Prescott-Russell Services for Children and Adults v. N.G. et al.

Prescott-Russell Services for Children and Adults v. N.G. et al. [Indexed as: Prescott-Russell Services for Children and Adults v. G. (N.)]

82 O.R. (3d) 686

Court of Appeal for Ontario,

Sharpe, Blair and Rouleau JJ.A.

June 22, 2006

• Version anglaise réalisée par le Centre de tradution et de documentation juridiques (CTDJ) à l'Université d'Ottawa.

Contempt of court -- Disobedience of court order -- Child protection -- Child protection worker not returning child to parents immediately as ordered by motion judge -- Worker determining that conditions in parents' home were inadequate for reception of young child -- Child being returned several days later after parents had remedied defects -- Motion judge erring in finding child protection worker and agency to be in contempt of court -- Order in child protection proceedings not having different status than any other court order for purposes of contempt proceedings but court should exercise restraint in light of statutory duties of child protection workers -- Judge erring in concluding that his order was clear and unequivocal -- Motion judge erroneously basing his conclusions on contradictory affidavit evidence -- Motion judge failing to exercise restraint -- Appeal allowed. [page687]

On a motion by Services for a declaration that a two-year-old child was a child in need of protection, the motion judge granted the declaration but ordered that the child be returned to his parents for a period of 12 months. After hearing the decision, counsel for Services asked the motion judge whether it could have a few days to conduct an evaluation of the parents' home before returning the child. The motion judge rejected this request. The next morning, a child protection worker, B, went to the home and noted that the housing was unsanitary, inadequate and unsafe for a two-year-old child. She and Services decided not to return the child but to proceed with a "technical" apprehension of the child pursuant to s. 37(2)(b) of the Child and Family Services Act, R.S.O. 1990, c. C.11 ("technical" because the child was still under the care of Services) and to provide the parents with a list of the conditions to be met before the child could be returned to them. The parents remedied the defects, but also brought a motion for an order finding Services and B in contempt of court. The motion judge granted the motion. Services and B appealed.

Held, the appeal should be allowed.

A child protection order is not a special type of order to which the law of contempt of court does not apply. If the child protection order is clear and unequivocal, the subjective good faith of the child protection worker alone -- even if the worker's intention is to act in the best interests of the child -- is insufficient to justify breaching the order. However, taking into account the complexity of the duties of those charged with child protection, as well as the dynamics of their need to respond, often on the spur of the moment, to very distressing situations, the court should always exercise restraint and prudence before making a finding of contempt of court.

The motion judge erred in finding that his order was clear and unequivocal. He made certain references to inspecting the dwelling, so that his reasons were ambiguous. Ambiguity must be resolved in favour of the person or entity charged with breaching the order. Once B observed a situation in the home which could potentially endanger the safety and health of the child, she was required to respond in compliance with her duties under the law. She decided to proceed with a "technical" apprehension of the child. Services could have taken the child along to the parents' home and, after making their observations, they could have proceeded with the apprehension. Such a procedural error should not be grounds for a contempt conviction. The motion judge also erred in law by ruling on contradictory facts contained in B's and the parents' affidavits. He should not have done this on a motion involving contempt of court.

APPEAL from an order declaring the appellants to be in contempt of court.

