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 45(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 Information

Date: August 15, 2016

Court File No.: FO-15-00000284-0001

Ontario Court of Justice

Family Court

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. 11

Parties

Between:

Children's Aid Society of Brant Applicant

- and –

T. F. and S. C. Respondents

Reasons for Judgment

Before the Honourable Justice K. A. Baker

On August 15, 2016, at Brantford, Ontario

Appearances

• S. Labadie – Counsel for the Applicant
• M. Peters – Duty Counsel for T. F.
• S. Labadie – Agent for the Office of the Children's Lawyer

Judgment

BAKER, K. (Orally):

This is a status review application brought by the Society in relation to the subject child, B. C., born […], 2004 and now aged 11 years. The order under review is dated January 20th, 2016. That order placed the child in the care of maternal Aunt, L. P. for a period of five months. The order would have expired on June 20th, 2016.

On June 8th, 2016, just prior to the expiry of the order, the Society issued the status review application. It was then served on the mother on June 14th, 2016 and on the father on June 23rd, 2016. The first return date reflected on the application was August 2nd, 2016.

The Society did not serve the maternal Aunt with the application prior to that first return date. Ms. P. had been caring for the child for a period in excess of six months prior to the hearing of the status review application, and she was therefore entitled to service of the materials pursuant to Section 39(3) of the Child and Family Services Act. That omission was pointed out by the court at the first return, and the matter was adjourned to August 10th, 2016 to permit the Society to comply with the service requirement. Ms. P. was then duly served on August 2nd, 2016.

It's evident from this recitation of the relevant dates that the Society did not comply with Rule 33(6.1) of the Family Law Rules, which requires that status review applications be served at least 30 days prior to the date that the order for Society supervision or Society wardship expires. In its status review application, the Society accordingly sought an order extending the time for service of the application under that rule.

On the date of first return I raised the issue of compliance with Section 64(2) of the Child and Family Services Act, which states as follows:

Society to seek status review: The Society, having care, custody or supervision of the child (a) may apply to the court at any time for a review of the child's status, (b) shall apply to the court for a review of the child's status before the order expires, unless the expiry is by reason of Subsection 71(1) and (c) shall apply to the court for a review of the child's status within five days after removing the child, if the Society has removed the child from the care of a person with whom the child was placed under an order for Society supervision.

Subsection 71(1) of the Child and Family Services Act deals with a situation where an order expires by virtue of the child reaching the age of 18. It clearly doesn't apply, as the order under review is that of supervision and the child had not been removed from the caregiver. The herein status review application is caught under the requirements of subsection 64(2)(b) of the legislation.

On a plain reading of that subsection, it would appear that it would require the application be actually before the court prior to the expiry of the order. This seems logical, because as noted by the Ontario Court of Justice, Brockenshire, J. in Windsor Essex Children's Aid Society v. HY and GID, such an interpretation would recognize that once an order has expired it's questionable, to say the least, as to whether or not that order can be amended or extended.

Here the order expired on June 20th, 2016. The application was issued prior to expiry, but it was not served 30 days prior to the expiry as required by the rules. In fact, in the case of the father, it was served three days after the expiry of the order. In the case of the mother, it was served six days prior to the expiry of the order.

The selected return date of August 2nd, 2016 was more than six weeks after the expiry of the order. I accordingly queried the Society as to the propriety of entertaining an application brought in this fashion, and invited counsel to provide some authority to address the issues arising accordingly. The matter was then adjourned to August 10th, 2016 for this purpose.

At the return, Society counsel, Ms. Labadie indicated that a review of the relevant case law had been undertaken. Only one case was provided to the court; this was the decision of Justice Brockenshire on Windsor Essex Children's Aid Society v. HY [2005] 2549. This was an appeal by the Superior Court of Justice of an Ontario Court of Justice judgment, which dismissed the status review application for failure to comply with the requirements of Rule 33(6.1). The position taken by the Society was that rule 33(6.1) was ultra vires because it was outside the jurisdiction of the rules committee to promulgate. The court rejected that argument.

