WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

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

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: September 24, 2018

Court File No.: C139/18

Ontario Court of Justice

Between:

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

Applicant

– And –

L. DV.

Respondent

– And –

C.B.

Respondent

Before: Justice K.A. Baker

Heard on: September 10, 2018

Reasons for Judgment released on: September 24, 2018

Counsel

B. Culp — Counsel for Brant Family and Children's Services

C. MacIntosh — Counsel for Respondent L. DV.

E. Van Looyen — Counsel for Respondent C.B.

Judgment

BAKER, J.:

[1] This is my judgment on a hearing to determine whether or not the court has been deprived of jurisdiction to hear this proceeding due to a failure to comply with statutory prerequisites following an alleged removal of a child to a place of safety.

[2] The issue in this case is as follows: On April 30, 2018, the two subject children were taken by the Society to the maternal grandparents to be cared for, where they remained until May 15, 2018. The mother says she did not consent to this removal. She says it was in fact a situation wherein the Society removed the children to a place of safety pursuant to the provisions of section 81 of the Child, Youth and Family Services Act. Accordingly, the Society was required, pursuant to section 88 of the Act, to bring the matter to court as soon as practicable and in any event, within five days. The mother says that the court is thereby deprived of jurisdiction arising from the lack of compliance with the legislative requirements.

[3] The mother further alleges that both that removal, and a subsequent removal on June 1st, 2018 were in fact, warrantless removals to a place of safety. She says that the Society did not have the necessary grounds pursuant to section 83(4) of the Act to proceed without warrant, in that there were no exigent circumstances. She says that these two unfounded warrantless removals constitute "context" in assessing whether there is a loss of jurisdiction.

[4] The father supports the mother's position in this regard.

[5] The Society says first, that the parents did consent to the removal of the children to the maternal grandparents on April 30, 2018. Alternatively, it says that the return of the children to the care of the parents on May 15, 2018 effectively ended that discrete chain of events and cannot be said to deprive the court of jurisdiction to hear the subsequent Protection Application brought June 6, 2018.

[6] The Society further argues that the workers did indeed have reasonable and probable grounds to believe that an immediate removal of the children was required, and that the delay necessary to secure a warrant would put the children at risk.

[7] The background of this matter is as follows:

Background

[8] L. DV. and C.B. are the parents of the subject children H.B., born […], 2016, now aged two years and I.B., born […], 2017, now aged eleven months. The Society initially became involved with the family in August 2016 due to concerns about the father's mental health and an incident of domestic conflict. The file was closed two months later in October of that year. The Society then became re-involved in December 2017 regarding concerns of inadequate provision of care, domestic conflict and both parents' mental health. The file was then again closed in February 2018.

[9] On April 27, 2018, the Society received an anonymous call citing various concerns about the family's situation. Three days later, the file was assigned to worker Angelle Hunter. Ms. Hunter and a co-worker, Taylor Coulson, attended the home. Whilst awaiting the mother's response to the door, Ms. Hunter was able to observe "baby A." alone on the floor in the living room. The mother had been upstairs before responding to the worker's attendance. (On the face of it, the identity of the child "baby A." is somewhat unclear, as neither child in these proceedings is of that name, and no other child is indicated in the evidence. In her affidavit of August 27, 2018 however, the mother seems to acknowledge that 'A.' is actually I.)

[10] The workers seem to have rapidly determined that the home was unsuitable for the children. In paragraph 16 of her affidavit sworn June 5, 2018, Ms. Hunter describes the home as, "filthy, hazardous and unhygienic". The photographs taken at the time and appended to that affidavit confirm that assessment.

[11] After being admitted to the home, Ms. Hunter and the mother had some discussion. The mother indicated that there was a "no contact" order in place between herself and the father. She also said that she and the father were not in a relationship and that the father resided in Cambridge. At some point, the mother entered the master bedroom and Ms. Hunter could hear the mother speaking with someone. When Ms. Hunter entered the master bedroom, she opened the closet door to look inside and discovered the father "hiding" in the closet. Ms. Hunter deposed that when she asked the father what he was doing hiding in the closet, the mother responded saying, "he hates CAS".

[12] Police were then called, and they confirmed that there was a revocable "no contact" order in place between the parents, but that the mother had provided written permission for contact. This concerned Ms. Hunter, as the file had been closed in February 2018 on the basis that the "no contact" order stood, and that the parents would have to complete services to address the adult conflict before the Society could support them in resuming cohabitation.