Cases referred to Children's Aid Society of Ottawa v. D.S., 2001 28152 (ON SC), [2001] O.J. No. 4585, [2001] O.T.C. 857, 22 R.F.L. (5th) 14, 110 A.C.W.S. (3d) 87 (S.C.), apld Other cases referred to 884772 Ontario Ltd. (c.o.b. Team Consultants) v. SHL Systemhouse Inc., [1993] O.J. No. 1488, 41 A.C.W.S. (3d) 505 (Gen. Div.); Bhatnager v. Canada (Minister of Employment and Immigration), 1990 120 (SCC), [1990] 2 S.C.R. 217, [1990] S.C.J. No. 62, 71 D.L.R. (4th) 84, 111 N.R. 185, 43 C.P.C. (2d) 213; British Columbia Government Employees' Union v. British Columbia (Attorney General), 1988 3 (SCC), [1988] 2 S.C.R. 214, [1998] S.C.J. No. 76, 31 B.C.L.R. (2d) 273, 71 Nfld. & P.E.I.R. 93, 53 D.L.R. (4th) 1, 87 N.R. 241, [1988] 6 W.W.R. 577, 50 C.R.R. 397n, 44 C.C.C. (3d) 289, 30 C.P.C. (2d) 221, 88 DTC 14,047 (sub nom. B.C.G.E.U. (Re)); Children's Aid Society of Ottawa-Carleton v. C.B., [2003] O.J. No. 1451, 121 A.C.W.S. (3d) 1043 (S.C.J.); L.J. v. G.B., [2000] O.J. No. 3030 (S.C.J.); [page688] Melville v. Beauregard, [1996] O.J. No. 1085, 62 A.C.W.S. (3d) 127 (Gen. Div.); Poje v. British Columbia (Attorney General), 1953 34 (SCC), [1953] 1 S.C.R. 516, [1953] 2 D.L.R. 785, 105 C.C.C. 311; R. v. Gray, [1900] Q.B. 36; Rogacki v. Belz (2003), 2003 12584 (ON CA), 67 O.R. (3d) 330, [2003] O.J. No. 3809, 32 D.L.R. (4th) 523, 41 C.P.C. (5th) 78 (C.A.), supp. reasons 2004 16084 (ON CA), [2004] O.J. No. 719, 236 D.L.R. (4th) 87 (C.A.); Salloum v. Salloum, 1994 18355 (AB KB), [1994] A.J. No. 304, 154 A.R. 65, 47 A.C.W.S. (3d) 317 (Q.B.); Telus Communications Inc. v. Cherubin, [2005] O.J. No. 5534, 144 A.C.W.S. (3d) 465, 68 W.C.B. (2d) 177 (S.C.J.); United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC), [1992] 1 S.C.R. 901, [1992] S.C.J. No. 37, 1 Alta. L.R. (3d) 129, 89 D.L.R. (4th) 609, 135 N.R. 321, [1992] 3 W.W.R. 481, 9 C.R.R. (2d) 29, 71 C.C.C. (3d) 225, 92 C.L.L.C. Â14,023, 13 C.R. (4th) 1 (sub nom. U.N.A. v. Alberta (Attorney General)); Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, [2000] S.C.J. No. 48, 2000 SCC 48, 150 Man. R. (2d) 161, 191 D.L.R. (4th) 1, 260 N.R. 203, 230 W.A.C. 161, [2001] 1 W.W.R. 1, 78 C.R.R. (2d) 1, 10 R.F.L. (5th) 122 (sub nom. Winnipeg Child & Family Services (Central Area) v. W. (K.L.)) Statutes referred to Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 37(2) (b), 40(7) Rules and regulations referred to Family Law Rules, O. Reg. 114/99, Rule 31

Gerald E. Langlois, Q.C., for appellant. Christine Lacasse, for Marie-Claude Bélanger. Julie Bergeron, for respondent N.G. Jocelyne Paquette-Landry, for respondent C.M.

The judgment of the court was delivered by

BLAIR J.A.: --

The Nature of the Appeal

[1] Are different criteria applicable in determining contempt of court when the protection of children is involved under the Child and Family Services Act, R.S.O. 1990, c. C.11 (the "Act")? The appeal before this court raises such an issue: an order has declared the Prescott-Russell Services to Children and Adults (the "Services") and Marie-Claude Bélanger guilty of contempt of court. Ms. Bélanger is a child protection worker, employed by the Services.

[2] Charbonneau J. had previously heard a motion submitted by the Services, requesting a declaration that the child of N.G. and C.M. -- a child who was then two years old -- needed [page689] protection, and that he should be placed under the auspices of the Services as a ward of the Crown, without visiting rights for the parents. The case was heard for five days. At the end of the trial on October 24, at approximately 5:30 p.m., the judge declared that the child was in need of protection, but ordered that he be returned to his parents, subject to a strict supervisory order by the Services for a period of 12 months.

[3] After hearing the decision, the attorney for the Services addressed the question of the return of the child. She asked the judge whether the Services could conduct an evaluation of the parents' home and whether it was possible [TRANSLATION] "...to have a period of a few days to enable us to do our evaluation and to return the child to his parents afterwards". Charbonneau J. rejected this request and ordered that the Services place the child with his parents the following day, October 25, at the latest. However, there was no transcription of the reasons for judgment nor any written order with respect to the judge's decision. The Services and Ms. Bélanger therefore responded to the order based on their understanding of the reasons given from the bench. The issue raised in this appeal is whether the order defined without ambiguity what the Services and Ms. Bélanger were to do or not to do.

