Warning

The court hearing this matter directs that the following notice should 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.

(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.

(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 File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 01 16 COURT FILE No.: Dryden FO-21-00000040-01

BETWEEN:

Anishinaabe Abinoojii Family Services Applicant,

— AND —

S. B-M. Northwest Angle #33 First Nation Respondents

Before: Justice D. MacKinnon

Heard on: December 18, 2023 Decision on Jurisdiction released on: January 16, 2024

Counsel: D. Buxton.......................................................................... counsel for the applicant society P. Howie......................................................................... counsel for the respondent S. B-M M. Frangione....................................................... counsel for the respondent First Nation

MacKinnon J.:

Introduction

[1] On December 8, 2023 Anishinaabe Abinoojii Family Services applied for warrants pursuant to s.81(2) of the Child, Youth and Family Services Act for the children D. B. (9 years of age) and L.B. (7 years of age).

[2] The mother, Ms. B-M, had been charged on October 28, 2023 with assaulting one of the children. On that day, in the criminal proceeding, she had been placed on conditions prohibiting her from communicating with or having contact with the children. On the afternoon of December 8, 2023 the agency says that they discovered that the release terms were changed to remove the “no contact” conditions related to the mother and children. This caused the agency to bring an emergency application for warrants for the children to ensure that the mother did not obtain custody.

[3] The application for the warrants came before me on December 8, 2023 and they were granted conditional on the agency, if the warrants were executed, commencing a child protection application which is currently before the court.

[4] The history of this matter can be summarized. The children have spent almost all of their lives in care. They were returned to their mother in September of 2022. Allegations about physical abuse arose in February of 2023. The agency says that they put a safety plan in place with the mother and other services to try to relieve the stress associated with the reunification. In the fall the school reported bruising on the face of L.B. and the subsequent investigation resulted in further concerning allegations of physical and emotional abuse from the children.

[5] The parties differ in regard to the arrangements related to the children on October 28, 2023, the day of the arrest. The mother says she never agreed to anything. There is no written agreement between the parties.

Issues

[6] The agency brought the current child protection application after execution of the warrants on December 8, 2023. A number of issues were raised by counsel for the mother and the First Nation.

1. The application was not brought within 5 days of the apprehension on December 8th, 2023 as required by s.88 of the CYFSA;
2. An application was not brought within 5 days of the apprehension on October 28, 2023 as required by s.88 of the CYFSA;
3. That there was no valid consent by the mother to the children being in care.

[7] The implication of failing to bring the application in accordance with the CYFSA is that the court would lack jurisdiction to hear the matter.

Analysis

[8] The Child, Youth and Family Services Act sets out the five day hard ceiling in s.88:

s.88 As soon as practicable, but in any event within five days after a child is brought to a place of safety under section 81, subclause 83 (1) (a) (ii) or subsection 136 (5),

(a) the matter shall be brought before a court for a hearing under subsection 90 (1) (child protection hearing);

(b) the child shall be returned to the person who last had charge of the child or, where there is an order for the child’s custody that is enforceable in Ontario, to the person entitled to custody under the order;

(c) if the child is the subject of an extra-provincial child protection order, the child shall be returned to the child welfare authority or other person named in the order;

(d) a temporary care agreement shall be made under subsection 75 (1); or

(e) an agreement shall be made under section 77 (agreements with 16 and 17 year olds).

[9] The reason for this limitation requiring child welfare agencies to bring the matter to court was reviewed by the Supreme Court of Canada in Winnipeg Child and Family Services (Central Area) v. W.(K.L.) 2000 SCC 48. The Supreme Court said:

While the infringement of a parent’s right to security of the person caused by the interim removal of his or her child through apprehension in situations of harm or risk of serious harm to the child does not require prior judicial authorization for the reasons outlined above, the seriousness of the interests at stake demands that the resulting disruption of the parent-child relationship be minimized as much as possible by a fair and prompt post-apprehension hearing.

