WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order:

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

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

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: Sault Ste. Marie 81/13

Date: 2013-11-19

Between:

CHILDREN'S AID SOCIETY OF ALGOMA, Applicant,

— AND —

R.S. and C.B., Respondents.

Before: Justice John Kukurin

Heard on: October 16, 2013

Reasons for Judgment released on: November 19, 2013

Counsel:

• Anthony Marrato — counsel for the applicant society
• Kristi Whitfield — counsel for the respondent R.S.
• Romuald Kwolek — counsel for the respondent C.B.

KUKURIN J.

Introduction

[1] This is a decision on what is ostensibly a temporary care and custody issue in this child protection case. In fact, there are several issues addressed in these Reasons, all somewhat interrelated.

The Parties

[2] The players in this drama require some formal introduction. The mother will hereafter be referred to as R, somewhat appropriately since her name is R., although not as appropriate as M. The male respondent will be referred to as C. for an equally obvious reason. However, as has recently been confirmed by paternity testing, C. is not the biological father of the child in this case. The child we will name G. The fourth actor in this case is the applicant Children's Aid Society of Algoma which somehow escapes the taboo against referral by actual name in written child protection decisions, but which, for reasons of efficiency, will be referred to acronymically as "CAS" or "the CAS", or simply as the "society".

[3] The background facts are not exceptional. R. was a handful even in her youth, exhibiting problems in her mental health, drug and alcohol abuse, aggressive and destructive behaviour, and youth crime. R. has given birth to two daughters: A. who resides with her bio-father A.A., and K. who resides with her maternal grandmother. K.'s biological father is neither C. nor A.A.; he is actually R.H. who resides in the Hamilton area, who is alleged to be a drug user, who is alleged to have sexually assaulted four girls under the age of 14, and who may (or may not) currently be incarcerated.

[4] As an adult, R.'s life has been anything but stable. She has had a series of spectacularly unsuccessful relationships with A.A. (father of A.), with R.H. (father of K.), and with J.E. who did not father a child with her. Her current relationship is with C. R. has used both marijuana and cocaine in the past. She has been involved in domestic violence, as a perpetrator in the case of A.A. of whom she was convicted of assault. She has been employed as a stripper and as an escort. She has moved back and forth between Sault Ste. Marie and Hamilton and, for stretches of time, has flitted from residence to residence, many of which have not been her own.

[5] Not surprisingly, CAS has been involved continuously with R. since she started producing offspring. This involvement has been on account of A., then K. and now G., R.'s most recently born child, a son. R. identified C. as G.'s biological father. When the CAS started this child protection application, it named R. and C. as respondent mother and respondent father respectively. While R. and C. may have occupied the same quarters occasionally, they are not actually cohabiting, but do maintain a relationship which they wish to blossom into something more lasting and more rewarding than appears to be the case at present.

[6] C. smokes marijuana, regularly and chronically. He admits this. He claims it helps him cope with anxiety. He can afford marijuana but cannot afford to buy expensive anti-anxiety prescription medication, which doesn't work as well for him in any event. C. claims he uses marijuana in small amounts, the equivalent of two joints per week. He says he does not use it to intoxication, and not in the presence of children.

[7] The CAS claims that C. uses marijuana much more frequently and in much greater quantities. It has wanted a hair follicle test from C. for some time. He has resisted despite submission to hair follicle testing being a condition of his interim access to G. C. is bald. This complicates things. He is also (now) no longer G.'s biological father. This complicates things even more.

[8] Whose paternally derived DNA forms a part of G.'s genome is not known. Whoever is the real daddy is not a party in this case.

[9] This rather pejorative introduction of R. and C. must, in fairness, be juxtaposed to information about them that is more current. R. has tested negative in her hair follicle tests at the end of March 2013 and at the end of July 2013. She coped fairly well with the birth of G. in early March despite his prematurity and lengthy stay at the North Bay hospital where he was kept in NICU. Since her return, she seems to have taken good care of the child. He is growing well, and is of good weight. She has given up her job as a "dancer" and is attending school to upgrade herself to a high school diploma. She was regularly attending the "New Link" Program, and was involved with LEAP (currently on hold). She engaged in a "Mothers for Sobriety" Program and the evidence suggests that she is not using drugs. She has her own residence which appears to be suitable for herself and G. There have been no issues of domestic violence, no police calls to her residence, and no criminal conduct on her part. She has been developing a more positive relationship with the CAS.

