WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) PROHIBITION: IDENTIFYING CHILD — 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.

(9) IDEM: ORDER RE ADULT — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) IDEM — A person who contravenes subsection 45(8) or 76(11) (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 Information

Date: July 26, 2017

Court File No.: C191/14B

Ontario Court of Justice

Parties

Between:

Brant Family and Children's Services (o/a The Children's Aid Society of Brant)

Applicant

– AND –

R.E.M.

Respondent

– AND –

M.L.

Respondent

Before the Court

Before: Justice K.A. Baker

Heard on: July 20, 2017

Reasons for Judgment released on: July 26, 2017

Counsel

• B. McQuestion — Counsel for the Children's Aid Society of Brant
• B. Culp — Counsel for Six Nations of the Grand River
• M. Bulbrook — Counsel for R.E.M.

Reasons for Judgment

BAKER, J.:

Introduction

[1] On July 20, 2017, I made a consent order concluding a Protection Application, with written reasons to follow. These are my reasons.

Background

[2] Al.M. is three years old. Her sister Au.M. is fourteen months. Both children have been the subject of a Protection Application brought by Brant FACS, seeking to have them made Wards of the Crown, without access. The application has been before the court continuously since June 26, 2014.

[3] R.E.M. is the children's mother. She defended the Application, seeking to have the children returned to her care subject to supervision. Al.'s father, M.L. did not participate in the litigation and was previously noted in default. Au.'s father, D.H. also did not participate in the litigation and he too was noted in default.

[4] The children are Native and the Six Nations of the Grand River took an interest in the proceeding.

The Consent Order

[5] The matter had been scheduled for trial commencing on July 24, 2017. The parties have, however, entered into an agreed statement of facts, effecting full resolution of all issues. All parties agree that it is in the best interests of Au. to immediately return to her mother's care, subject to the supervision of the Society, for twelve months. They also agree that it is in Al.'s best interests to be reintegrated back into her mother's care over a two month period. The facts, carefully and comprehensively enunciated in the seventeen page agreed statement, establishes a solid foundation for that conclusion.

The Legal Issue: Section 70 of the Child and Family Services Act

[6] There is just one problem. Al. has been in the Society's care since she was two months of age, a period of three years and two months. At face value, section 70 of the Child and Family Services Act would seem to preclude such an outcome. Section 70 reads as follows:

Time limit

70 (1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.

Calculation of Period

(2) In calculating the period referred to in subsection (1), time during which a child has been in a society's care and custody under,

(a) an agreement made under subsection 29 (1) or 30 (1) (temporary care or special needs agreement); or

(b) a temporary order made under clause 51 (2) (d),

shall be counted.

Previous periods to be counted

(2.1) The period referred to in subsection (1) shall include any previous periods that the child was in a society's care and custody as a society ward or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society's care and custody. 1999, c. 2, s. 21 (1).

Extension of Period

(3) Where the period referred to in subsection (1) or (4) expires and,

(a) an appeal of an order made under subsection 57 (1) has been commenced and is not yet finally disposed of; or

(b) the court has adjourned a hearing under section 65 (status review),

the period shall be deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 65, as the case may be. R.S.O. 1990, c. C.11, s. 70 (3); 1999, c. 2, s. 21 (2).

Six-month extension

(4) Subject to paragraphs 2 and 4 of subsection 57 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so. 1999, c. 2, s. 21 (3).

The "Hard Cap" Problem

[7] A cursory reading of this provision would lead one to conclude that there is a "hard cap" on the length of time that a court may order a child to be a Society ward. In the case of a child under six, like Al., that "hard cap" would seem, prima facie, to be eighteen months.

[8] Here however, the parties urge me to read section 70 differently. They say that subsection 70(4) should be read harmoniously with the overarching purposes of the legislation. That is, specifically, the power to extend Society wardship can, in an appropriate case, and if consistent with a child's best interests, be invoked at the time of disposition regardless of how long the child has already been in care. This would allow for the court to extend Al.'s Society wardship by six months at the time of disposition, despite the fact that she has already been in care almost three times the number of months apparently contemplated by the statute.