[4] Under the circumstances I shall describe, the child was not placed with his parents until October 28. N.G. and M.C. filed a motion for contempt of court against the Services, Ms. Bélanger and Micheline Surprenant. The judge ruling on the motion issued his order on January 16, 2004. He found that the Services and Ms. Bélanger were guilty of contempt of court. He dismissed the motion with respect to Ms. Surprenant.

[5] In my view, the appeal should be allowed for the following reasons.

The Facts

[6] During the trial, the request that the child be declared to be in need of protection reflected the Services and the court's concern about the parents' alcohol problem and their tendency to resort to domestic violence when they were inebriated. Nothing was mentioned with regard to the state of their dwelling. The judge was convinced that the child's needs would be met if he was returned to his parents, subject to the supervision of the court and subject to appropriate conditions. Four of the seven conditions imposed by the judge relate specifically to the parents' alcohol problems. The fifth one allows the Services to have access to the child at any time and without any notice. The sixth one requires the parents to provide [page690] the Services with the necessary authorizations to obtain from any medical, therapeutic or other professional, information they deem appropriate. The seventh one simply states that the supervision period is 12 months.

[7] Immediately after the October 24, 2004 order was issued, the Services' representatives ask the parents for an inspection of their dwelling. The parents refuse to allow the inspection. Instead, they spend the evening in a restaurant celebrating their victory.

[8] The following morning, on October 25, another social worker informs the Services that she saw N.G. and C.M. in a restaurant the day before with an empty bottle of wine in front of them. After receiving this information, as they are concerned that the parents have started drinking again and do not know in what condition the parents' dwelling is -- N.G. and C.M. lived in a shed, according to (erroneous) information received by the Services -- Ms. Bélanger and Ms. Surprenant proceed to the parents' home, without the child, at 9:00 a.m. on October 25. Ms. Bélanger asserts in her supplementary affidavit that she [TRANSLATION] "certainly hope[d] to find an adequate dwelling to be able to return the child pursuant to the order". However, they found the housing to be inadequate.

[9] In her first affidavit, Ms. Bélanger stated:

5. [TRANSLATION] During our first visit, we noticed that there were no diapers or toys, nor was there any child car seat, highchair or booster seat. When I ask the parents where the child's bed is, they tell me that "the bed is in the shed." The father goes to the shed to get the mattress and returns with an old wet mattress, full of black mildew stains and holes.

[10] Ms. Bélanger also made other observations during the visit, which the motion judge lists:

(a) The parents are wearing the same clothes as the day before;

(b) The parents look worn out, their eyes are red and their voices raspy;

(c) When she asks the parents whether they consumed any alcohol, they say no;

(d) The father becomes verbally aggressive and the mother tells him to be quiet;

(e) Ms. Bélanger's opinion is that the housing is unsanitary, inadequate and unsafe for a two-year-old child because: [page691]

(i) there is mildew around the windows, in the refrigerator, on the walls and on the floors;

(ii) there are two broken windows, one of which has a hole large enough to slip the hand through and is accessible to the child;

(iii) there is a large pile of dirty dishes on the counter and in the sink;

(iv) there is dirty laundry in a corner of the bedroom and of the bathroom;

(v) there is an odour of dampness in the dwelling;

(vi) the kitchen cupboards and drawers are broken, with nails sticking out;

(vii) there is no safety latch;

(vii) a can of paint and paint remover have been left on the floor;

(viii) there is no fresh food in the refrigerator, and some of the food is mouldy;

(ix) the floor is very dirty; and

(x) there are sheets in the windows.

[11] The parents dispute most of these charges.

[12] Although Ms. Bélanger knew about Charbonneau J.'s order, she explains in her supplementary affidavit:

[TRANSLATION] I could not, however, in good conscience, place a child where his safety would be at substantial risk and where there was not the bare minimum for a young child: clean bed, booster seat, diapers, food, toys, etc.

[13] She decides to consult the Services' supervisor in charge. They resolve not to return the child but to proceed with a "technical" apprehension of the child, as provided under s. 37(2)(b) of the Child and Family Services Act. It was a "technical" apprehension because the child was still under the care of the Services and had not been returned to the parents. Ms. Bélanger noted that her decision was based on a safety assessment made at the time, and which was attached to her affidavit as Exhibit 1. The assessment mentions most of the factors already mentioned. She also refers to the risk assessment standards issued by the Ministry. [page692]

[14] Finally, Ms. Bélanger leaves the parents with a letter listing the conditions to be met in order to have the child returned to them. The list includes:

(a) mattress + appropriate bed + blanket for the child;

(b) fresh food appropriate for a two-year-old child;

(c) repair the two broken windows;

(d) store "dangerous" items and cleaning products in a place that is out of reach for the child (e.g., plastic bags, bleach, paint remover, paint, corrosive products, knives, razors, medication, etc.);

(e) fire extinguisher and operating smoke detector;

(f) provide items for the child (e.g., furniture, toys, clothing, car seat, booster seat or highchair);

(g) cleaning of the entire household (e.g., remove mildew from windows, floors, refrigerator and other locations, wash floors, clean dishes . . .);

(h) repair doors, cupboards and drawers;

(i) or find other adequate housing with a child's room.