[10] As for C., he is a community college student pursuing a career in metal fabrication. His grades in year one were above average and he is now in his second year. He has produced favourable letters of reference from his head professor and from an instructor. He is still on probation from a criminal conviction two or three years ago, but has completed a domestic violence program (PAR), a substance abuse program, a Healthy Choices program with a number of modules geared to self-improvement. He claims his last criminal incident was in 2010 and none since. He denies any domestic strife between himself and R., and, according to R., it was C. who persuaded her to give up her remunerative career as a 'dancer'.

[11] C. has consistently refused to submit hair follicle samples for drug testing. His reasoning seems to be that he has admitted to marijuana use so why bother testing. His main reason, however, is that he has been unsure, if he was, in fact, G.'s biological father. If not, CAS has no business in analyzing his hair strands. Also, if not, C. wanted to be removed as a party respondent in this case, and he intended to pursue no further contact with G. Now that C. has been determined not to be G.'s biological father, C. wants to remain in this case as a party, has backtracked on his intention to have no access with G., and he plans to continue with his relationship with R. C. remains adamant in his refusal to participate in hair follicle testing.

[12] G. is not a party. CAS tested G.'s hair follicles after he was apprehended. His results were negative for cocaine, opioids and amphetamines but positive for oxycodone (at 20 nanograms per milligram) and cannabinoids (at 20 nanograms per milligram). His mother, R.'s hair follicle samples, from the same date were negative for cocaine and cannabinoids.

[13] CAS is the applicant. It wants a finding that G. is a child in need of protection on the grounds of risk of likely physical harm either inflicted on G. by his mother R., or resulting from R.'s failure to adequately care for, provide for, supervise or protect G.

The Background

[14] The CAS application initially sought an order placing G. with his mother subject to a society supervision order for 12 months, with a number of conditions, the most problematic of which prohibited her from allowing C. any access to G. except as permitted by the court, or as specifically agreed by CAS.

[15] In fact, CAS brought a motion (at Tab 2) for an order for temporary care and custody of G. in favour of R. A "without prejudice" order to that effect was made on the first court date of the application and motion (April 5, 2013). There were also provisions for access by C. to G. in that same order. While the CAS claim remains unchanged, it has since apprehended G. from R. (on August 20, 2013). It has withdrawn its prior motion (at Tab 2) and brought a new motion (at Tab 7) for temporary care and custody in its favour. Another (superseding) temporary care and custody order was made on August 23, 2013 on a "without prejudice" basis placing G. in the society's care. It is this new motion (at Tab 7) of the CAS to which these Reasons relate. CAS will almost certainly be seeking a different final order in its application having regard to the developments to date.

[16] The CAS considers C. as a source of actual, and/or potential harm to G. This is because of his drug use, the quantity and frequency of which CAS is unsure. CAS also considers R. as a source of risk of harm as it suspects, and more than likely believes, that she too is using drugs. Another basis for this belief by CAS is that R. has exposed G. to both oxycodone and cannabinoids. Perhaps the more immediate reason why CAS feels R. represents a risk of harm to G. is because R. is either unable or unwilling (or both) to ensure that there is no contact between G. and C. while G. is in her care and custody.

[17] In fact, C. was caught in R.'s apartment when G. was present on July 18, 2013. CAS found him hiding in the bathtub after R. denied to a society worker that C. was in her residence. R. was warned by CAS on this occasion, and it was made clear to her, that she risked losing G. if she allowed C. to have contact with G. This incident was followed by another, on August 20, 2013. On this occasion, CAS received report that R., C., and the child, G., had been seen together in C.'s truck in a Wal-Mart parking lot. The mother was confronted. She lied at first. She finally admitted this to be true. The CAS worker, after consulting with her supervisor, apprehended G. from R.'s care.

The Apprehension

[18] The circumstances surrounding the apprehension are described in the CAS affidavit (at Tab 8, paragraphs 21 to 26). A review of those circumstances does not lead me to conclude that reasonable grounds could possibly have existed, at that time, in the mind of the apprehending child protection worker, for a belief that

"… 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 section 47(1) or obtain a warrant …"

[19] This belief, based on reasonable and probable grounds, is a statutory prerequisite for apprehension of a child by a society without a warrant. G. was apprehended without a warrant.

