NEWMARKET COURT FILE NO.: FC-24-340-00 DATE: 20240418 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Children and Family Services for York Region, Applicant AND: B.T., Respondent (Mother) AND: R.C., Respondent (Father) AND: Bn. T., Respondent (Maternal Grandmother/Legal Guardian)

BEFORE: The Honourable Madam Justice A.M. Daurio

COUNSEL: A. Harris, Counsel for the Applicant All Respondents – Self-represented Children’s Lawyer – G. Kay

HEARD: March 19, 2024

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

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.

(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.

Ruling on Motion

[1] On March 19, 2024, I made an Order transferring this matter to the Oshawa Superior Court. I stated the following in my Endorsement:

The Court finds that Children and Family Services for York Region lacked territorial jurisdiction to launch the within Child Protection Application pursuant to section 91 of the Child, Youth and Family Services Act, 2017.

The Court is Ordering the transfer of this proceeding to Durham Region utilizing my authority under Rule 2 of the Family Law Rules.

Reasons to follow.

[2] These are the reasons.

Brief Facts

[3] The child in this proceeding is I.T., her mother is B.T. and her father is R.C.

[4] The Court was told that there is a final parenting Order placing I.T. in the care of her maternal grandmother, Bn. T. (a copy was not provided). Based on the information provided, the Court is satisfied that Bn. T. meets the definition of a parent pursuant to section 74(1) of the Child, Youth and Family Services Act (the Act).

[5] Bn. T. resides in Durham Region and within the territorial jurisdiction of the Durham Children’s Aid Society (Durham CAS).

[6] At the time of the motion, and for a few months prior, B.T. resided in Lindsay, Ontario and within the territorial jurisdiction of the Kawartha-Haliburton Children’s Aid Society.

[7] The Society stated in its evidence that while I.T. was in the legal care of her maternal grandmother, “[I.T. had] been residing with her mother for quite a while.” The Society took the position that Bn. T. had not been protective of the child as it related to B.T., due to the conflictual and unhealthy relationship between them.

[8] The Society was not sure whether the child was with her mother at the time of the motion, or with her grandmother. Either way, the Society acknowledged that the child was not present within the territorial jurisdiction of the Society.

York CAS Historical Involvement with the Family

[9] At the time of the motion, the York Region Children’s Aid Society (“the Society”) had an open and ongoing child protection file regarding another child of B.T.

[10] The Respondent, R.C., is not the father to the other child.

[11] The protection proceedings involving B.T.’s other child went to trial in the Newmarket Superior Court starting in the fall of 2023, and recently concluded.

[12] It is clear that the Society has had extensive involvement with B. T. as a parent.

Urgent Motion

[13] On March 1, 2024, the Society filed an urgent motion and Child Protection Application regarding I.T.

[14] Given that neither I.T., nor her parents, resided in (nor were present in) York Region at the time the Society launched its Application, this Court raised questions about its jurisdiction to hear the matter.

[15] On consent of the parties who were present, an interim without prejudice Order was made placing I.T. in the care of Bn. T. subject to terms of a supervision Order. Orders relating to access between I.T. and her parents, and the appointment of the OCL were also made.

[16] The interim Order was made without prejudice to the issue of jurisdiction and the matter was adjourned to March 19, 2024, to address the jurisdictional issue. Anticipating the possibility of transferring the matter to Durham Region, the Court invited Durham CAS to send a representative for the return of the motion.

Motion to Transfer the Proceedings

[17] On the return date, the Society had filed a new motion seeking to transfer the matter to the Oshawa Court on consent and based on a preponderance of convenience.

[18] Counsel for Durham CAS, Lana Pryce, was present on the return date and confirmed that Durham CAS consented to the transfer. B.T. and Bn. T. also consented. Understandably, the newly appointed OCL (who has since been appointed to the bench) did not take a position.

[19] Because the transfer of the proceeding had been agreed upon, the Court did not need to consider submissions on this issue; however, the basis of the transfer remained an issue for the Court.

[20] The Court remained concerned that it lacked jurisdiction to make the Order on the basis requested.

The Society’s Position

[21] The Society maintained that a transfer of the proceedings could be Ordered based on the preponderance of convenience test set out at section 91(3) of the Act.

[22] In support of its position, the Society explained that between September 2023 and the Application being launched, it believed that the child was spending most of her time (unsupervised) in the care of B.T. (when she was supposed to be in the primary care of Bn. T.).

[23] The Society had significant child protection concerns relating to B.T.’s ability to parent and took the position that B.T. should not be left in a caregiving role without supervision. The Society was of the view that Bn. T. was not acting protectively.

[24] As it related to the child’s residence, the Society alleged that B.T. had been residing in York Region with I.T. from September 2023 until B.T. relocated to Lindsay, Ontario in early December 2023. It was the Society’s belief that I.T. continued to reside with B.T. in Lindsay, Ontario from December 2023 to the date of the Application.