[13] For her part, the mother says that when she left the bedroom earlier before admitting the workers, the father was not in a closet. She does not however deny that the father was in the closet at the time that Ms. Hunter entered the bedroom. Neither does she deny saying in response to the enquiry, "he hates CAS".

[14] Over the course of the worker's attendance, the mother was described as becoming "irrational". She had taken three Ativan pills, and repeatedly referred to herself as, "unwell". At paragraph 21, Ms. Hunter deposes, "I noted that the mother was not able to focus or carry on any substantial conversation about her children or be able to meet their needs while I was there". By this point, Ms. Hunter was "increasingly worried about the (mother's) mental health", as well as the state of the home.

[15] It is apparent from the evidence that by this point, the workers had determined that the children could not stay in the home with the parents. At paragraph 22, Ms. Hunter indicates that she asked the parents where the children could go to allow them time to clean their home so that it met community standards and no longer posed a risk to the children. The mother suggested her parents.

[16] The Society says that the parents consented to the children going to stay with the maternal grandparents. Specifically, at paragraph 22, Ms. Hunter states: "it was agreed upon that the children would stay with their maternal grandparents for the night and I would attend back to the home the following day to see the home environment and talk to parents further about the concerns".

[17] Ms. Hunter also asserts at paragraph 9 of her affidavit, "On April 30, 2018, the parents voluntarily placed their children with the maternal grandparents to address the immediate concerns the Society identified, namely regarding the state of the home".

[18] It was also agreed that Ms. Hunter would return the following morning to assess the parents' efforts to address the home condition, apparently with a view to returning the children.

[19] When Ms. Hunter returned on May 1st, 2018, the parents precipitated a heated confrontation with the workers that culminated in the mother throwing an item onto the floor and yelling at the workers to "get the fuck out". A subsequent meeting the same day at the Society offices was no more productive. The mother presented as agitated and was difficult to understand. So much so that the worker decided not to request the mother to sign consents, because of a concern the mother would not understand what she was signing.

[20] Ms. Hunter did communicate to the mother that the Society still had "concerns and worries" that were unaddressed. The agency wanted to have a "Rapid Response meeting" to plan before the children were returned home. The mother was said to be "happy" with this plan. Notably, mother referred to what was occurring as, "an intervention".

[21] At paragraph 30, Ms. Hunter deposes, "Ms. DV. agreed for her children to remain at her parents' home under their care and her access would continue to be supervised by them until we could have the Rapid Response meeting".

[22] The children were not returned to the care of the parents until May 15, 2018. This occurred only after a "Rapid Response" meeting on May 7, 2018, which resulted in a safety plan being put into place. The plan permitting return of the children to the parents was contingent upon a family friend, T.J.S. moving in to the home. It seems to have taken a few days for Mr. S. to make the necessary arrangements, which delayed the return of the children.

[23] On May 30, 2018, Ms. Hunter received a call from the mother. The mother and father were in the midst of a heated dispute, which the mother characterized as a "volatile situation over here right now". The mother said she was in the process of "kicking (the father) out". The children were present at the time. Over the following two days Ms. Hunter received two other calls from the mother saying that the father was continuing to come to the home despite the Society's direction that he not do so.

[24] Ms. Hunter attended the home again on June 1st, 2018. She observed the baby, I. sitting on a blanket alone in the living room without any adults present. When the mother answered the door, she immediately said "C. (the father) is here". Mr. S. however was not present, contrary to the Society's safety plan. The situation rapidly escalated, as the father verbally confronted the workers and then began to yell, "Get the fuck out of here" and "get off my property" and the like. The two workers felt their own safety was in jeopardy, and retreated to their vehicles. Police were then called and the children were subsequently removed to a place of safety without a warrant. A Protection Application was then commenced for the first time, and on the first return, June 6, 2018, a temporary, without prejudice order was made placing the children in the care of the Society, with access to the parents.

[25] The mother deposes in her affidavit sworn August 27, 2018 that at no point did she consent to the removal of the children from her care. At paragraph 30(a) of that affidavit the mother asserts the following: "I informed both the workers and the police offers (sic) that I did not agree to removal of the children for any time unless they remained in my legal care and custody and had simply gone to their grandparents for a few hours while I cleaned".