[TRANSLATION] Contact the social worker, Marie-Claude Bélanger once the changes have been made, so that I may proceed with a new inspection of the premises and with the return of Y. to your home.

[15] During the weekend and the following Monday and Tuesday, the parents purchase a child's bed, a booster seat, as well as several other items, and make repairs to their dwelling. On Tuesday morning, October 28, their attorney notifies the Services that the parents completed the changes. The Services decide not to proceed with a motion for protection and to return the child to the parents. Ms. Bélanger returns the child that afternoon.

[16] In the meantime, on the morning of October 28, the parents file their contempt of court motion. The motion is served on the Services and on Ms. Bélanger, but it is unclear whether the motion was served before or after the decision to return the child and the return of the child.

[17] The motion judge found the Services and Ms. Bélanger guilty of contempt of court. He concluded that Ms. Bélanger acted in good faith and that she [TRANSLATION] "undoubtedly [page693] believed she had to disobey the order to protect the child". However, in his view, the subjective good faith of social workers was not sufficient. He was convinced that the order was clear and unequivocal, that the Services and Ms. Bélanger disobeyed the order wilfully and deliberately, and that the evidence established beyond a reasonable doubt that there was contempt of court.

The Analysis

[18] Overall, the motion judge did not err in his analysis of the law applicable to contempt of court. He described fairly well the relevant principles as well as the criteria required to persuade the court, and he acknowledged that the theory of restraint must be applied when issuing a contempt of court order, particularly when protective supervision of children is involved.

[19] However, with all due respect, it seems to me that the judge erred in three different ways in his reasons. First, by concluding that his order was clear and unequivocal. Secondly, he should not have based his conclusions on the contradictory evidence submitted by affidavit. Finally, in light of these errors and of the above-mentioned restraint theory which should be applied under such circumstances, the motion judge -- notwithstanding that he acknowledged this theory -- failed to exercise restraint in this matter.

[20] In view of these errors and of the comptempt of court issue herein, I shall briefly review the case law with regard to contempt of court.

[21] Lord Russell of Killowen in R. v. Gray, [1900] Q.B. 36, at p. 40 is credited with the classic definition of contempt of court:

Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court.

[22] For a more recent statement of this theory, see British Columbia Government Employees' Union v. British Columbia (Attorney General), 1988 3 (SCC), [1988] 2 S.C.R. 214, [1988] S.C.J. No. 76. In that judgment, Mr. Justice Dickson noted at para. 35: [page694]

In some instances the phrase "contempt of court" may be thought to be unfortunate because, as in the present case, it does not posit any particular aversion, abhorrence or disdain of the judicial system. In a legal context the phrase is much broader than the common meaning of "contempt" might suggest and embraces "where a person, whether a party to a proceeding or not, does any act which may tend to hinder the course of justice or show disrespect to the court's authority", "interfering with the business of the court on the part of a person who has no right to do so", "obstructing or attempting to obstruct the officers of the Court on their way to their duties" -- See Jowitt's Dictionary of English Law, vol. 1, 2nd ed., at p. 441.

Dans certains cas, l'expression "outrage au tribunal" peut être considérée comme malheureuse parce que, comme l'espèce, elle ne traduit aucune aversion, aucune répugnance ni aucun dédain particuliers à l'égard du système judiciaire. Dans ce contexte juridique, l'expression a une portée beaucoup plue large que ne les sous-entend le sens courant du mot "outrage" et englobe [Traduction] "la situation où une personne, qu'elle soit ou non partie à une procédure, accomplit un acte qui peut tendre à empêcher que la justice suive son cours ou qui témoigne d'un manque de respect pour l'autorité de la cour", [Traduction] "l'ingérence par une personne qui n'en a pas le droit dans les affaires de la cour" et [Traduction] "le fait d'entraver ou de tenter d'entraver les officiers de justice dans l'exercice de leurs functions" -- voir Jowitt's Dictionary of English Law vol. 1, 2nd ed., à la p. 441.