[25] The Society acknowledged that, at the time it filed its Application, I.T. had not been present in York Region for at least three and a half months - whether she was living with her mother (as alleged), or her grandmother.

[26] Further, the Society acknowledged that I.T. had been registered to attend school in Durham Region during the 2023/2024 school year.

[27] The Society stated that it had been in ongoing communication with Durham CAS regarding its concerns for I.T. since early 2023. Durham CAS did not open an ongoing file and did not bring the matter to Court. The York Society took over the role of conducting child protection investigations involving I.T. in August 2023 – with the knowledge and acquiescence of Durham CAS.

[28] While the child was not present in, nor residing in, York Region at the time of the Application, the Society took the position that the ordinary residence of the child was not required to establish territorial jurisdiction.

[29] In her submissions, Counsel for the Society stated that the caselaw on this issue stood for the proposition that section 91 of the Act did not require that a child ordinarily reside within its territorial jurisdiction before a Society would have jurisdiction to conduct a child protection investigation (and launch a Court proceeding).

The Law

[30] Section 92 of the Child, Youth and Family Services Act deals with jurisdiction of child protection proceedings:

Territorial jurisdiction

91 (1) In this section,

“territorial jurisdiction” means a society’s territorial jurisdiction under subsection 34 (1).

Place of hearing

(2) A hearing under this Part with respect to a child shall be held in the territorial jurisdiction in which the child ordinarily resides, except that,

(a) where the child is brought to a place of safety before the hearing, the hearing shall be held in the territorial jurisdiction in which the place from which the child was removed is located;

(b) where the child is in interim society care under an order made under paragraph 2 or 4 of subsection 101 (1) or extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the hearing shall be held in the society’s territorial jurisdiction; and

(c) where the child is the subject of an order for society supervision under paragraph 1 of subsection 101 (1) or clause 116 (1) (a), the hearing may be held in the society’s territorial jurisdiction or in the territorial jurisdiction in which the parent or other person with whom the child is placed resides.

Transfer of proceeding

(3) Where the court is satisfied at any stage of a proceeding under this Part that there is a preponderance of convenience in favour of conducting it in another territorial jurisdiction, the court may order that the proceeding be transferred to that other territorial jurisdiction and be continued as if it had been commenced there.

Orders affecting society

(4) The court shall not make an order placing a child in the care or under the supervision of a society unless the place where the court sits is within the society’s territorial jurisdiction.

Caselaw

[31] The Society filed a book of authorities in advance of the return date.

[32] The cases relied upon by the Society were as follows (and summarized below): CAS Ottawa v. H.C. and C.C., Children’s Aid Society of Windsor-Essex v. C. (C.), 2000 CarswellOnt 5019, Family and Children’s Services of Guelph and Wellington County v. O.-D.B. and D.B., 2019 CarswellOnt 22029, 2019 ONCJ 961 (OCJ) and Native Child and Family Services of Toronto v. P.B., 2022 CarswellOnt 18396, 2022 ONCJ 585 (OCJ).

[33] In CAS Windsor-Essex v. C. (C.), Daudlin J. considered the case law regarding ordinary residence and jurisdiction under the Child and Family Services Act (as it then was):

[24] …in protection cases, it may well be determined that the condition of the child’s ordinarily residing in the territory of the society is not a requirement. Throughout the C.F.S.A. section on protection, the pivotal element is child safety, not child safety for ordinary resident children in the territory. As well, the paramount objective of C.F.S.A. under s. 1(a) is to promote the best interest, protection and well being of children. Under s. 15(3), societies have the duty, in fulfilling the objective, to protect children within their territories. In my view, s. 48 has more to do with establishing the territorial jurisdiction of the various societies in Ontario than conferring jurisdiction upon the court to deal with children brought before it. Nowhere in the sections of the Act concerning generate [sic] objectives and duties are there requirements of residency. I would therefore conclude that where the child ordinarily resides is irrelevant in a matter of protection.

25 … This latter conclusion in my view is supported by the findings of Zaltz J. cited s. 48(1) in finding the requirement that the child ordinarily reside in the territory for the court of the territory to hear the application. He further relied on the fact that under s. 48(1) a Society has jurisdiction over its territory as designated by the Minister under s. 15(2). As part of the act process, under s. 48(2), a hearing before a court concerning protection must take place. As stipulated, that place will normally be the territory where the child ordinarily resides. However, it does list exceptions including under s. 48(2)(a) where the child is in a place of safety before the hearing that such shall be in the territory where the child was removed. This provision considers the situation of an apprehension without a warrant. Under that provision, the issue of residence is not relevant. The hearing takes place in the territory where the removal occurred. It may thus be concluded that the triggering of a protection hearing is an incident of abuse in the territory regardless of the child’s residency.

