Court File and Parties

Date: April 10, 2017

Court File No.: FO-15-31-0001

Ontario Court of Justice Family Court

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

And In the Matter of T. J., a child apparently in need of protection.

Applicant: Brant Family and Children's Services (operated by the Brant Children's Aid Society)

Respondents: C.H. and S.B.

Reasons for Judgment

Before: The Honourable Justice K. Baker

On: April 10, 2017 at Brantford, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Appearances

• E. Capitano – Counsel for the Brant Family and Children's Services
• W. Drescher – Counsel for C.H.
• S.B. – In Person
• M. Bulbrook – Agent for OCL

Judgment

BAKER, J. (Orally):

This is a hearing to determine whether or not the court has been deprived of jurisdiction to hear this proceeding due to a lack of compliance with certain statutory prerequisites to the Society's apprehension of the subject child.

The mother alleges that the Society failed to bring the matter to court within five days after the child's apprehension in contravention of Section 46 of the Child and Family Services Act. The mother has further alleged the Society's warrantless apprehension of the child was undertaken without the requisite grounds as set out at Section 40(7) of the Child and Family Services Act. That aspect of the motion was not pursued during argument. The mother also points out that the time requirement set out in Rule 33 of the Family Law Rules have not been complied with. In her materials, the mother invites the court to dismiss the action as a result. This was not, however, vigorously pursued in argument.

Essentially, the mother says that the Society's lack of compliance with Section 46 of the Act in not having the matter brought to court as soon as practicable, and in any event within five days, robs the court of jurisdiction to hear the protection application.

Factual Background

The subject child is T. J., born in 2005, and now aged 11 years. The respondent, C. H., is the biological mother of the child. The father is the respondent, S. B.

There is a final Superior Court of Justice order dated July 21st, 2010 that determined custody and access issues as between the parents. Although that order has been varied on two subsequent occasions, the essential provisions with respect to custody and access continue to govern. It provides that the parents share custody of T. J. with the child moving back and forth between the parents' homes on a four-day rotation.

On December 1st, 2016, the Society's intake department received a referral from Sarah Auchterlonie, a private therapist. It was alleged that the subject child had disclosed that his mother consumed alcohol to excess whilst she was caring for the child. On one such occasion in early October 2016, the mother was said to have operated a motor vehicle with the child in it, during which time she became involved in a collision. She was said to have been impaired by alcohol at that time. There was also an allegation that the child had complained of his mother yelling and hitting him. The Society was provided with a log book the same day setting out various incidents that were said to constitute abuse by the mother against the child. This log book had been created by the respondent father.

As of the date the referral was made the child was in the care of the mother. For some reason, and despite the fact that the referent had expressed fear for the safety of the child, the respondent father and the referent herself, the Society didn't meet with either the child or the father until December 7th, 2016. The child made a number of disclosures that heightened the worker's concerns about the mother's alcohol use, as well as her treatment of the child. The child also apparently stated that the mother sometimes operated a motor vehicle after she'd consumed alcohol and on one such occasion there was a collision.

The Society's Actions

The family service worker, Karen Kehoe, addresses what came next at paragraph 19 of her affidavit sworn December 23rd, 2016. It reads as follows:

"On December 15th, 2016, after consultation with my manager, Natalie Dixon Judah(ph), I called S. B. and advised him C. H. was not to have access with T. J. that weekend until the Society was able to meet with her."

The "access" referred to here would seem to be the court-ordered custodial timesharing pursuant to the order of the Superior Court of Justice. It's not properly explained why the worker and manager in conjunction would think that they had the right to override an order of the Superior Court of Justice.

The Society worker then attempted, but was unsuccessful in contacting the respondent mother to communicate the agency's fiat suspending her contact with the child. When the child was not presented for the expected exchange on December 17th, 2016, the mother contacted her local child protection agency, that is Oxford Children's Aid Society and inquired. The mother was advised that efforts had been undertaken to contact her previously, presumably to communicate the decision. She was then directed to contact Brant Children's Aid Society, which she did.