[23] The disputed behaviour herein falls under the category of an act intended to obstruct or interfere with the lawful process of the courts. This is not a case of aversion, abhorrence or disdain of the judicial system on the part of the appellants.

[24] There is a difference between criminal and civil contempt. The latter implies breach of judgments, orders or other court proceedings, whereas the criminal contempt of court relates to words or acts that obstruct justice or show an intention to do so. There is a public dimension to criminal contempt, that is, public harm, as opposed to the private harm concept of civil contempt. See: Poje v. British Columbia (Attorney General), 1953 34 (SCC), [1953] 1 S.C.R. 516, [1953] 2 D.L.R. 785; United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC), [1992] 1 S.C.R. 901, [1992] S.C.J. No. 37. Furthermore, criminal contempt is characterized by an act of public defiance. As the Supreme Court of Canada explained in United Nurses of Alberta, at pp. 931-33 S.C.R.: [page695]

While publicity is required for the offence, a civil contempt is not converted to a criminal contempt merely because it attracts publicity, . . . rather because it constitutes a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as to the fact that the act would publicly bring the court into contempt.

Bien que l'infraction doive avoir un caractère public, l'outrage au tribunal ne devient pas criminel du simple fait qu'il attire la publicité. Comme le soutient le syndicat, mais plutôt parce qu'il constitue un acte public de transgression à l'égard de la cour dans des circonstances où l'accusé savait que ce comportement porterait publiquement outrage au tribunal, en avait l'intention ou ne s'en souciait pas.

[25] The motion herein was filed pursuant to Rule 31 of the Family Law Rules, O. Reg. 114/99. This is therefore a case of civil contempt based on the breach of a court order. It is not alleged that either Ms. Bélanger or the Services are guilty of criminal contempt.

[26] However, notwithstanding its civil nature, contempt of court is quasi-criminal. The burden of proof is therefore the same as in criminal matters, that is, beyond a reasonable doubt. Furthermore, the party alleging contempt has the burden of proof. See Bhatnager v. Canada (Minister of Employment and Immigration), 1990 120 (SCC), [1990] 2 S.C.R. 217, [1990] S.C.J. No. 62, at p. 224 S.C.R.; Rogacki v. Belz (2003), 2003 12584 (ON CA), 67 O.R. (3d) 330, [2003] O.J. No. 3809 (C.A.), at p. 332 O.R.

The criteria

[27] The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order. See 884772 Ontario Ltd. (c.o.b. Team Consultants) v. SHL Systemhouse Inc., [1993] O.J. No. 1488, 41 A.C.W.S. (3d) 505 (Gen. Div.), at para. 18; Children's Aid Society of Ottawa v. C.B., [2003] O.J. No. 1451, 121 A.C.W.S. (3d) 1043 (S.C.J.); Children's Aid Society of Ottawa-Carleton v. D.S., 2001 28152 (ON SC), [2001] O.J. No. 4585, 22 R.F.L. (5th) 14 (S.C.); L.J. v. G.B., [2000] O.J. No. 3030 (S.C.J.); Melville v. Beauregard, [1996] O.J. No. 1085, 62 A.C.W.S. (3d) 127 (Gen. Div.), at para. 13. [page696]

Contempt within the context of child protection

[28] There is very little case law in Canada regarding contempt of court within the context of protective supervision of children. I share the view of Madam Justice Linhares- DeSousa, in Children's Aid Society of Ottawa v. D.S., supra, that an order issued in such cases is not a special type order. She noted at para. 4:

. . . I could find no legislative or jurisprudential authority for concluding that a child protection order enjoys a special status over any other order of this Court that would exempt such an order from being subject to contempt proceedings.

[29] Some of these situations may nevertheless become problematic. The agencies and child protection workers may experience a conflict between the court order and their duties, as defined under the law, when faced with the protection and best interests of the children. Restraint is therefore warranted, particularly in such situations: Salloum v. Salloum, 1994 18355 (AB KB), [1994] A.J. No. 304, 154 A.R. 65 (Q.B.), at p. 69; Children's Aid Society of Ottawa-Carleton v. D.S., supra.