[9] Could this be so?

Relevant Case Law

[10] In support of this proposition, Mr. McQuestion submitted two cases. The first of these is Children's Aid Society of Toronto v. L.U. and G.J.S., 2007 ONCJ 741. In that matter, Justice Ellen Murray of the Ontario Court of Justice considered the interpretation to be given to the powers to extend Society wardship. Justice Murray commented as follows:

"There has been debate about the extent of a court's powers under this section to extend a child's period of society wardship. Some courts have held that the section allows a court to extend society wardship for a child under six years of age only up to the point where the child will have spent a total of eighteen months in society care. Other courts have held that this section gives the court direction to extend the 12 month limit by six months from the date of trial by individual and separate periods of up to six months. In my view, the latter interpretation is most consistent with the overall purposes of the Act. If the Legislature had intended greater restriction on the court's ability to extend the time limit in appropriate circumstances, it could have drafted the section accordingly."

[11] Justice Murray's case was a contest between the Society's request for Crown Wardship without access and mother's request for the child to be placed with her, subject to supervision by the Society. The young child had been in care for over 12 months. Neither party to the action had requested an extension of Society wardship. Justice Murray however concluded a further six month period of Society wardship, beginning as of the date of disposition, was consistent with the child's best interests.

[12] An earlier case, Children's Aid Society of the Districts of Sudbury and Manitoulin v. M.P., a decision of Justice Renaud of the Ontario Court of Justice, also considered the proper interpretation of the section. Justice Renaud was confronted by the parent's submission that in the appropriate case, it may be possible to consider extending the time limit permitted by the subsection by individual and separate six month extensions. In other words, to repeatedly, and sequentially, invoke the extension provision for the same child.

[13] Beginning at paragraph 103, the court made the following comments:

"Arguably, inflexible legislative time provisions may superficially appear to work contrary to the child's best interests. Nevertheless, the courts possess sufficient flexibility to address individual situations. Subsection 70(4) may permit a court to make more than one order extending time periods, provided that no one single order exceeds six months. Had the intention of the legislature been to limit the power of the court to grant a further extension it would have been easy to state so, as in the provisions of Part V of the Family Responsibility and Support Arrears Enforcement Act, 1996 S.O. 1996 c. 31, permitting a single refraining order upon receipt by the payor of the first notice of suspension. Such an interpretation may not be giving language its plainest meaning, but arguably, such a reading may well be more consistent with the principles expressed in section 1 of the Act and with the best interests of a child in a particular case."

[14] Ultimately, the court determined that extension of Society wardship was not in the best interests of the subject child and Crown wardship was ordered. Arguably then, the opinion rendered within the decision was obiter. It remains persuasive however.

[15] These two cases take different approaches to extending the time for Society wardship. Justice Murray extended the period of Society wardship by starting the extension at the time of disposition, disregarding the time the child had already been in care. Justice Renaud takes the view that sequential extensions can be made, presumably over periods of status review. The commonality in the decisions is that both concur on the conclusion that there is no "hard cap" of eighteen months for children under six years or twenty-four months for children over six.

[16] The common logic is that where statutory time limits are in conflict with the best interest of the child, the legislation must be given a construction consistent with the best interest of the child.

Statutory Purpose and Legislative Intent

[17] The paramount purpose of the Child and Family Services Act, expressed at section 1(1) of the Act, is to promote the best interests, protection and well-being of children. Additional purposes include giving help to families that supports the autonomy and integrity of the family unit, and recognizing the least disruptive course of action that is available and which is appropriate in a particular case, to help a child, should be considered.

[18] In the instant case, a "hard cap" approach would produce one of two outcomes. First, Al. could be made a Crown Ward without access and placed in an adoptive placement. I am told the adoptive home would not have been the foster home in which she has spent her entire time in care. So she would transition, presumably over some period of time, to people who are currently complete strangers to her. Alternatively, Al. could be sent home immediately to her mother. At the same time as her younger sister. This would deprive the family of the potential benefits of a staggered return, which would improve the chances of successful reintegration. It would also result in a drastic dislocation for Al., with the consequent disruption and distress at being summarily removed from caregivers who have provided for her most of her life. And of course, coping with the distress arising from experiencing such an outcome would inevitably have significant fall-out for the entire family unit, including the mother and the sibling.