A meeting was convened between the Brant workers and the mother on December 19th, 2016. In its factum at paragraph 7, the Society asserts:

"a meeting was held on December 19th, 2016, wherein, among other things, it was agreed that C. H.'s access would be suspended while the investigation was ongoing."

The reference for this assertion was Ms. Kehoe's affidavit sworn December 23rd, 2016, paragraphs 25 through 27 and Exhibit B to that affidavit.

The only affidavit paragraph that specifically addresses the issue of consent to the suspension of the regular timeshare is paragraph 27. The relevant portion is as follows:

"C. H. advised me that she was in agreement with the Society's plan to suspend access while the investigation was occurring. I provided C. H. with a letter that stated if she was no longer willing to consent to the plan the Society would take legal action."

Exhibit B is a copy of Ms. Kehoe's letter to the mother dated December 19th, 2016. It sets out the Society's concern that the mother was driving in an impaired state with her son as a passenger on "multiple occasions". It then goes on to say:

"As the allegations of drinking and driving pose a significant risk to your son's safety, we are putting your access on hold until the Society is able to verify the information and complete its investigation. Typically, the investigation process takes up to 30 days. Should you not be willing to cooperate with the Society's decision to suspend access for a period of time the matter will be brought to court."

The Society says in its factum that the child was deemed apprehended on December 23rd, 2016, being the date that C. H. communicated that she was not in agreement with the Society's plan for Christmas access. That was also the date on which the mother invited the Society to commence litigation. This apprehension was carried out without a warrant.

The first return of the application was December 28th, 2016, at which time a temporary without prejudice order was made placing the child in the care of the father subject to the Society's supervision and providing that the mother's contact be limited to supervised access.

As Mother was only served with the Society's materials through her solicitor on Friday, December 23rd, 2016, with the first return being the first business day after the holidays, she didn't have an opportunity to serve and file materials for that first return date. Although the Society did not attempt to secure a warrant for the apprehension, it did prepare a warrant for police records regarding the parties on December 19th, 2016. These were then secured and placed before the court on January 16th, 2017.

The Question of Consent

The mother, in her affidavit of January 19th, 2017, at paragraph 21 disputes that she ever consented to suspending her custodial time with the child. In fact, she questions how she could possibly have consented to such an arrangement when the decision to suspend her custodial time was made two days prior to it even being communicated to her. She then goes on to assert:

"At no time did I agree that I would forego my custodial time with T. J."

It is very clear from this content that there is a dispute as to whether there was, or was not consent from the mother to forego her time and custody of the child from the period beginning December 17th, 2016. This is, of course, a vital issue with respect to the timing of the apprehension.

Having been put on clear notice of the issue, the Society worker, Ms. Kehoe, responded thusly at paragraph 4 of her February 9th, 2017 affidavit:

"In response to paragraph 17, despite efforts to contact her (referring to the mother), there was no contact until December 17th, 2016, at which time the Society requested that C. H. not exercise her access during the course of the investigation, to which C. H. agreed. However, as there was no agreement respecting Christmas access arrangements, the Society deemed the child apprehended on December 23rd, 2016. T. J. was not brought into care, he remained in the care of his father."

Analysis: When Did Apprehension Occur?

The first issue to be determined is when the apprehension actually took place. As noted by the Society in its factum, an apprehension has been defined as a "action which is incompatible with the wishes of the custodial person." This is not precisely how I would be inclined to define apprehension. It does seem to me, however, that suspending a person's court-ordered custody time with a child is certainly consistent with "apprehension".

The Society says this situation arose as of December 23rd, 2016, when there was an impasse about Christmas access and the mother explicitly communicated her lack of consent to the ongoing suspension of her custodial rights. The respondent mother says the apprehension took place much earlier on December 17th, 2016, when the Society had directed the father to deviate from the terms of the court order and to withhold the child from the mother pending further direction.