27 … Though generally the norm in cases that the child will be an ordinary resident of the territory because abuse often becomes detected in home communities, it appears to me that the factor is not determinative of jurisdiction. A Society must be able to protect children in their territory regardless of the child’s residence. To find otherwise would produce the illogical result that a visitor or vacationer can abuse their children in a territory with impunity. In fact, such a restrictive interpretation of the provision suggests that if an Ontario resident resides in another Society territory, but abuses the child elsewhere in Ontario during a vacation, that the Society where the abuse is occurring cannot seek a protection order to apprehend the child. Clearly s. 48(3) provides for the transfer of proceedings between territories and suggests the ability of a Society to act in such circumstances.

28 …I would further conclude that the court within the territory has the jurisdiction to hear the application for protection of the child refugee situated physically within the territorial jurisdiction.

(emphasis added)

[34] In CAS Ottawa v. H.C. and C.C. – Blishen J., agreed with the analysis set out by Daudlin J., infra, stated the following:

[14] I agree. Under the Child and Family Services Act, the best interests, protection and well being of children are paramount. Children’s aid societies have the mandate and obligation to investigate allegations that children within their territorial jurisdictions may be in need of protection and to take action to protect those children, including apprehending children or bringing cases before the court where necessary, regardless of the “ordinary residence” of the children. Whether the children are in the jurisdiction as visitors, tourists, refugees or to attend school should not and does not make a difference when there are protection concerns. (emphasis added)

[35] In 2019, in Family and Children’s Services of Guelph and Wellington County v. O.-D.B. and D.B., Caspers J. summarized the caselaw up to that time and reviewed the issue of jurisdiction and ordinary residence of children pursuant to the Child, Youth and Family Services Act, she helpfully set out the principles to be considered, as follows:

40 Where the child ordinarily resides is irrelevant in matters of protection. [Children’s Aid Society of Ottawa v. C. (H.)]

41 As Justice Daudlin noted in Children’s Aid Society of Windsor-Essex v. C. (C.), [2000] O.T.C. 933, 11 Imm. L.R. (3d) 68, [2000] O.J. No. 4991, 2000 CarswellOnt 5019 (Ont. S.C.J.), A society must be able to protect children in [its] territory regardless of the child’s residence.

42 No one can argue with the paramountcy of “best interests, protection and wellbeing of children” under the Act or with the duty of children’s aid societies to protect children. But the prominent recitation of these underlying principles does not constitute a logical argument for establishing that a society’s protective duties extend towards all children, whether local and foreign, as if section 91 does not exist.

[36] The most recent case cited by the Society in their book of authorities was the 2022 decision of Pawagi J. in Native Child and Family Services of Toronto v. P.B. (NCFS v. P.B.).

[37] The facts in that case were more closely aligned with the case at bar than the other cited cases, as the child was not present within the territorial jurisdiction of Native Child and Family Services of Toronto at the time it filed its application.

[38] On the issue of territorial jurisdiction, Pawagi J. set out the following helpful analysis:

22 While the within motion deals only with the question of whether this court should transfer the proceeding from Toronto to Timmins, there is a preliminary question, as Justice O’Connell noted, that also needs to be addressed; namely, did NCFS have the authority to initiate the proceeding in Toronto in the first place?

23 Both questions have to do with “territorial jurisdiction”; both the court’s and the agency’s.

28 Turning now to the preliminary and more difficult question, did NCFS have the authority to initiate the protection application? And I say difficult not because the answer is difficult to ascertain, but rather because the answer puts the court in a difficult situation.

30 Justice Blishen described what “territorial jurisdiction” consists of in CAS of Ottawa v. H.C.: Children’s aid societies have the mandate and obligation to investigate allegations that children within their territorial jurisdictions may be in need of protection and to take action to protect those children, including apprehending children or bringing cases before the court where necessary, regardless of the “ordinary residence” of the children (emphasis added).

[39] Once the Court determined that it lacked territorial jurisdiction, Pawagi J. explored the various options available to rectify the situation, as follows:

33 It may be that the proper procedural path is for the protection application to be dismissed on the grounds that NCFS lacked the territorial jurisdiction to bring it; and then for Kunu to initiate a protection application in Timmins…taking this path would leave the child in an unprotected legal limbo and would be contrary to her best interests.

34 Another possible path can be found in Rule 5(2) of the Family Law Rules which provides that if there is “immediate danger to a child’s or party’s health or safety,” a party may start a case in any municipality and a motion may be heard in that municipality, but the case shall be transferred to the municipality provided for under s. 91(2) of the CYFSA. However, I cannot find on these facts that the child is in “immediate danger.”