[20] At precisely what time of the day the apprehension occurred was not disclosed in the evidence. However, G. was then at his home, with his mother, and was asleep. The mother, after some initial lies, admitted to having been in the company of the "father" C. with the child earlier on that day. The apprehension took place almost immediately following this admission. The basis for the removal of G. was the mother's (second) breach of the existing without prejudice court order dated April 5, 2013. More specifically, the mother breached paragraph 1(q) – The mother shall not permit the father to have any access to the child, except as permitted by this court, or as specifically agreed by the society.

[21] There was one intervening event between the mother's admission and the apprehension. That event was a consultation between the apprehending child protection worker and her supervisor, presumably by telephone. What was discussed in this consultation was not disclosed in the evidence.

[22] There is a disturbing casualness surrounding the apprehension of G. Apprehension of a child under the Child and Family Services Act (the "Act") is not a step to be taken with any degree of informality. The removal of a child from the care of his or her primary caregiver, especially a parental caregiver, is the single most significant step in the entire child protection regime in our law. While this involuntary physical severing of the relationship with the child and his or her caregiver results in the most impact, not to be minimized is the effect of the removal of the child from all things familiar and familial in the child's family: the constellation of persons, both family and friends, with whom the child has relationships; the child's home environment with which the child is familiar and comfortable; even the routines and every day activities that constitute the framework of a child's life. The apprehended child is initially placed in a foster home with foster parents – a place and persons who are generally completely unknown and total strangers. This is the epitome of disruption. Little wonder that the statute authorizing apprehension of children from their families contains some significant checks and balances.

[23] The scheme of section 40 of the Act is structured in such a way that all apprehensions are to be pursuant to a warrant to apprehend issued by a justice of the peace under section 40(2) of the Act.

[24] While apprehension pursuant to warrant may be the general rule, the Act makes provisions for exceptions to the general rule. Those provisions are found in section 40(7) of the Act. The warrantless apprehension of a child requires reasonable and probable grounds for a belief that two pre-requisites set out in s.40(7) are present. The Act requires that this belief be held by the child protection worker who actually apprehends the child and brings the child to a place of safety. What may be the belief of a child protection supervisor, who is not apprehending the child, is irrelevant to the statutory justification for the removal of a child. Ultimately, it is the child protection worker to whom authority to apprehend without warrant is given by the Act. The Act demands of this same child protection worker, the belief, based on reasonable and probable grounds, that both of the two specified pre-requisites exist.

[25] It should not be thought for even one second that the reasonable and probable grounds that a Justice of the Peace needs to issue an apprehension warrant are the same reasonable and probable grounds that a child protection worker needs to apprehend a child without a warrant.

[26] It is true that both need reasonable and probable grounds to believe that the child in question is a child in need of protection. Such a belief, however, cannot be just a gut feeling. The term "child in need of protection" is one that has a statutory meaning. That meaning is set out in section 37(2) of the Act. Whether it is of a Justice of the Peace, or of a child protection worker, the belief that a child is in need of protection cannot exist in a factual or statutory vacuum. The belief must be tied to at least one of the many grounds set out in section 37(2) that permit such belief to exist. Put somewhat differently, the person having the belief (or at least the reasonable and probable grounds for believing) must be able to identify from what harm or risk of harm the child needs to be protected.

[27] The second pre-requisite is not the same for the Justice of the Peace as it is for the child protection worker. For the former (the Justice of the Peace), the belief is either that a less restrictive course of action is not available, or that a less restrictive course of action will not protect the child adequately. Although these are phrased disjunctively, from a logic standpoint, the unavailability of a less restrictive course of action trumps, and effectively forecloses, consideration of whether a less restrictive course of action would adequately protect the child. What seems to be inherent in the formation of either belief is the need for information about both the availability of less restrictive courses of action, and what these courses of action involve. The source of any and all knowledge of a Justice of the Peace considering a request for an apprehension warrant is "a child protection worker's sworn information". Accordingly, it seems to follow that the contents of this sworn information must include details about alternative courses of action, why they would be inadequate to protect the child, or that these simply do not exist. A Justice of the Peace that does not have the information needed to form either one or the other of these beliefs cannot meet the second pre-requisite in section 40(1)(b), and thus would not be authorized to issue the warrant sought. The requirement of the two pre-requisite conditions for a Justice of the Peace is not disjunctive; it is conjunctive.

[28] What a Justice of the Peace requires before issuing an apprehension warrant is admittedly peripheral to the present case, but not totally irrelevant. What the child protection worker needs to apprehend without warrant, in addition to reasonable and probable grounds to believe that the child in question is in need of protection under one or more of the grounds specified in section 37(2) of the Act, are reasonable and probable grounds that

"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 section 47(1) or [to] obtain a warrant under subsection (2) [of section 40]."