First, it's difficult to understand how the Society, a state actor and institutional litigant, and accordingly a sophisticated party, could possibly conclude that it had the authority to direct the party to defy the terms of the court order. But that's what it did on December 15th, 2016. That action was, in my view, tantamount to counselling a contempt of a court order.

It is clear that as of the date the Society made the decision that the mother's custodial time, not her access time as described by the Society, would be suspended, it did not have the consent of the mother. Without consent it seems to me that the proper course for the Society would have been to seek court approval for the implementation of its decision. It did not do so and carried on unilaterally.

The Society's position seems to be that the mother subsequently consented to the arrangement and that this justifies, forgives, or absolves the Society in its initial dictate.

The Evidence Regarding Consent

I will address first the evidence as to whether the mother did or did not consent.

At the outset I would say that I am troubled by the Society's minimization of the significance of the right it was asking the mother to forego. The Society characterized that right as "access". It seems to me that imposing a supervised access regime on a parent who shares custody on an equal timesharing goes far beyond giving up an access right. This was a significant state intrusion into parental autonomy and independence by way of state action.

It is, by now, trite law that the parental right to be free from state intervention triggers the right to fundamental justice pursuant to the Canadian Charter of Rights and Freedoms. To put it in plain language, state intervention by a child protection agency is a big deal.

If an individual takes a watch to a pawnbroker, thus suspending his or her right to deal with the property for a period of time, that person leaves with a written document signed by the person clearly setting out the terms of the agreement. It is utterly baffling that a state agency and its agent would think that anything less than clear written documentation would do when dealing with the infinitely more precious item: a child.

In its materials, the Society seems to take the view that the mother agreed because we say she agreed. One would expect that even if the Society was so heedless as to decline to reduce such an agreement to writing, at the minimum, the worker would recite the precise words used by a parent to suspend his or her rights, together with a description of what was said by the worker to induce such an outcome. There is nothing of that here. The Society has not so much as produced a case note of a discussion wherein it says mother forfeited her ongoing custodial rights. The Society simply asks the court to accept Ms. Kehoe's blanket statement that the mother agreed. I do not accept this proposition.

It seems to me that the onus is on the Society to demonstrate consent, not on the mother to prove she did not consent. There is no credible and trustworthy evidence on which I could conclude that the mother consented to this significant intrusion upon her Charter protected rights.

Even if I am wrong on that point, however, and the mother made some kind of utterance, potentially indicating assent, I would not accept that this constituted actual consent. The most basic tenet of consent, particularly when given to a person in authority, is that it must be free and voluntary. There is absolutely no evidence whatsoever upon which to premise that conclusion. In fact, the evidence is to the contrary.

First, the decision was undertaken unilaterally by the Society on December 15th, 2016, two days before it was even communicated to the mother. There is no evidence that Mother was encouraged or given an opportunity to obtain legal advice before being asked to make such a momentous decision. Mother was then told in a letter dated December 19th, 2016, that should she not "cooperate" with the Society's orders the matter would be remitted to court.

The phrasing employed in this letter is, incidentally, quite different than what was represented by Ms. Kehoe. In her affidavit, Ms. Kehoe invites the court to infer that the letter confirmed the mother's consent to the suspension of her access/custodial rights. The plain language of that letter does no such thing. It reiterates that the Society has made the decision. It then informs the mother in a most authoritarian fashion that if she does not "cooperate" with that decision she will be on the receiving end of court action.

The agency should know that this is no small threat. Brant Children's Aid Society operating as Brant Family and Children's Services is a government funded actor with four in-house lawyers. Mother is a self-funded individual who was required to find a way to defend herself from this juggernaut.

Capitulating is not the same thing as consenting. The Society would do well to consider that proposition in its future dealings with parents.

I find that there was no consent to this substantial intrusion into the mother's custodial rights to this child. The intrusion occurred on December 17th, 2016, when the mother was entitled to resume custody of the child and she was prevented from doing so by the Society's edict. This interference with parental rights effectively constituted the apprehension.