[30] With respect to the problems child protection workers are generally faced with, Madam Justice L'Heureux-Dubé noted in Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519, [2000] S.C.J. No. 48, at para. 100:

. . . [C]hild protection workers are inevitably called upon to make highly time-sensitive decisions in situations in which it is often difficult, if not impossible, to determine whether a child is at risk of imminent harm, or at risk of non-imminent but serious harm, while the child remains in the parents' care. The challenging task facing child protection workers was also recognized by Lord Nicholls in his speech for the majority in In re H. (Minors) (Sexual Abuse: Standard of Proof), [1996] A.C. 563 (H.L.), at p. 592:

I am very conscious of the difficulties confronting social workers and others in obtaining hard evidence, which will stand up when challenged in court, of the maltreatment meted out to children behind closed doors. Cruelty and physical abuse are notoriously difficult to prove. The task of social workers is usually anxious and often thankless. They are criticised for not having taken action in response to warning signs which are obvious enough when seen in the clear light of hindsight. Or they are criticised for making applications based on serious allegations which, in the event, are not established in court. Sometimes, whatever they do, they cannot do right.

. . . les préposés à la protection de l'enfance doivent inévitablement prendre des décisions à des moments très critiques où il est souvent difficile, voire impossible, de déterminer s'il existe pour l'enfant un risque immédiat de préjudice ou un risque non immédiat mais sérieux lorsqu'il demeure sous la garde de ses parents. Le défi que les préposés à la protection de l'enfance doivent relever a également été reconnu par lord Nicholls dans ses motifs au nom des juges majoritaires dans In re H. (Minors) (Sexual Abuse: Standard of Proof), [1996] A.C. 563 (H.L.), à la p. 592: [page697]

[TRADUCTION] Je suis très conscient des difficultés qu'éprouvent les travailleurs sociaux et d'autres intervenants lorsqu'ils cherchent à obtenir des éléments de preuve tangibles, solides en cas de contestation devant les tribunaux, établissant les mauvais traitements que subissent des enfants en privé. Il est notoirement difficile de prouver la cruauté et la violence physique. La tâche des travailleurs sociaux est habituellement angoissante et souvent ingrate. On les critique parce qu'ils n'ont pas pris de mesures devant des signes avant-coureurs qui semblent assez évidents après coup. Ou encore on les critique parce qu'ils ont présenté des demandes fondées sur de graves allégations dont le bien-fondé n'est pas finalement établi devant le tribunal. Parfois, peu importe ce qu'ils font, ils ont tort.

[31] In sum, the same theories and criteria are applicable whether it is a case involving the protective supervision of children or any other case. If the order is clear and unequivocal, the subjective good faith of the child protection worker alone -- even if the worker's intention is to act in the best interests of the child -- is insufficient to justify breaching the order. As the motion judge noted:

[TRANSLATION] The court is not omniscient and does not have the monopoly over wisdom when deciding what is in the best interests of the child. A child protection worker or parent may very well disagree with a court's decision. This disagreement may be in good faith and based on very good reasons. However, a court's decision must be respected and complied with because the community has democratically entrusted the court with the mandate of ruling on such issues. This is essential for the survival of our democratic society and the maintenance of law and order. Otherwise, anarchy will reign.

[32] However, when taking into account the complexity of the duties of those charged with child protection, as well as the dynamics of their need to respond, often on the spur of the moment, to very distressing situations, the court should always exercise prudence and restraint before making a finding of contempt of court. [page698]

[33] I shall now review the situation in the case at hand.

Is the Order clear and unequivocal?

[34] In my view, the transcription of the exchange at the hearing between the judge and the attorney for the Services, resulting in the order at issue, does not show clearly and unequivocally that the child protection workers did something that was prohibited.

[35] Following is the judge's response to the Services' request that they be granted several days before returning the child in order to enable them to conduct an evaluation of the parents' home:

[TRANSLATION] You know that the trial is now over. The usual remedies are available to the Services. If they disagree, they can appeal, etc. Pursuant to the order, the child must be placed with the parents. Of course, the Services may go and check to make sure that everything is going well. Evidently the parents -- it is in the parents' interest to cooperate with the Services in order to show that they have a space to receive him, etc. It is late Friday evening and I am not saying that the child needs to be picked up in two minutes and handed over to them but this needs to occur by tomorrow at the latest. The dwelling may be inspected, but this is not an issue of determining whether it is right or not, or anything of the sort. I assume that the parents have a home and they will be able to -- but if they take him to a place where there are no facilities for the child or where it is dangerous for the child, or something like that. However, this will not be based on the past, but on the future, and it will be up to the Services, but we cannot -- otherwise, this would be a never-ending debate.

