeding,

determine whether legal representation is desirable to protect the child's interests.

[16] S. 38(4) Where,

(a) the court is of the opinion that there is a difference of views between the child and a parent or a society, and the society proposes that the child be removed from a person's care or be made a society or Crown ward under paragraph 2 or 3 of subsection 57 (1);

(b) the child is in the society's care and,

(i) no parent appears before the court, or

(ii) it is alleged that the child is in need of protection within the meaning of clause 37 (2) (a), (c), (f), (f.1) or (h); or

(c) the child is not permitted to be present at the hearing,

legal representation shall be deemed to be desirable to protect the child's interests, unless the court is satisfied, taking into account the child's views and wishes if they can be reasonably ascertained, that the child's interests are otherwise adequately protected.

[17] There is no evidence that the society was aware of the whereabouts of the father at the time it apprehended K. and D.2. On the other hand, there is no evidence that it made any inquiries as to his whereabouts at the time. The mother clearly knew where the father was. So, apparently, did K.

[18] S. 40(2) A justice of the peace may issue a warrant authorizing a child protection worker to bring a child to a place of safety if the justice of the peace is satisfied on the basis of a child protection worker's sworn information that there are reasonable and probable grounds to believe that,

(a) the child is in need of protection; and

(b) a less restrictive course of action is not available or will not protect the child adequately.

[19] S. 40(7) A child protection worker who believes on reasonable and probable grounds that,

(a) a child is in need of protection; and

(b) there would be a substantial risk to the child's health or safety during the time necessary to bring the matter on for a hearing under subsection 47 (1) or obtain a warrant under subsection (2),

may without a warrant bring the child to a place of safety.

[20] "Substantial risk to the child's health or safety" are statutory words that have received more than their fair share of judicial attention. These were words used in the two-part test in section 51(3) prior to its amendment in the year 2000. There is considerable case law on these very words in that context. The consensus of this jurisprudence is that these words have both qualitative as well as quantitative connotations. To use a medical analogy as an example, for a risk to be "substantial" in a surgical operation, it is necessary not only that the odds of the adverse consequence are high, but also that the potential adverse consequences are grave.

[21] The only evidence of the society as to time is that the call from Ontario Works to the society was at approximately 2 p.m. It is not difficult to believe that the society would not be able to produce an information to support a request for an apprehension warrant by 4 p.m. Especially if it had yet to locate and apprehend D.1 and L.

[22] There are very few reported decisions relating warrantless apprehensions. Two in Ontario are Children's Aid Society of the Region of Halton v. K.J.H. and I.M.H., 2004 ONCJ 119 (Wolder, Ont. C.J.) and Children's Aid Society of Niagara Region v. C.B., [2005] O.J. 3878 (Quinn Ont. S.C.J.)