Timing of the Apprehension and Court Hearing

The first return date was 11 days later. The Society did not bring the matter to court within five days as required by the legislation. It also did not trouble itself to obtain a warrant for the apprehension. It certainly had ample time to do so. The information first came to its attention on December 1st, 2016. The Society worker did not even go and see the child until six days later on December 7th, 2016, then waited another nine days to December 15th, 2016 to issue its decree. That was two days before the mother was scheduled to resume care of the child. December 15th, 2016 was a Thursday. December 16th, 2016 was a Friday. Both are business days.

During the time when the Society received the information until it acted, there were several days when the child was in the mother's care. It is difficult to reconcile that fact with any notion that the delay required to obtain a warrant would have put the child at risk. This fact is also relevant to the Society's contention advanced in argument that the mother was unable to exercise her custodial rights on December 17th, 2016, by virtue of the fact she was in a rehabilitation centre at the time. Between December 5th and 17th, 2016, December 5th being the date Mother apparently entered the residential treatment centre, Mother had been exercising her custodial rights. There is no evidential basis on which to conclude she could not have done so on December 17th, 2016. In fact, Mother's investigation into why she was being denied her custodial rights strongly implies that she was ready, willing and able to assume care of the child.

Constitutional Protections and Warrantless Apprehension

It must be reiterated, parental autonomy and parental rights are subject to protection under the Charter of Rights and Freedoms. Warrantless searches and seizures are presumptively unconstitutional. The same principle applies to removal of children from a parent's care. That is why there is a requirement that agencies obtain warrants for apprehension of children unless the child is in need of protection and there is a reasonable basis to believe that there would be 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 under (2).

Here is how the highest court in the land described the apprehension of a child:

"State removal of a child from parental custody constitutes a serious interference with the psychological integrity of a parent given the distress arising from the breaking of the bond between parent and child."

The court then went on to describe apprehension as "gross intrusion into a private and intimate sphere."

In Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, the Supreme Court of Canada was called upon to assess the constitutionality of provisions of the Manitoba Child Protection legislation that permits a child protection agency to apprehend a child from a parent's care without prior judicial authorization. It noted in its decision that the interests at stake in an apprehension are of the "highest order".

Section 40(7) of the governing legislation does authorize apprehension without prior judicial authorization, but in doing so, the worker undertaking the apprehension must meet two conjunctive preconditions. The worker must believe on reasonable and probable grounds that the child is in need of protection. The worker must also believe on reasonable and probable grounds 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 under (2).

Here, the Society does not even offer any rationale for not seeking a warrant. It had two full days from its decision that the child was at risk with the mother until the mother was actually to assume care of the child. It had ample opportunity to obtain a warrant, or at least seek one. The agency had wrongly decided that it had the authority to suspend the operation of an order of the Superior Court of Justice. Subsequent to that action and upon being called to account, it seems somewhat blasé about this remarkable disregard for fundamental justice. It would seem to retreat behind the shield of case law that emphasizes the importance of protecting children over procedural niceties. But these are not just procedural niceties. They are real risks with state interference with family units. Upsetting longstanding parenting agreements carries real risks for parents and children both.

The Society itself frequently argues that the status quo should not be lightly upset. That is why these requirements are created to ensure that there are checks and balances before changes are implemented.

Aside from that, child protection agencies would be at liberty to flatly disregard statutory prerequisites to intervention if there are no consequence to doing so. The question then is, what is the proper approach to address the situation where an agent of the state has abrogated fundamental legislative, and indeed, Charter protections?

The Statutory Five-Day Requirement

I accept the oft-repeated comments of Justice L'Heureux-Dubé from Winnipeg Child and Family Services v. K.L.W. that the analyses that are undertaken in a criminal law context are not to be imported into child protection proceedings. The CFSA is a child welfare statute not a parent rights Act. As noted by the Supreme Court of Canada, society's interest in protecting children from abuse must be paramount to all other interests. But when state actors ignore fundamental justice by disregarding the statutory requirements, children can be harmed too. This child was summarily dislocated from a longstanding parenting situation for 11 days before the Society brought the matter to court. Even then the application was timed so the mother had not one single clear business day to respond before the matter was heard at first instance. As a result, this child's routine was disrupted over an important holiday time.