(Emphasis added)

[36] After having discussed a certain number of issues with the attorneys, the judge concluded his reasons as follows:

[TRANSLATION]

The respondents shall therefore pursue their regular therapy with the Addiction Services of Eastern Ontario.

I mean -- again, the child must be placed with his parents and this cannot wait. As I said, due to the late hour and all that, we can -- if it is better for the child to proceed with the transfer tomorrow morning, you may do it tomorrow morning, at the latest. However, I do hope you understand that the order has been issued.

(Emphasis added)

[37] These reasons clearly indicate that the Services were required to return the child the following day. However, it is not at all clear that the parents could not visit the parents' dwelling beforehand. The judge said: "Pursuant to the order, the child must be placed with the parents. Of course, the Services may go and check to make sure that everything is going well. . . . The dwelling may be inspected." In his view, the parents lived in a [page699] home and could take care of the child. However, the judge inferred that the Services reserved their right to protect the child's interests. He added: "but if they take him to a place where there are no facilities for the child or where it is dangerous for the child, or something like that. However, this will not be based on the past, but on the future, and it will be up to the Services..."

[38] In other words, the Services could not pursue their case against the parents with regard to the child on past grounds -- alcoholism, etc. However, if the parents live in "a place where there are no facilities for the child" or in a place that is "dangerous for the child", the Services shall not be forbidden to respond to such a situation.

[39] As I previously mentioned, there was no transcription of the reasons for judgment nor any written order with respect to the judge's decision. Therefore, the Services and Ms. Bélanger had to respond to the order based on their understanding of the reasons delivered from the bench. The above-quoted transcription demonstrates its ambiguity. And, as noted by Mr. Justice Chadwick in SHL Systemhouse Inc., supra, any doubt must be resolved in favour of the person charged with contempt. With all due respect, it appears to me that the motion judge based his decision on the last part of his reasons, quoted hereinabove in para. 36, but that he did not fully appreciate the ambiguity of the portion quoted in para. 35. He did not realize that his reasons were ambiguous, and he erred in not granting the accused the benefit of the reasonable doubt resulting from this ambiguity. The ambiguity must be resolved in favour of the person or entity charged with breaching the order: see Telus Communications Inc. v. Cherubin, [2005] O.J. No. 5534, 144 A.C.W.S. (3d) 465 (S.C.J.).

[40] The motion judge's decision, pursuant to which the Services and Ms. Bélanger breached the order wilfully and deliberately, is based on his conclusion that the order was clear and unequivocal. However, the order was not clear and unequivocal. It is incorrect to conclude that the Services and Ms. Bélanger breached the order wilfully and deliberately after the judge had told them: "Of course, the Services may go and check to make sure that everything is going well. . . . The dwelling may be inspected."

[41] Once Ms. Bélanger arrived at the parents' home and observed a situation which could potentially endanger the safety and health of the child, she was required to respond in compliance with her duties under the law. She decided to proceed with a "technical" apprehension of the child, as provided under s. 37(2)(b) of the Act. Attorneys Bergeron and Pacquette-Landry concede that the Services could have taken the child along to the parents' home and [page700] that, after making the above observations, they could have proceeded with said apprehension. In my opinion, such a procedural error should not be grounds for a contempt of court conviction.

[42] The foregoing is sufficient to dispose of this appeal and to set aside the motion judge's order. Before concluding, however, I would like to address other errors.

Contradictory evidence in affidavits

[43] The motion judge came to the conclusion that the Services and Ms. Bélanger were attempting to pursue [TRANSLATION] "the debate that had lasted throughout the five-day trial and which had ended with the court's decision in favour of the parents". In his opinion, the decision by Ms. Bélanger and her supervisor not to return the child was [TRANSLATION] "largely base[d] on well-known and fully analyzed allegations at the trial". He was therefore sceptical of Ms. Bélanger's testimony with regard to her concern about the child being placed where his safety would be substantially at risk and where there was not the bare minimum for a young child. More specifically, the motion judge rejected Ms. Bélanger's declaration in her affidavit that she [TRANSLATION] "certainly [hoped] to find an adequate dwelling that would enable her to return the child", as well as the observations she made when she arrived at the parents' home.