[29] The wording of section 40(7)(b) is not wording to be glossed over. It is not wording that refers to a "feeling". It does refer to a belief that must be based on grounds that are not only reasonable but also probable. There is plenty of jurisprudence on the meaning of "reasonable and probable grounds" in Charter litigation and in the criminal law sphere to conclude that our law accords very demanding importance to the existence of "R. and P.G."

[30] "Reasonable" and "probable" are descriptors or adjectives for the word "grounds". They establish a standard, a minimum (not minimal) standard, in fact, below which a child protection worker's belief is insufficient to apprehend. The second most important word of R and P.G. is "and" which makes these standards conjunctive. It is not reasonable or probable; it is both. The most important word, however, is "grounds". This is a word that is imprecise when used in legal parlance, but which is employed quite often nonetheless. Its meaning is generally understood from the context from which it appears. Grounds suggest a foundation. That foundation cannot be one of opinion, or conjecture, or even a subjective assessment. Grounds in R. and P.G. must be based on facts, specifically the facts of the situation from which the R. and P.G. belief is to be derived.

[31] If R. and P.G. are the foundation, the belief is the structure that justifies the warrantless apprehension of a child. However, the requisite belief is statutorily prescribed, and it is not by any means a loosely described belief.

[32] A belief is clearly a mental construct. Subsection 40(7)(b) specifies as to what that belief in the mind of the child protection worker must be. That belief is to a risk to the child should the child not be apprehended from its caregiver.

[33] It is not of an unspecified risk to the child that will suffice for purposes of a warrantless apprehension. Subsection 40(7)(b) attaches some very detailed restrictions to the "risk" involved.

[34] Firstly, the worker's belief must be of a "substantial" risk. Risk, standing alone, carries a connotation of statistical odds that something will or will not occur in the future. However, those odds could be low, moderate or high. Any degree could constitute "risk".

[35] What the statute requires is the reasonably and probably grounded belief in a risk [of harm] that is a "substantial risk". There is an abundance of child protection case law that concerns itself with the meaning of "a substantial risk". The word "substantial" when used to describe "risk" has both a qualitative as well as quantitative connotation. Qualitatively speaking, the risk cannot be illusory or speculative; it must be a real, concrete risk. Quantitatively, the risk cannot be trifling or minimal. It must reach a threshold that is beyond a simply 50:50 chance that the risk of harm will materialize into actual harm. The word "substantial" as a modifier of "risk" raises the quality and degree of the risk [of harm] required in section 40(7)(b) to levels that are quite elevated.

[36] It is appropriate that the health and safety of the child being apprehended are the foundations for a warrantless apprehension. Nothing should trump the health or safety of any child. In the context of section 40(7)(b), it is harm to, or an adverse effect on, health or safety that the warrantless apprehension seeks to eliminate or avoid. However, by that same statutory provision, section 40(7)(b), risk [of harm] to health or safety is required to be considered over only a very limited span of time.

[37] That span of time can be of only one of two events. To preserve logic and meaning, it is the one with the shorter span of time that applies.

[38] The first is the time necessary to bring the matter on for a hearing under section 47(1). What does this mean? Whatever its meaning, it represents a discreet period of time. It is a requirement of the apprehending child protection worker that he or she know of what this time interval consists in units of minutes, hours, days or weeks. How else can such worker compare this time interval with that in the second event to determine which is the shorter time interval.

[39] The second is the time necessary to obtain a warrant under subsection (2) [of section 40 of the Act]. Section 40(2) involves presenting a sworn information to a Justice of the Peace that satisfies the statutory requirements of section 40(2) sufficiently to justify the issuance of an apprehension warrant. Again, the child protection worker intending to apprehend without warrant necessarily has to have some time interval in mind, one that can be quantified in units of time.

[40] Arriving at amounts of time for these two intervals should not be a guess. These determinations are important. There should be some factual basis and some acceptable reasoning in the process of arriving at these figures.

[41] While the comparison of these two time periods is of considerable importance [for example, to determine the lesser of them], the reason why these time periods are mentioned at all in section 40(7)(b) is of critical importance. This is because whichever of these intervals applies, it is only from the start to the end of this span of time that "substantial risk to the child's health or safety" is to be gauged.

[42] The start of the running of this time interval should coincide with the formation in the mind of the child protection worker of, at the very least, the intention to apprehend the child.