[10] An early case dealing with this time limit is Kenora-Patricia Child and Family Services v. J.G., [2001] O.J. No. 2290. Justice J. Little, in reviewing the issue of the five day limit, states the following:

In this new context, I do not think agencies should be encouraged to ignore the plain meaning to be given to the words “as soon as practicable, but in any event within five days “ in subsection 46(1). I believe the five days are to be a maximum if needed. I note that subrule 33(1) refers to the five days as a maximum.(26)

[11] The reason for this requirement is also explained in the judgment:

Agencies may find it inconvenient to bring cases involving apprehension before the court “within five days” but parents have had their children removed from their care by way of an apprehension, often without a warrant being obtained. This intrusion in to the life of families is meant for situations in which there is harm to a child or risk of serious harm...(27)

[12] The calculation of the five days commences at the time of apprehension.

[13] Counsel for the mother argued that the method of calculating time under the Family Law Rules in Rule 3 does not apply to applications under the Child, Youth and Family Services Act. Rule 3 says;

COUNTING DAYS

3. (1) In these rules or an order, the number of days between two events is counted as follows:

4. The first day is the day after the first event.

5. The last day is the day of the second event. O. Reg. 114/99, r. 3 (1) .

COUNTING DAYS — SHORT PERIODS

(2) If a rule or order provides a period of less than seven days for something to be done, Saturdays, Sundays and other days when all court offices are closed do not count as part of the period. O. Reg. 114/99, r. 3 (2) .

[14] I note that s.1(2) of the Family Law Rules provides:

1. (2) These rules apply to all family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice,

   (a) under,

   (ii) Parts V, VII and VIII of the Child, Youth and Family Services Act, 2017…

[15] I find that the method of calculating time set out in Rule 3 does apply in regard to an application under the Child, Youth and Family Services Act.

The apprehension in October, 2023

[16] According to Ms. Chartrand, the social worker, on October 26, 2023 when the investigation into the allegations of the children was commenced, the agency told the mother that they were not apprehending the children. The mother told the workers she needed a break and her support worker, Andrea Lockyer offered to take the boys to her home for the night.

[17] On October 27, 2023, after the interviews of the children, the police determined that charges against the mother would be laid. Even on that day when the mother asked if the children would be coming into care, the worker told the mother that the children were on a respite visit and as long as the caregiver agreed to keep them, there was no reason to have them come into care.

[18] The worker says that later, in consultation with the band representative and the mother, that there was agreement that the children would be moved to Dryden. They say that such placement was a “private arrangement”.

[19] The mother in her affidavit says that she agreed that the children could stay with Ms. Lockyer until their regular respite weekend with their former caregivers in Kenora. She states that she did not consent to the children remaining out of her care since then or to the various changes to their placements which has resulted in a number of moves for the children and in the boys being separated.

[20] The agency did not confirm any agreement or consent in writing. The CYFSA has particular requirements set out in s.21(2) of the CYFSA when agreements are entered into with parents. Having no agreement in writing leaves the intention and common purpose of the mother and the agency in question. More concerning to the court is that terms related to the interaction between the mother and the children were not articulated in a written agreement, nor were any expectations of the mother established, thus leading to the concerns about the change to the mother’s criminal conditions.

[21] I find there was consent for the children to be placed with other persons until the end of the weekend. After that there are some points of agreement but overall there was no agreement or consent by the mother.

[22] Was there an “apprehension”?

[23] The Child, Youth and Family Services Act does not define “apprehension”. The ordinary definition of the word is “taking”, “capture”, “detention” or “seizure”. The agency took control of the children and determined their residential placements after the consent respite weekend, which by my calculation would be Monday, October 30, 2023. I find that this is the day that the children were in the care of the agency without the consent of the mother and could be considered “apprehended”.

[24] There is, however, another factor which is reviewed in the case of DCAS v. G.S. 2022 ONSC 805. In that case, the court found that the five day rule may not have been applicable as the child was not taken to a “place of safety” at the mother’s home as there had not been an assessment of the home. The CYFSA does define ”place of safety”:

s.74(1)“place of safety” means a foster home, a hospital, a person’s home that satisfies the requirements of subsection (4) or a place or one of a class of places designated as a place of safety by a Director or local director under section 39, but does not include a place of temporary detention, of open custody or of secure custody; (“lieu sûr”) 2017, c. 14 , Sched. 1, s. 74 (1).