[26] The mother also says that during the May 1st, 2018 meeting with workers, she "required" legal counsel be present, or in the alternative, wanted to speak with a manager. Later, she reiterated a desire to have counsel present.

[27] With respect to the situation at each of the two removals, the mother minimizes the concerns. This includes her account of the state of the home on April 30, 2018. The mother attributes this to the father returning to the home to seek his belongings. The father also disputes that the home was unhygienic and filled with hazards. He too minimizes the situation at each removal, including suggesting he was not as aggressive with the workers as the Society has alleged. He does however acknowledge a history of anger issues and convictions for assault against the mother and for failing to comply with a Probation order in relation to contacting the mother.

[28] The mother has also introduced into evidence an occurrence report from Brantford Police officer Shyanne McGregor, dated April 30, 2018. The report notes that on the officer's arrival at the home, Ms. Hunter indicated, "due to circumstances in the home, they wanted to remove both children."

[29] It goes on to say, "While on scene, mother L. DV. became extremely irate with the presence of both police and the Brant Family and Children's Services workers. She believed that the "voluntary apprehension" of both children was unfair ... Moreover she felt that having the children removed from her care at the time would "remove her safety blanket".

[30] The mother was said to continue to be "uncooperative".

[31] The report goes on to say, "It should be noted that on scene, Angelle Hunter did advise that the children would only be placed with (redacted) for approximately 24 hours. The agency believed at this time, this would be enough for both L. DV. and (redacted) to clean the home. Brant Family and Children's Services planned on re-attending the home on Tuesday May 1, 2018 to re-assess the situation."

[32] By the end of the note, the officer described the mother as "crying and yelling uncontrollably" at the worker.

Legal Analysis

[33] In Brant Family and Children's Services v. C.H, O.J. No. 2209, this court dealt with a similar situation wherein the Society had asserted the mother had consented to a suspension of her "access rights". In actuality, the court found that the Society had suspended the mother's court ordered custody time with the subject child and that it had not met its onus to show the mother had consented to the suspension. The court further found that the Society did not then bring the matter to court within five days, as required by the legislation, and that this lack of compliance deprived the court of jurisdiction for the subsequent Application.

[34] Precedent for this approach was established in Kenora-Patricia Child and Family Services v. J.G. O.J. No 2290, another decision of the Ontario Court of Justice. No appellate authority to the contrary was presented and the Society did not dispute that it is open to the court to find it has lost jurisdiction as a result of a failure by the Society to comply with section 88 of the Act.

[35] My analysis of this matter is as follows:

Assessment of the Home Conditions

[36] It is apparent from the photographs of the family home taken on April 30, 2018 that the conditions were nothing less than disastrous. The photographs reveal much more than clutter. There is garbage strewn throughout the home and the conditions are plainly hazardous to small children. There are wires strewn about, constituting not just a tripping hazard, but a choking hazard for a toddler. There are used food and drink containers, as well as aerosol containers strewn about. There are dirty food bowls and other items, as well as uneaten food littering the counter tops. It would be difficult if not impossible to walk across the floors, without stepping on something, so littered are they with an array of items. There is a box of empty alcohol containers on the floor, at the children's level.

[37] The police occurrence report records that the home was "extremely dirty" with vomit on the couches and feces stains on the couch. One of the children's feet were black with grime.

[38] It is no small wonder that the Society workers considered that the children needed to be immediately removed from such an environment. Not only would the workers be concerned with the physical hazards posed, but one would wonder what was going on in the parents' lives that they had allowed such a situation to develop.

[39] Had the Society treated the situation as a removal pursuant to its legislative authority, it would have clearly been beyond reproach.

The Question of Consent

[40] But it did not do so. The issue then becomes: Can the Society meet its onus to show that the parents, who had mutual charge of the children, consented to the removal?

[41] In this regard, the Society relies essentially on its blanket assertion that the parents verbally "consented" or "agreed" to this removal. Nothing was presented to show that this "consent" was reduced to writing. There was no evidence as to the specific words that the parents might have used in supposedly consenting or agreeing to the removal. There is only the conclusionary statement by the Society.