It cannot possibly further children's best interests, protection, and wellbeing, if child protection agencies are permitted to run roughshod over statutory requirements that are designed to ensure timely judicial review and basic fundamental justice.

The requirement to bring the matter to court as soon as practicable, but in any event, within five days after apprehension was not complied with in this instance. As noted in Kenora-Patricia Family Services v. J.G., this section imposes a strict five-day timeline. It applies whether or not day five is a holiday. Five days is the maximum legislative timelines that must be complied with.

As noted by no less than authority than the Supreme Court of Canada in Winnipeg Child and Family Services Act v. K.L.W., the disruption of the parent/child relationship must be minimized as much as possible by a fair and prompt post-apprehension hearing. The timelines for bringing a child protection hearing hit a constitutional balance between the need for interim measures for child safety, and the requirement for a prompt post-apprehension hearing to minimize disruption and accommodate the best interests of the child.

Precedent on Loss of Jurisdiction

There is precedent in the case law for the court declining jurisdiction where the fundamental requirement of hearing within five days is not met. In Kenora-Patricia Child and Family Services v. J.G., for example, the court found that where the timelines set out in the Child and Family Services Act are not met, the court loses jurisdiction and subsequently does not have the jurisdiction to proceed with the case. Therein, the Court comments that to continue the case in the absence of compliance with a statute would be condoning child protection agencies from acting against statute without recourse.

I am very cognizant of the governing legislation that emphasize that the paramount purpose of the legislation is to promote the best interests, protection, and wellbeing of children. Part of promoting that purpose is to require that there be judicial review within five days from an apprehension. It cannot possibly further the best interests, protection, and wellbeing of children generally, if child protection agencies operating as state agents are allowed to wilfully disregard statutory requirements.

Good Faith Argument

The Society has argued that this breach was made in good faith and that this should be factored into the analysis in determining the remedy. I have some difficulty with that contention. The staff of Brant Children's Aid Society have ample access to legal training, guidance, and advice. It is difficult to understand how staff could, in good faith, think that they have the authority to override court orders without consent given in advance. Trained protection workers should have some practical sense of the magnitude of the rights they are asking parents to give up, if only temporarily. The workers are familiar with the court system and they know parents often want to, and do avail themselves of legal advice. Here there is no indication that any of the workers supposedly taking consent recommended this step to the mother.

All the workers had to do to avail themselves of the exception of the five-day rule was to undertake a temporary services agreement from the mother. There is no explanation as to why that could not have been done on December 19th, 2016. Workers negotiate those agreements all the time. No explanation for this omission is provided.

Conclusion

Apprehension of a child from an existing parenting regime is a substantial intrusion into constitutional and protective rights. The practical reality is that apprehension is a tremendous disruption to children that requires prompt review. The Society cannot be allowed to determine when it will seek such a review; that is the purview of the legislature.

In any case, this is a court of statute. Lack of compliance with the statutory prerequisites in the right circumstances is capable of depriving the court of jurisdiction, and so it is here.

I find that the Society's wilful disregard of the statutory requirement has deprived the court of jurisdiction over the protection application, and for oral reasons given, final order to go, the protection application shall be dismissed for lack of jurisdiction.

...WHEREUPON THESE MATTERS WERE CONCLUDED

Certificate of Transcript

FORM 2

Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Susan Powell, certify that this document is a true and accurate transcription of the recording of BFACS v. C. H. and J. B. in the Ontario Court of Justice held at 44 Queen Street, Brantford, Ontario, taken from Recording No. 0211_3_20170410_095636__6_BAKERKAT, which has been certified in Form 1.

Date: ___________________________

Signature of authorized persons: ___________________________

Susan C. Powell Authorized Court Transcriptionist for Ontario ID - 7479655017 519-752-2276 scpowell@rogers.com