[19] This outcome could not possibly further the best interests and well-being of either child. Undertaking a course mindful that the child will probably suffer some emotional shock when a better outcome is available is utterly inconsistent with an objective of protecting children.

Indigenous Child Considerations

[20] The court must also be mindful of the fact that Al. is an indigenous child. Section 37(4) of the legislation directs that in making decisions for a Native child, consideration must be given to the importance of recognizing the uniqueness of Indian and native culture, heritage and traditions and of preserving the child's cultural identity.

[21] Effecting an outcome whereby Al. will be cared for by her biological mother, in a home with her sister, will ensure that she has exposure to her native culture, traditions and heritage. Whether this would be so with a yet to be selected adoptive family is unknown.

[22] Approaching the situation as an "either or" as between Crown wardship and return to mother would create an entirely arbitrary outcome. This is especially so given that under an order for Crown Wardship, Al. would remain in foster care for probably about the same length of time that she will under the "piggyback" order provided for by the minutes of settlement. And here, she will be placed not with strangers, but with her biological mother and sibling.

Charter Considerations

[23] It is trite law that child protection intervention, particularly that which seeks a permanent removal of a child from a parent, engages Charter protections, including that of fundamental justice.

[24] Although it was not specifically argued, it seems to me that an interpretation of the legislation in a fashion that provokes such arbitrary results could potentially run afoul of the protections of section 8 of the Charter. Although this is a determination for another day, this would seem to be a consideration in ascertaining the correct approach to interpretation of the section.

Legislative Intent and Statutory Interpretation

[25] There can be little doubt that section 70 was implemented by the Legislature to address a compelling concern: children stranded in the limbo of a Society wardship order. These children are in inherently uncertain and impermanent states. The legislation and the case law emphasize that timely decision-making is essential to child protection and well-being. This obvious legislative intention must be assessed in determining the correct approach to the statutory interpretation of section 70(4).

[26] But this can be done by viewing the time restrictions set out in section 70 as presumptive ceilings rather than hard caps. Experience would show that adoption of the latter can produce unexpected and untoward results.

The Modern Principle of Statutory Interpretation

[27] The so called "modern principle" of statutory interpretation was enunciated more than forty years ago by Elmer Driedger in the text, Construction of Statutes. The principle was stated as follows:

"Today there is only one principle or approach, namely the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament."

[28] This approach has been consistently employed by courts of varying levels and was indeed endorsed by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd, [1998] 1 SCR 27. In setting out the approach to be taken to statutory interpretation, Iacobucci, J concluded, (my italics):

"At the heart of this conflict is an issue of statutory interpretation. Although the plain language of ss. 40 and 40 a of the ESA suggests that termination pay and severance pay are payable only when the employer terminates the employment, statutory interpretation cannot be founded on the wording of the legislation alone. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Moreover, s. 10 of Ontario's Interpretation Act provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit"."

Court's Conclusion

[29] Reading the provisions of section 70(4) of the Child and Family Services Act with a fair, large and liberal construction, consistent with the intent, meaning and spirit of the Act compels the conclusion that a) more than one six month extension to Society wardship can be granted, and b) the six month extension can be granted at the time of disposition even if the child has already been in care for a period longer than eighteen or twenty four months, if such an order furthers the best interests, protection and well-being of the child.

[30] Had the Legislature intended to preclude more than one extension of up to six months, it could have readily said so. Had the Legislature intended to create a "hard cap" of eighteen or twenty four months depending on the age of the child it could have stated that. The Legislature did neither.

[31] I am also satisfied that this interpretation is consistent with the paramount and overall purposes of the legislation.

[32] Here I am satisfied that the order given was consistent with the best interests, protection and well-being of this child.

[33] My thanks for counsel for their very helpful submissions in this matter.

Dated at Brantford, Ontario

This 26th day of July 2017

The Honourable Justice K.A. Baker