[43] The end of the lesser time interval is either the obtaining of the issued warrant to apprehend, or the moment that the "matter" [to use the word in the statute] comes before the child protection court.

[44] To recapitulate, the child protection worker's belief that is required for a warrantless apprehension of a child is quite restricted and circumscribed by the requirements of the statute. Firstly, the belief must be on both reasonable and probable grounds. Secondly, the grounds must relate to not only a risk to the child's health or safety, but to a substantial risk. Thirdly, the period of time over which this risk can persist is considerably restricted. Finally, the worker's section 40(7)(b) belief should not be guess work, speculation or a subjective feeling; it should be based on a firm factual foundation and sound reasoning.

[45] In the case of G., the apprehension took place at the child's home. G. was, in fact, asleep when the apprehending child protection worker arrived there. Only the child's mother R. was in the residence at the time. C. was not present in their home. The society's evidence of the contact between R., G. and C. prior to arrival at R.'s apartment was hearsay, plus a second-hand hearsay report that all three had been seen together earlier that day. According to the society's evidence, this information was received by telephone call to the society from someone who had observed R., G. and C. as well as two other children around 8 p.m. Accordingly, I infer that the apprehension took place later in the evening of August 20, 2013. I can, and do, take judicial notice that August 20, 2013 was a Tuesday. Also, there are no statutory holidays in the week of August 20, 2013. Courts are open for business each week day. The mother's residence is in Sault Ste. Marie. So also is this court house. Moreover, there are both Justices of the Peace and Justices of the Ontario Court of Justice presiding daily at this court house.

[46] There is no evidence of any attempt to obtain a warrant prior to the apprehension. There was no evidence of any reason why this was not done. The request for a warrant could have been made the very next day. Alternatively, the "matter" could have been brought on that same next day before a Justice of this court.

[47] What was the substantial risk to the health or safety of G. that would have existed in the less than 24 hours that followed the evening of August 20, 2013? It is evident that risk to health or safety did not emanate from the mother R. herself. It is very clear that the "substantial risk" required for an apprehension of G. without a warrant arose from the possibility of unauthorized contact between G. and C. which might take place before the society could obtain a warrant or an order to remove G. from his mother's care. What were the odds that this would happen during the night of August 20 and the day of August 21, 2013? How substantial was this risk following a confrontation of R. and her admission that her earlier behaviour that day was a mistake that she would not make again?

[48] Even if C. were to have had contact with the child G. in the hours necessary to obtain a warrant, how, in the mind of the child protection worker on the scene, would this have compromised G.'s health or his safety? Up to that point in time, there was no evidence of any adverse effects on G.'s health from any source. The child was doing fine. The evidence, in fact, pointed to a reluctance on the part of C. to even commence a relationship with G. as C. was not sure that he was G.'s biological father. The contact C was pursuing was contact with R. with whom he did want a relationship. As for safety of G., the main source of protection concern was the fact that C. smoked marijuana. However, the evidence of the society itself indicates that he did not do so excessively, and not in the presence of children.

[49] I conclude that the society's warrantless apprehension of G. on August 20, 2013 was without the requisite statutorily prescribed justification. There is no question that the mother R. breached one of the conditions of the supervision order in effect on that day. It is clear from the CAS evidence that this is the reason for the apprehension of G. This is stated by the apprehending child protection worker in her affidavit (at Tab 8, paragraph 26):

"… I explained to the mother that the child would be placed in a society approved foster home due to the fact that she breached the court order again."

The breach of a supervision order term or condition does not automatically justify apprehension without a warrant. It may in some cases where the society meets the statutory requirements for such an apprehension. Otherwise, a society must first get a warrant, or a get a judge's order to remove the child from its caregiver.

[50] This admittedly lengthy discussion in these Reasons is primarily for the benefit of the CAS in this case, and for any other society intending to apprehend any child. The job of a frontline child protection worker is not an easy one, probably most of the time. However, acceptance of such a position means complying with the statute that empowers the person in that position to remove a child from its caregiver.

[51] The foregoing portion of these Reasons may be an academic exercise. In this case there is no warrant and consequently, no possibility of quashing any warrant. This child protection court does not have jurisdiction to quash warrants in any event, or to do anything about a warrantless apprehension that fails to meet the statutory requirements of the Act. However, this court can take the circumstances of such an apprehension into account in making decisions that it does have jurisdiction to make. One such decision is on the issue of temporary care and custody which is the main claim in the present motion before this court. However, before dealing with the temporary care and custody issue, these Reasons must digress to yet another issue, one that is both relevant and important.