Place of safety

s.74(4) For the purposes of the definition of “place of safety” in subsection (1), a person’s home is a place of safety for a child if,

(a) the person is a relative of the child or a member of the child’s extended family or community; and

(b) a society or, in the case of a First Nations, Inuk or Métis child, a society or a child and family service authority, has conducted an assessment of the person’s home in accordance with the prescribed procedures and is satisfied that the person is willing and able to provide a safe home environment for the child. 2017, c. 14 , Sched. 1, s. 74 (4).

[25] There is no evidence whether the children were taken technically to a “place of safety”, which would have triggered the five day rule. However, it seems clear that placements and decisions about placements occurred at times without the consent of the mother and that the agency was exercising its authority under the CYFSA. On the basis of this exercise of authority. I find that there was an apprehension on October 30, 2023.

[26] Contrary to their obligations under the Child, Youth and Family Services Act, the statute which gives authority to Anishinaabe Abinoojii Family Services to intervene in the relationship between children and their parents, the agency failed to bring the matter before the court within five days as set out in s.88 or at all. In addition it is troubling that at various points the agency and the mother agreed to forego bringing the matter to court.

[27] On this basis, the children D.B. and L.B. were held without legal authority and placed by the said agency following the apprehension in October.

Apprehension of December 8, 2023

[28] On December 8, 2023 when the conditions requiring no contact between Ms. B-M. and the children were terminated, warrants for apprehension were requested by the agency and the children were apprehended.

[29] This was a legal apprehension as it was authorized in advance by a warrant which was based on reasonable grounds to believe that the children could be harmed. It was a technical apprehension because the children were not in the charge of their mother at the time.

[30] The mother objects that the matter was not brought to court within five days of the apprehension as required by s.88 and argues that the court has lost jurisdiction.

[31] The apprehension occurred on December 8, 2023 which was a Friday. In accordance with Rule 3, the first day is not included and neither are the Saturday and Sunday. The application had to be in court by December 15, 2023. The first day it was in court was December 15, 2023. I find that the agency has satisfied s.88 of the Child, Youth and Family Services Act.

[32] Does the earlier October apprehension impact on jurisdiction to hear this current proceeding? I am particularly struck by similarities with the case of CAS Brant v L.DV. 2018 ONCJ 669 where the children were removed with no subsequent court action, and then returned, with another apprehension a few weeks later. Justice Baker had the following to say:

[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.

[33] I also find that the first apprehension is a discrete event which does not act to thwart the second and lawful warranted apprehension. The second apprehension is based on the accumulated allegations over a period of time which cause concern for the well-being and welfare of both children. It is surprising that an apprehension earlier in the year did not occur.

Decision

[34] The mother has had a traumatic life and suffered some terrible circumstances. Everyone had the best of intentions to assist the mother so that she could parent over the past year, at least part time. During much of that time the difficult and negative circumstances of the children continued. I note in her discussions with workers an acknowledgement of her difficulties but also an attempt to somewhat deflect responsibility by suggesting to her worker that other caregivers may have convinced the children to make their allegations. Children can love their parents but not all parents are capable of parenting. Child abuse is domestic violence which can affect the well-being of children, their self concept, and their mental state as adults.

[35] It is a caution that particularly an Indigenous child welfare agency needs to be thoughtful and cognizant of not subjecting another generation to the trauma of being emotionally and physically abused. These children have taken a risk by speaking out and the impact of their circumstances needs to be taken seriously. If their request for assistance is unanswered, it is less likely they will speak out in the future. I find that the apprehension was appropriate and based on reasonable grounds on the materials before me.

[36] Finding that the court has jurisdiction, the matter can move to the hearing of the temporary care motion.

Released: January 16, 2024 Signed: Justice D. MacKinnon