[42] Society workers routinely take detailed notes of their interactions with parents. One would think that a worker would be particularly careful to take comprehensive notes when a child is being taken out of the care of the parents. Those notes would then be available to the worker in preparing the affidavit, such that the precise statement made by the parent and relied upon for the consent could be reiterated. No evidence of such verbatim consent was offered by the Society.

[43] In my view, there is no credible and trustworthy evidence upon which I could conclude that the mother (or father for that matter) consented to the removal of the children on April 30, 2018.

[44] It seems to me that this situation was much more akin to the parents being presented with a fait accompli that the children were going to be removed. That is supported by the police occurrence report, which indicates that when Officer McGregor arrived on scene, she was informed by Ms. Hunter that "due to circumstances in the home they (presumably meaning Ms. Hunter and her co-worker) wanted to remove both children".

[45] It is apparent from that, that Ms. Hunter had, by the time of police arrival, already decided to remove the children. It would appear from Ms. Hunter's June 5, 2018 affidavit that police were called fairly rapidly after the worker's entrance to the home. There is no indication that there was any sort of negotiation between the worker and the parents for the removal of the children prior to police arrival. In fact, at paragraph 22, Ms. Hunter discusses the police being in the home in the same breath as she says the parents "agreed" to the plan that the children would go to their grandparents.

[46] This is at precisely the same time that Ms. Hunter is describing the mother as not able to focus or carry on substantial conversation. In fact, it is at the same time that Ms. Hunter said she was concerned about the mother's mental health. It is all within the context of mother crying and yelling at the workers and asserting that the decision was "unfair".

[47] It is very difficult to reconcile these facts with a freely given consent to removal of the children.

[48] As this court noted in Brant Family and Children's Services v. C.H., at paragraph 23, the most basic tenet of consent, particularly when given to a person in authority, is that it must be freely and voluntarily asserted. It must be given by someone who is capable of understanding the nature and consequences of the choice. There were obvious questions on these points on Ms. Hunter's own observations.

[49] The Society had decided these children were leaving the home. The worker canvassed, as she is required to do, kin alternatives. The mother identified the maternal grandparents. That is not the same thing as consent to removal.

[50] Then there is the issue of duration of the consent. If the Society is going to rely on "consent" as a ground for an alternate care arrangement, it seems to me that it needs to carefully and concretely delineate the parameters of that consent. The mother says to the extent she "consented", she agreed only that the children would go to their grandparents for a few hours. A few hours soon turned into just over two weeks.

[51] What is the evidence that the parents consented to the children remaining out of their care for this period of time?

[52] The workers returned to the parents' home on May 1st, 2018 to observe its condition. That ended badly. There is no indication that consent was advanced for the children to remain outside of the parents' care during that interchange.

[53] Then there was the meeting later that day at the Society offices. The mother arrived with matted hair, looking unwell. Ms. Hunter was unable to understand all of what the mother was talking about, because of her disjointed rambling. She found the mother to be "not rationale"(sic) or able to conduct a conversation. Ms. Hunter was sufficiently concerned about the mother's mental stability that she declined to have her sign consents to speak with service providers. That was because she did not think the mother could give "informed consent".

[54] It is in relation to the same meeting however, that Ms. Hunter asserts that the mother agreed for the children to remain at her parents' home, under their care, with mother's access to be supervised, "until we could have the Rapid Response meeting".

[55] How is it that a worker can conclude that a parent is unable to provide "informed consent" to sign releases so the Society can speak to service providers, but can provide informed consent to the children continuing to be removed from her care? The two ideas cannot be reconciled. There is no evidence that this constituted informed, voluntary consent. For the second time, the mother was presented with the Society's fiat.

[56] As noted in Brant FCS v. C.H., capitulation is not the same thing as consent.

[57] The "consent" the Society relies upon from the May 1st meeting was, by its own account, valid only until the Rapid Response meeting. That meeting took place on May 7, 2018. Ms. Hunter deposes that the family came up with a "plan" for the Society to assess, which involved the family friend Mr. S., moving into the residence. (Why this would not be reduced to a written agreement signed by all parties and copied to all, is not explained. Such a practice would eliminate confusion and ensure that the rules are evident to all and not open to dispute.)

[58] There is no indication whatsoever that consent to the children remaining with the maternal grandparents for a further eight days was advanced at that time.

[59] The Society's position that the parents somehow consented to, or agreed to the removal of the children for this 16-day period is untenable. I find that the Society has not met its onus of showing consent and that the situation was one of removal pursuant to the legislation.