Party Status

[52] It is the applicant CAS which named C. as a party respondent in this child protection application. It apparently did so on R.'s identification of C. as G.'s biological father.

[53] Party status under the CFSA is not conferred automatically on biological fathers of children who are the subjects of a child protection proceeding. Biological fathers, in order to qualify for party status, must also fit within the meaning of "parent" as that word is defined in section 37(1) of the Act.

[54] In the present case, C. does not seem to fall within any of the possible definitions of a statutory parent under the Act. In fact, and despite the mother's identification of C. as the biological father of G., DNA paternity testing eliminated C. as G.'s biological father.

[55] The result is that C. is a named party who should no longer be a party. The Act is very specific as to who are parties to a proceeding such as this.

[56] There are some complications that have arisen in this case. One is that C. has filed an Answer in which he has made a claim for access to G., contingent on a finding that he is G.'s father. A second is that following the negative paternity test results, C. has brought a motion (at Tab 10) to amend his Answer by removing the contingency of his bio-parentage from his claim for access to G. He also seeks to delete from his Answer his request to be removed as a party if he should be determined not to be the father of G. His motion also seeks to reinstate his interim access to G. which to leads to the third complicating element, namely, that there is in effect an order (made without prejudice) that does award him access to G. Currently, it appears that the CAS, since learning that C. is not G.'s father, has unilaterally suspended all access to him.

[57] A fourth complication is that condition 1(q) of the existing without prejudice supervision order restricts the mother from permitting to C. access to G. "except as permitted by the court".

[58] C. cannot remain as a respondent party in this child protection case. He does not qualify as a statutory parent. Therefore he must be removed. It is not necessary that a motion be brought to remove C. I do this, despite the absence of any specific statutory provision in the Act that refers to removal of a named party in case. C. was named on misinformation. It is within the judicial role of gatekeeper to include or exclude what should be in or out in any proceeding. The gatekeeping role is not restricted to evidence. It applies to pleadings and parties as well.

[59] Not everyone can file an Answer and Plan of Care in a child protection case. This is limited to parties in the case. With the removal of C. as a statutory party, he is disentitled to have his Answer and Plan of Care remain as a pleading filed in this case. It should be struck.

[60] As for C.'s motion (at Tab 10), his claims to amend his Answer are moot if his Answer is being struck. These should be dismissed.

[61] His motion also contains a claim to delete clause 2(d) of the without prejudice order dated April 5, 2013. It provides that

"The father [C.] shall attend for all drug and alcohol testing, including hair follicle testing upon request by the society."

This clause is a condition of C.'s access to G. Although I am not inclined to award to C. the relief he requests in this motion claim, I am prepared to delete not only the condition in clause (d) of paragraph (2), but to terminate all provisions for access by C to G.

[62] Paragraph 3 of the existing interim order provides for "paternal" access to G. in favour of C. At the time that interim paternal access order was made, the court and all of the parties operated on the premise that C. was G.'s biological father. There is a vast different in the entitlement to, or at least the presumption in favour of access by a biological parent to his or her apprehended child, compared to that of someone who is not the child's biological parent.

[63] At this juncture, I am prepared to make the following orders:

(a) That C. is removed as a party in this child protection case;

(b) That the name of the proceeding is amended to delete the name of the respondent C. therefrom;

(c) That the Answer and Plan of Care of C. be struck as a pleading (but shall remain in the Continuing Record);

(d) That the motion of C. at Tab 10 is dismissed;

(e) That paragraph (3) of the interim without prejudice order dated August 23, 2013 is terminated in its entirety.

[64] What remains are the affidavits filed by C. at Tabs 11 and 12 in support of his motion at Tab 10. I do not intend to make any order with respect to these affidavits at this time. They constitute evidence filed in this case and I see no reason why they should be excluded.

[65] As for C., he clearly wishes to participate in this case as a party. Although he may not be a party by statute, he can seek party status through other means if he remains so inclined. With respect to access, anyone, party or not, may apply for access to a child who is the subject of a child protection proceeding.