In the course of argument in that case, much was made of the issue of whether or not by filing the application form with the court the Society had met the mandatory requirements of Section 64(2)(b) of the Act; although this does not seem to have been an actual ground of appeal. As noted by the court, the Child and Family Services Act does not define the word 'apply,' nor is it defined in the Rules of Civil Procedure or the Family Law Rules or the Interpretation Act. Rule 8 addresses how a case is started and sets out a procedure in child protection applications, whereby an application is issued and then immediately served. The court then goes on to comment:

My conclusion is that the word 'apply' in the statute refers, primarily, to the filing of the application with the court, in that if that was done before the expiry of the order to be reviewed, that would be sufficient to give the court jurisdiction with delays or problems with service to be subsequently dealt with.

The court, however, did not decide the case on the issue of compliance or non-compliance with Section 64(2) of the Act. The appeal was on with dismissal due to non-compliance with Rule 33(6.1). The Superior Court of Justice found there was an obvious and egregious breach of the rule regarding service that supplements the statute, and concluded that the OCJ did not err in dismissing the status review application accordingly.

With respect, the court's conclusion on the meaning to be attributed to the word 'apply' in the context of Section 64(2) seems to me to be obiter dictum, in so far as it was not essential to the reasons for the decision in that case. I therefore find that I am not bound by his comments in that regard.

The decision of Windsor Essex Children's Aid Society v. DJ, 17604 was provided by Ms. McCarthy, duty counsel assisting the respondent mother on August 10th, 2016. This is a decision of the Superior Court of Justice sitting in appeal of a dismissal by the OCJ of a status review application as a result of non-compliance with Rule 33(6.1) of the Family Law Rules. The Superior Court of Justice found the trial court had erred in so far as it concluded that the best interests test could not be examined in order to extend or abridge the period required for services status review application. The court then went on to define the analysis and circumstances of lack of compliance with the rules and noted:

The right of children to have the issue of their best interests determined on the merits should not be easily rescinded because of procedural irregularity.

The instant case raises two issues that must be determined. First, has the status review application been brought in compliance with Section 64(2)(b) of the legislation, such that there is jurisdiction to make a further order of disposition pursuant to Section 65 of the Act? Second, if jurisdiction has been preserved through compliance with this Section, should the court grant the order requested pursuant to Rule 33(6.1) abridging time for service?

The first question requires an analysis of the specific meaning to be attributed to the word 'apply,' which is set out in subsection 64(2) to determine if there's been compliance with that requirement. The Supreme Court of Canada in CM v. Children's Aid Society under The Regional Municipality of Waterloo [2015] ONCA 612 described the manner by which legislation should be interpreted. Justice L'Heureaux-Dubé, speaking for the court, noted as follows:

In order to respect the wording as well as the spirit of the Act, it's crucial that this child-centric focus not be lost, even at the stage of inquiry under a status review provision. As well, such an approach is in line with modern principles of statutory interpretation expressed in Elmer A. Dreidger Construction of Statutes. In this oft-quoted passage at page 87: 'Today, there's only one principle or approach, namely the words of an Act have to be read in their entire context and in the grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament'.

Black's Law Dictionary, Seventh Edition, defines 'apply' as 'to make a formal request or motion.' So, does the act of issuing the application satisfy that definition? I have concluded it does not. All the orders that require review under Subsection 64(2) are time-limited. This particular order was of five months duration. The Society's choice not to have the matter come before the court until August 2nd, 2016 meant that the children's status under the order apparently continued for a period of six and one-half months.

The legislature cannot have intended that a Society can unilaterally extend the duration of an order by delaying issuance at the status review application and accepting, or even potentially requesting a court date considerably after the expiry of the order. That would allow the institutional litigant to effectively extend the operation of orders by fiat. Such an interpretation would fly in the face of the very dominant theme running throughout the legislation and the Family Law Rules as well as the case law as to the importance of timely and efficient management of these cases.

One of the very purposes set out in the legislation at Section 1(2)(3) recognizes that service to children should be provided in a manner so as to provide for early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests. Rule 33 sets out very specific timelines for each step in the process of managing a child protection case. Various provisions in the legislation itself, quite aside from Section 64(2), provide time constraints for various decisions and actions. The reason for this emphasis is that children are prejudiced by inefficient dilatory decision-making.

Other, perhaps more serious, mischief would arise from an interpretation of the word 'apply' to mean only issuance of the applications. Subsection 64(2) requires the Society to apply to the court for a review of a child's status within five days in a situation of apprehension. This very short timeline is consistent with the requirement to bring a protection application within five days of an apprehension of the child where there's no pre-existing order. It's a recognition that there is a need for very prompt judicial scrutiny where a child has been removed by child protective services from a caregiver. If 'apply' meant only to issue an application, it would be open to the Society, under this subsection, to remove a child from a caregiver and then have a return date weeks or months later. This can't possibly be the intention of the legislature.