35 In the end, I rely on Rule 2 of the Family Law Rules, and find that I may order the transfer based on the following:

(1) It would be fair to all the parties. They all have notice of the protection application and they would all then be able to put their positions before the court that has the jurisdiction to make the orders sought. I also note that Kunu is not taking the position that there should not be a protection application, but only that it should be heard in Toronto not Timmins.

(2) It would save time and expense as the next court date could be obtained in a timely manner as opposed to the parties having to start from scratch with respect to the drafting, serving and filing of all the documents.

(3) It would be in the best interests of the child as it would ensure the matter would be heard without a gap where the child is in the care of C.M. with no legal basis and no required oversight by any agency.

36 Transferring the proceeding to Timmins would have the result that this matter would be dealt with by the agency and the court which has the territorial jurisdiction to do so.

Analysis

[40] The Court wholeheartedly agrees that the ordinary residence of a child should not prevent a Society from taking steps to ensure the protection of children.

[41] However, the Society’s position seemed to ignore the requirement that the child (despite the child’s ordinary residence) must be present within the applicable Society’s territorial jurisdiction in order for it to act. This is a threshold issue and a pivotal factor.

[42] In fact, the caselaw filed by the Society made it clear that jurisdiction was established because the subject child was present in the territorial jurisdiction of the Applicant Societies.

[43] In the only case filed by the Society where the child was not present in the territorial jurisdiction, NCFS v. P.B., the Court found that the Applicant Society and the Court lacked jurisdiction over the child.

[44] The caselaw and the Act cannot, and should not, be interpreted to mean that any Society can reach across territorial lines into the jurisdiction of another child welfare agency and effectively usurp the other Society’s role to protect a child that resides in (and is present in) that Society’s jurisdiction.

[45] The fact that a Society has had significant involvement with the family is not relevant to the issue of jurisdiction; such factors only become relevant if a request is made to transfer a proceeding that was properly brought before the Court.

[46] It was not disputed that, at the time of this motion, I.T. did not reside in York Region, she was not present in York Region and she was not in the legal care of any parent in York Region.

[47] Further, the evidence before the Court did not establish that the child was in immediate danger.

[48] The Society argued that the Court should not be so technical in its approach to jurisdiction. The Society pointed out that there could be cases where families are transient, or where families are moving from jurisdiction to jurisdiction for the purposes of evading child welfare authorities, and that a technical interpretation of jurisdiction may prevent a Society from taking the steps necessary to protect a child in those circumstances.

[49] The Court understands the concern raised, however, in this case, the Society’s evidence highlighted that one of the strengths of this family was their stability in housing. As such, the Court is not prepared to speculate on this issue as each case must turn on its own set of facts.

[50] In this case, the person responsible for the care and welfare of I.T. was Bn. T. Any allegation that Bn. T. was not acting protectively of the child fell under the territorial jurisdiction of Durham CAS (or York CAS when the child was allegedly present in York Region).

[51] In addition to the jurisdictional issue, the motion before the Court did not establish that any specific event had occurred to justify an urgent motion, nor to explain why the York Society felt compelled to bring the matter to Court (rather than Durham CAS) on short notice.

[52] It is clear from the evidence that the allegations related to Bn. T.’s ability to protect I.T. were chronic and ongoing – and that Durham CAS was fully aware.

[53] It is also clear to this Court that the York Society lacked jurisdiction over I.T. when it filed its application, and the Court found itself in the same predicament as Justice Pawagi in NCFS v. P.B..

[54] I had a choice to make between dismissing the Application for want of jurisdiction or looking to the Family Law Rules under Rules 2 or 5 for assistance.

[55] I find that it is not consistent with the best interests, protection and well being of I.T. to simply dismiss the Society’s Application.

[56] I am not satisfied that I.T. was in immediate danger at the time the Application was filed, thus Rule 5(2) of the Family Law Rules does not assist.

[57] Rule 2 of the FLRs, which focuses on dealing with cases justly and efficiently, allows more flexibility for the Court and I find that it is in the interests of justice to transfer the proceeding pursuant to this Rule.

[58] In making this determination, I took guidance from Justice Pawagi’s analysis and considered the following factors:

1. Fairness has been established as all of the parties (other than R.C.) have been served and they (and Durham CAS) each consented to the matter transferring to the Court that has jurisdiction to make the Orders sought.
2. It would save time and expense to permit the matter to transfer, rather than having Durham CAS start the process over again.
3. It would be in the best interests of the child to ensure that she does not fall through a crack created by the Society bringing this matter to the incorrect Court.
4. I.T. and her caregiver both reside in Durham Region and they should be served by the Society located within their community.

Conclusion

[59] While I find that York CAS lacked territorial jurisdiction to launch this Application pursuant to section 91(2) of the Act, I find that it is consistent with I.T.’s best interests, and the interests of justice, to transfer the proceeding to Durham Region using my authority under Rule 2 of the Family Law Rules.

The Honourable Justice A.M. Daurio Date: April 18, 2024