Temporary Care and Custody

[66] Once a child protection application is commenced under section 40, the court is required to hold a hearing to determine the issue of whether the child in question is in need of protection. Very often, that determination is not made for quite some time. That hearing may be adjourned again and again. However, each time that hearing is adjourned, the court is required to make an order for temporary care and custody of the child who is the subject of the proceeding. The Family Law Rules which govern child protection proceedings contemplate that a temporary care and custody hearing will be held, and that a temporary care and custody order will be made within 35 days from the start of case. This case is now over seven months old. It is long overdue for a temporary care and custody order that should, in theory, persist until the section 47 hearing is completed.

[67] Claims for temporary care and custody orders are customarily brought by motion. In this case, the society's original motion sought temporary care and custody in favour of the mother R. In fact, such an order was made, qualified as a "without prejudice" order. That "without prejudice" order had conditions restricting the mother from allowing access to C. except as permitted by this court or agreed to specifically by the society. The breach of that condition on two occasions prompted the society to apprehend and seek a different temporary care and custody order.

[68] There is a statutory test in the Act which the court applies to the evidence in this case to make temporary care and custody determinations. The test places the onus on the CAS to satisfy the court of two things before the court can make a temporary care and custody order that removes the child from his usual caregiver. These are firstly, reasonable and probable grounds to believe that there is a risk that the child is likely to suffer harm (if the child is not removed); and secondly, reasonable and probable grounds to believe that the child cannot be adequately protected by an order made under clause 2(a) or 2(b) [of section 51(2) of the Act].

[69] Despite any interim orders made in this case, and despite factual events (including apprehension of G.) that have taken place, the onus and the basic test remain the same.

[70] In this case, it can be inferred from the April 5, 2013 "without prejudice" order that the society did not meet the onus of satisfying this court of this two part test. Accordingly, it follows logically that some new factual events must have occurred since that order was made to now justify an order removing G. from R.'s care. Either that, or new evidence has become available that was not available previously.

[71] There are two major pieces of evidence that militate in favour of a removal order. The first is R.'s failure to comply with the condition in the interim (without prejudice) supervision order that she not allow unauthorized access to G. by C. The second is that hair follicle testing of G. after he was apprehended resulted in positive readings for oxycodone and cannabinoids.

[72] There is little doubt that the mother made very poor choices in allowing C. to have contact with G. on July 18, 2013, and again on August 20, 2013. The wording of paragraph 1(q) of the order dated April 5, 2013 is not ambiguous nor is it vague. There is plenty of evidence that R. was cautioned and warned by the society that she must not allow contact between C. and G. There is ample evidence that she understood what she was not permitted to do, especially after the July incident. I discount entirely her argument that the society's letter to her contradicted these verbal cautions and warnings, and that the letter essentially permitted her to be in company of both C. and G. elsewhere than at her residence or at his residence. The letter (exhibit A, Tab 13) sets out the society's expectations of the mother R. The society did not specifically agree to such access by G. to C. in its letter. Moreover, there was another term that restricted the mother to permitting access by C. only "as permitted by this court". The court order did contain provisions for access by C. to G. but those provisions clearly did not encompass the contacts of July 18 or August 20.

[73] As for positive hair follicle test results for G., these are of some concern in determining temporary care and custody. However, the evidence as to these tests is not particularly conclusive of anything. The main focus of a temporary care and custody determination is risk of likely harm and whether the child can be adequately protected from that harm.

[74] I am satisfied on the evidence that the society has met the first part of the two part test in section 51(3) of the Act. All the court needs is to be satisfied that reasonable grounds exist to believe that some harm is likely to befall the child if left in the mother's care. The mother's failure to abide by a court ordered condition, twice, and her present intention to continue her relationship with C. are sufficient reasons in themselves. There are also the historical reasons, set out earlier, even though tempered by the mother's progress since she became pregnant with G., that add to these reasonable grounds.

[75] As for the second part of the test, I am not convinced that G. cannot be adequately protected by an order of this court. While the evidence now is different than it was when the April 5, 2013 order was made, that difference does not favour only the society's position.

[76] The second part of the section 51(3) test involves adequacy of protection of the child. Protection from what? The answer is protection from risk of harm. The next logical question is "what harm"? In this case, the harm identified in the application was physical harm. It is quite clear from the evidence and the claims of the society that the major source of potential harm to G. is C. Accordingly, eliminating C. as a source of potential harm reduces to an acceptable level the risk of likely harm to G. There is nothing implicit in this reasoning that should be construed as a judicial finding that C. is, in fact, a source of risk of physical harm to G. This is what the society believes. C. does not. This is an issue to be decided at some point in this case.