In this vein I note the fairly recent comments of the Ontario Court of Appeal in CM v. Children's Aid Society [2015] ONCA 612:

Where a statute requires that the events occur within a specified timeframe, it's simply unacceptable that justice system participants fail to adhere to those timeframes.

As Justice L'Heureaux-Dubé commented on behalf of the majority in Supreme Court of Canada in Winnipeg Child and Family Services v. KLW [2000] SCC 48:

The six month delay prior to the hearing to determine whether John was in need of protection appears, on its face, to be highly unreasonable, particularly in the case of a newborn child.

This court spoke about the importance of timeliness in child welfare cases, in Children's Aid Society of Oxford County v. WTC [2013] ONCA 491:

That requires, among other things, that assessment reports be prepared with dispatch, that Children's Aid Societies make decisions in accordance with statutory timelines about how to proceed in a particular case, that meaningful case management occur in which time tables were set and witness lists are fully canvassed, that trials be scheduled so that trial days will not be stretched over months and that trial judges receive adequate time to prepare reasons in a timely fashion. We acknowledge that additional factors may contribute to a delay in particular cases. It's our hope, however, that all those involved in the child welfare system will do their part to minimize delay and to promote finality for children. The children involved in this system deserve better.

The very same logic appears, to me, to apply to the analysis of the requirements of Section 64(2). Aside from that, I also echo the comments of Brockenshire, J. in Windsor Essex Children's Aid Society. It's hard to see how an order can be amended or extended after it's already expired. That seems all the more accurate where the expiry is some time past.

Given the lack of compliance with statutory requirements, I find that the jurisdiction for status review has been lost. Even if I had accepted that the statutory requirement could be satisfied by the issuance of an application only, I would not have been inclined to grant the motion to abridge service. Although the Society here, unlike Windsor Essex v. HY did apply for an abridgment of service, similar to that case it's not provided a single reason why the relief should be granted. The affidavit of the responsible Society worker, Gerald Walsh, sworn June 8th, 2016 was filed in support of the status review application. It provides no explanation whatsoever for the lack of compliance.

The status review application was served on the parents significantly later than required by the rules. It wasn't served on the maternal aunt who was entitled to be served and to participate in the proceeding at all prior to the first return. There was no explanation for this inaction.

In coming to this conclusion, I have considered the best interests of the subject child, and in particular the interests of the child in having the matter determined on its merits. The Society is seeking to return the child to the respondent mother. The mother is consenting to that placement, as is the OCL on behalf of the child. The affidavit of Mr. Walsh, in support of the application, indicates that mother has been cooperative with the Society and has engaged in services to address the concerns. The mother is said to have made "steady improvements in her functioning". Although the affidavit indicates that "the protection concerns have yet to be totally resolved" and some concerns do seem to remain, it does not address why the residual concerns could not be addressed by way of voluntary intervention. There's nothing in the material that suggests the mother would not continue to work cooperatively with the Society on a voluntary basis. There is a clear, articulated preference in the legislation for services to be provided, wherever possible, on the basis of mutual consent. Given all participating parties agree that it's appropriate for the child to return to mother's care and given the address of the protection concerns, I do not see that a dismissal of the status review application would prejudice the child's best interests.

As a general principle, however, it seems to me that allowing the Society to arbitrarily ignore service requirements intended to ensure fundamental justice to parents is not in the best interests of children, generally. This is particularly so when there is no explanation proffered for the failure to comply. This is even more so when it's coupled with the acceptance of a first hearing date weeks after the expiry of the order that is supposedly to be reviewed.

Accordingly, for oral reasons given, the status review application shall be dismissed and the child will be returned to the mother without further order.

...WHEREUPON THIS MATTER WAS COMPLETE

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Angie Kerby, certify that this document is a true and accurate transcription of the recording of CAS v. Ferrell et al in the Ontario Court of Justice held at 44 Queen Street, Brantford, ON, taken from 0211_3_20160815_094305.dcr has been certified in Form 1.

Angie Kerby ACT ID 9104453962 1-855-443-2748 akerbytranscripts@vptranscription.com