[44] The motion judge emphasized several factors that Ms. Bélanger had mentioned and which he considered irrelevant, or which were related to the old dispute between the parents and the Services. He referred particularly to Ms. Bélanger's observations about the parents' use of alcohol, their refusal to allow an evaluation of the home immediately following the trial, their refusal to submit to a screening test on the Saturday morning, and the fact that the father became aggressive. And the motion judge downplayed Ms. Bélanger's concerns regarding the lack of safety and of basic necessities for a child in the parents' home, ruling instead in favour of the parents' evidence that there was no problem or that everything had been exaggerated.

[45] The problem is that the entire evidence submitted to the court was in the form of affidavits. No one testified before the judge. The court should not thus rule on contradictory facts; a trial should determine what those are. This case involved a contempt of court charge -- a quasi-criminal process, where the moving party must establish beyond a reasonable doubt the accused's guilt.

[46] Therefore, with all due respect, the motion judge erred in law by ruling on contradictory facts contained in Ms. Bélanger's and the parents' affidavits. [page701]

Legitimate excuse

[47] The motion judge similarly erred with respect to the legitimate excuse defence. The judge, in fact, ruled that Ms. Bélanger did not have reasonable and probable grounds to believe that the elements under paras. (a) and (b) of s. 40(7) of the Act were present.

[48] Subsection 40(7) provides as follows:

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.

[49] The motion judge said [at para. 42]:

[TRANSLATION] Because they acted without a warrant, the respondents must comply with the provisions of subsection 40(7). The child protection worker must have reasonable and probable grounds to believe that the elements of paragraphs (a) and (b) are present. The subjective good faith of the worker is insufficient. There must be an objective criterion. If all the conditions under subsection 40(7) are met, the child protection worker is excused from following the court's orders. However, in the case of a contempt of court motion, the worker's reasonable and probable grounds should not be based on the same facts presented before the court during the trial, but on new and objectively important facts.

[Emphasis added]

[50] The motion judge thus determined that the appellants could use the legitimate excuse defence in this type of case. In other words, there may be circumstances where the child protection worker may be excused from following a court's orders. I agree with him that this defence may not be based solely on the child protection worker's subjective good faith and that objective criteria are needed. In this matter, the objective criteria are set forth at s. 40(7) of the Act. A different situation might call for different objective criteria.

[51] The scope of this defence, however, need not be determined in order to rule on this appeal. As I previously indicated, the motion judge came to the conclusion that Ms. Bélanger based her decision not to return the child on facts relating to the old dispute between the Services and the parents, and not on facts relating to the health and safety of the child. Consequently, in his opinion, she had no legitimate excuse.

[52] However, to reach this conclusion, the motion judge had to rule on factual issues by selecting some of the contradictory facts [page702] from the contradictory affidavits. He should not have done this with a motion involving contempt of court.

Caution and the requirement to exercise restraint

[53] Finally, under the heading [TRANSLATION] "caution", the motion judge made the following comments [at paras. 58 and 62], with which I agree, overall:

[TRANSLATION]

As hereinabove indicated, the Court must use caution before finding an individual or entity guilty of contempt. This power should only be used when dictated by justice. One should always keep in mind, in cases such as this, the all important goal of the children's protection. The Court is also well aware that child protection workers, such as Ms. Bélanger, have a very difficult job and that they often have a very heavy, not to say excessive, caseload. Ms. Bélanger undoubtedly believed that she had to disobey the order to protect the child.

All would agree that the protective supervision of children under Part III of the Act may only work if court orders are strictly complied with. Because of the decisions at stake and the emotions involved for those affected by court orders, social upheaval may ensue. In order to ensure that the law and, therefore, the best interests of the children under the law be upheld, court orders must be highly respected. If, for instance, a child protection worker or an entity can disregard an order because he or she thinks the order is contrary to the child's interests, the entire supervision plan may be in jeopardy.

[54] However, the order herein did not say clearly and unequivocally that Ms. Bélanger and the Services were not allowed to go to the parents' home beforehand to make sure that everything was going well and that there was no danger for the child. If Ms. Bélanger had the right to be there, she also had the right to respond -- in a legitimate situation -- in compliance with her duties under the law. It is therefore unclear that she disregarded the order. Under such circumstances, in the light of contradictory facts, and taking especially into account that child protection was at stake, the motion judge should have exercised more caution and more restraint before finding that the Services and Ms. Bélanger were guilty of contempt of court.

Conclusion

[55] For these reasons, I would allow the appeal, set aside the contempt of court order and dismiss the parents' motion for such an order.

[56] Neither the Services nor Ms. Bélanger have requested any costs. Accordingly, there shall be no order with respect to costs.

Appeal allowed. [page703]