Ontario Court of Justice

Central West Region

In Respect of an ex parte Application for a Warrant to Apprehend a Child in Need of Protection, Brought by

The Children's Aid Society of Brant ("CAS")

Applicant

Application Details

Date: Friday, 26 September 2014

For the Applicant: Caroline Gordon, Child Protection Worker, The Children's Aid Society of Brant

Application for: Warrant to Apprehend a Child in Need of Protection, pursuant to s. 40(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended

Decision

[1] This is an application to apprehend a child A.M., born […], 2011. A.M. currently resides with her biological mother, who recently separated from the child's biological father after making allegations of assault against the father. That/those charge(s) are pending before the Court. As a result of the charge(s), the biological father is bound by terms of release in the form of a Recognizance, which prohibits, among other things, the father from having contact with his spouse or his child.

[2] The Applicant states she has reasonable ground to believe that the biological father has repeatedly breached the terms of the release. Further, the information provided in the Information to Obtain the Warrant indicate that the surety may be actively assisting the accused in breaching the terms of release by contacting the mother on behalf of the accused.

[3] There is no information before the Court to indicate what steps, if any, that the Applicant has taken in regard to this information.

[4] As a result of the contact with the accused, the mother is indicating that she may be preparing to remove herself from the shelter and return to the matrimonial relationship with the accused.

[5] In addition, the Applicant believes that the child's grandmother, who does not reside in this country, may also be pressuring the mother to reconcile with the accused and return to the matrimonial home.

[6] Further, the Applicant believes that other family members of whom they are aware may have had knowledge of prior abuse of the mother by the accused, and failed to report same.

[7] Finally, there is information about a prior incident coming to the attention of the Applicant, however, after investigation, that matter was deemed to be due to "lack of supervision with no malicious intent to harm the child."

[8] The application is brought with commitment that the warrant would, if granted, not be "executed until and unless [the mother] leaves the shelter with the child. The Society is requesting that this warrant be valid for a period of twenty-one (21) days."

Statutory Framework

[9] The statute provides as follows:

Warrants, Orders, Apprehension, etc.

Application

40. (1) A society may apply to the court to determine whether a child is in need of protection. R.S.O. 1990, c. C.11, s. 40 (1).

Warrant to apprehend child

(2) A justice of the peace may issue a warrant authorizing a child protection worker to bring a child to a place of safety if the justice of the peace is satisfied on the basis of a child protection worker's sworn information that there are reasonable and probable grounds to believe that,

(a) the child is in need of protection; and

(b) a less restrictive course of action is not available or will not protect the child adequately. R.S.O. 1990, c. C.11, s. 40 (2).

Idem

(3) A justice of the peace shall not refuse to issue a warrant under subsection (2) by reason only that the child protection worker may bring the child to a place of safety under subsection (7).

Apprehension without warrant

(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.

Analysis and Reasons for Denial

[10] The Information to Obtain fails to establish that the child is in need of protection at this time. This is particularly true in light of the fact that the child and the mother (about whom the Applicant expresses no concern) are resident in a shelter.

[11] Further, the shelter has taken steps to ensure no further phone contact between the accused or his surety and the mother.

[12] I am aware of no authority to allow me to issue what amounts to a "conditional warrant". In fact, the wording of s.s.(3) suggests that I am precluded from issuing a warrant where "the child protection worker may bring the child to a place of safety" (emphasis mine).

[13] Further, I am mindful that, in the event that:

(a) I deny the warrant, and

(b) At some later time the mother leaves the shelter, and

(c) the mother indicates a plan to return to the matrimonial home or otherwise re-join the accused, the father of the child, and

(d) the Applicant is able to establish that the child is then in need of protection, and

(e) no less restrictive course of action is available at that time,

the Applicant may bring a new Application for judicial authorization, or

(f) if 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),

then, the Applicant may be able to exercise its rights to make an emergency seizure without prior judicial authorization.

[14] In addition, the Applicant makes statements about the intent of the child's grandmother, indicating that she may in fact be preparing to travel to Canada to become involved in this family dynamic. While the Applicant has reasons to be concerned for the willingness of the grandmother to facilitate reconciliation between the mother and the accused, thereby potentially putting the child at risk at that time, this is based on information from the mother. The Applicant has had no opportunity to assess the grandmother as a potential caregiver.

[15] There is no information before me stating that there are no additional potential caregivers or reasons why, if they exist, they are not suitable.

[16] As a result, this application is denied.

Donald Dudar Justice of the Peace