Jurisdiction and Loss of Jurisdiction

[60] It is trite law that state intrusion into parental autonomy triggers Charter protections, including that of fundamental justice. No less an authority than the Supreme Court of Canada in Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, has stated that the interests in removal of a child are of the "highest order".

[61] Or, as stated in Brant FCS v. C.H., "State intervention by a child protection agency is a big deal."

[62] Had the children remained continuously in the care of the Society after May 15, 2018 and the Protection Application been brought subsequent to the legislative five-day limit, I would have found that jurisdiction had been lost for lack of statutory compliance.

[63] But that is not the situation. The children were returned to the parents' care on May 15th, 2018, where they remained until June 1st, 2018. The present Protection Application is a product of the June 1st, 2018 removal, and it was brought within the five-day "hard cap" of section 88 of the legislation. The cases that rest on the failure to comply with the statutory time requirement all deal with one continuous removal of a child. No authority was presented for a previous lack of compliance with the legislative time requirement and dismissal of a subsequent application.

[64] It seems to me that the intervention between April 30th and May 15th, 2018 was a discrete event from the current application. While the Society did not have a proper basis to withhold the children from the parents, either by way of consent or through statutory authority during this time, this does not seem to me to preclude a subsequent intervention and Protection Application. Holding otherwise would seem to invite mischievous results. A parent could claim ongoing immunity from litigation premised on an earlier breach of statutory obligation. That cannot possibly be a desirable outcome. It also could not be an outcome consistent with the primary purpose of the legislation: furthering the best interests, protection and wellbeing of children.

[65] I therefore decline to find that the court has lost jurisdiction on the herein Protection Application as a result of the Society's lack of compliance with statutory requirements.

Warrantless Removals and Exigent Circumstances

[66] This brings me to the argument that the Society's decision to intervene on each of April 30th and June 1st, 2018 without a warrant somehow heightens the case for dismissal.

[67] First, it was conceded by counsel for the mother that a failure to demonstrate grounds to remove without a warrant does not open the door to dismissal on jurisdictional grounds. The existing case law deals with such situations through other remedies such as judicial rebuke or a costs award.

[68] The absence of a warrant for the removals does not, in my view, assist the parents on the issue of loss of jurisdiction. The two are separate and discrete issues. Loss of jurisdiction arises from lack of compliance with the statutory time lines to present the matter to the court following removal. Jurisdiction is not lost for an inappropriate warrantless removal. Other sanctions apply. The "context" of such events is irrelevant to this particular consideration. It may be relevant to other issues, but these are not the subject of adjudication at present.

[69] In any case, however, I find that the Society did have grounds to remove the children without warrant on both April 30th and June 1st, 2018. At both times, workers were presented with exigent circumstances. In the first, there were imminent environmental hazards to these small children. Concerns developed about the mother's mental health. The father was in the home. He was bound by a "no contact" order. Although the mother says she provided consent for the father to be in the home at the time, she has not provided any documentary proof of the dates of such consent. Clearly she could have done so as she was permitted to file on the day of hearing a single page of a consent. That document was undated. Although it seemed to relate to indirect contact only, the fact of mother's possession of it suggests that she could have provided copies of all consents to contact.

[70] The court is also left to wonder why the father would be hiding in a closet if mother had, as of the relevant date, provided her consent to contact with him. Either the mother had not provided the requisite consent, or she had, but knew the Society workers would view the father's presence as unsafe for the children. Either scenario suggests imminent risk.

[71] On June 1st, 2018, the workers were presented with a situation whereby the father was again in the home. They knew there was a history of domestic violence. They knew the father capable of violence. They would have known of his conviction for failing to comply with a court order. This is the person who became extremely verbally aggressive and was shouting, "Get the fuck outta here". It is not surprising the workers felt their own safety required retreat. There were two very small and vulnerable children in the home with a male with a history of violence, who was obviously out of control. These were exigent circumstances and it would have been negligent for the workers to drive off to seek a warrant, leaving the children to the situation.

Final Order

[72] Accordingly, final order to go:

1. The application to dismiss the Protection Application for want of jurisdiction shall be dismissed.

Dated at Brantford, Ontario

This 24th day of September 2018

The Honourable Justice K.A. Baker