[77] Elimination of C. is already well under way. Firstly, he is scientifically excluded from paternity of G. This has significant consequences. He has no entitlement as a bioparent to access to G. He has no right to demand that he have any relationship with G. Many of the section 37(3) factors that favour parental access do not apply in the case of a non-biological parent.

[78] Secondly, C. is excluded as a party in this case. He cannot participate or even attend without permission from this court.

[79] There are also factual circumstances that distance C. from G. They do not reside in the same home. C. is a full time college student and subject to academic demands on his time.

[80] The mother R. has lost care and custody of G. since he was apprehended on August 20, 2013. C. has been in foster care now for almost three months. It should now be crystal clear to the mother R. that she cannot permit any contact between G. and C., and there will be consequences if she does. In fairness to the mother, it was C. who was more aggressive in pursuing contact with R. and G. While the mother allowed unauthorized contact on two occasions, the society's own evidence indicates that the mother rejected C.'s attempts to make contact with her and the child more than twice, and did so successfully on those other occasions.

[81] Perhaps the most effective means of eliminating C. from G.'s life at the moment is an order pursuant to section 80 of the Act. A restraining order goes much farther than merely terminating interim access rights. An order under section 80 can restraining or prohibit C.'s access to or contact with G. and can be supplement with appropriate directions to implement the order.

[82] A section 80 order is not frequently encountered in child protection proceedings. Typically, it restrains contact between the child and a person who is clearly identified as a source of potential harm to the child. However, these are not the only circumstances in which a section 80 order can be employed. In fact, there are no criteria specified in the statute which might restrict the making of such an order.

[83] There are some preconditions to a section 80 order. It can be made in addition to an order under section 51(2) which is precisely the situation in this motion. It requires notice of the proceeding to have been served personally on the person to be named in the order. In this case, C. has been personally served with the child protection application which I consider tantamount to notice of the proceeding. Finally, the section 80 order must be made in the child's best interests.

[84] The best interest considerations are set out in the statute at section 37(3). In my view, the best interests of C. are served by his being in the temporary care and custody of his mother R., so long as he can be adequately protected. The making of a section 80 order advances these best interests by erecting a very effective rampart between C. and G., thereby all but eliminating C. as a source of potential harm to G. I do not see the termination or suspension of contact between C. and G. as adversely affecting C.'s best interest. There is very little evidence of any psychological relationship between them to date. In fact, C. was very ambivalent about pursuing any relationship with G. until recently.

[85] Section 80(3) provides for the duration of such orders. The court is given several options as to duration. My preference would be to include a provision that such order continue in force until varied or terminated by this court.

[86] The other main protection concern arises from the discovery of oxycodone and cannabinoids in G.'s hair follicles. The same question must be asked with respect to this concern. Protection from what harm? To have oxycodone and cannabinoids in one's hair follicles at a concentration of 20 nanograms per milligram, even for someone of the age of G., does not establish that this is harmful to either health or safety. Even the society's evidence of conversations with Motherisk personnel, which I hardly need point out is hearsay of non-expert opinion, raises more questions than it addresses. In absence of better evidence, I decline to make any inferences that the concentrations of these substances are harmful to C., or that the mother is actively using cannabinoids or oxycodone, or from what source C. acquired these substances. I am presented by the society with evidence that the mother had two hair follicle tests earlier this year which included negative test results for cannabinoids. Oxycodone, I note, is not an illegal drug so long as it is prescribed by a properly qualified person.

[87] Accordingly, I intend to make an order pursuant to section 51(2)(b) placing C. in the temporary care and custody of his mother R. In addition to concluding that the society has not met the second part of the test in section 51(3), I am additionally drawn to making this temporary care and custody order because of what I consider the unauthorized warrantless apprehension of G. by the society. While this court has no effective legal remedy to countermand such apprehensions, it can consider these as factors influencing the order it may make in the proceedings that follow.

[88] Section 51(2)(b) refers to imposition of such reasonable terms and conditions as the court considers appropriate. This is further expanded in section 51(3.2). In the present case, there has been some disagreement, or at least some differential interpretation of one such condition. Clearly, with the orders I propose to make, there will likely be a need to reconsider what terms and conditions will be appropriate to impose. There should be clarity with respect to any condition that applies to the mother's permitting any contact between G. and C.

[89] The section 80 order will be directed at C. Breach of that order can result in sanctions under section 85 of the Act. It can also lead to charges under section 127 of the Criminal Code. For either, imprisonment is a possibility.

Released: November 19, 2013

Justice John Kukurin, Ontario Court of Justice