WARNING

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

This is a case under Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, and is subject to 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.

45.— (8) Prohibition on publication of identifying information

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.

45.— (9) 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) Offence and penalty

A person who contravenes subsection 45(8) (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: 2017-06-06

Ontario Court of Justice

In the Matter of: an amended protection application under Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11, respecting J.A., born on 1 October 2013

Between:

Children's Aid Society of Toronto Applicant

— and —

S.A. Respondent

Before: Justice Manjusha B. Pawagi

Heard on: 26 April 2017

Reasons for Judgment released on: 6 June 2017

Counsel:

• Samantha-Leigh Levenson — counsel for the applicant society
• Liam M. McAlear — counsel for the respondent mother S.A.

1: OVERVIEW

[1] This case is about a three-year-old child, currently in the care of his mother, the respondent, on an interim supervision order. The only issue before this court is the protection finding and the timing of the finding; namely, whether the relevant time is as of the date of the apprehension, or only as of the date of the within protection hearing.

[2] Both parties have brought summary judgment motions. The society seeks an order on a summary judgment basis that the child is in need of protection pursuant to clause 37(2)(b) of the Child and Family Services Act, R.S.O. 1990, c. C-11 (CFSA), based mainly on drug abuse concerns as of the date of the apprehension two years ago. On disposition, the society is only seeking an order pursuant subsection 57(9) that the child remain with the respondent mother. The society is not seeking a supervision order as there are no protection concerns at the present time. The respondent mother seeks an order on a summary judgment basis dismissing the society's amended protection application on the grounds that the child is neither in need of protection as of the date of this hearing nor as of the date of the apprehension.

2: FACTS

[3] The respondent mother has no previous involvement with the society as a parent. She has a history as a child where the society had several openings from 2000 to 2007 as a result of allegations of physical abuse by her parents that were not ultimately verified.

[4] The identity of the biological father is unknown.

[5] The society's current involvement began on 11 December 2014 following a referral from a community member who reported the following:

(a) He had visited the respondent mother's home two days prior and she began smoking a crack pipe in front of her child (then age 1);

(b) She offered him sexual favours in exchange for money for drugs; and

(c) She looked like a "junkie" as she had needle marks in her arms and was extremely skinny.

[6] A society intake worker and a society high-risk infant nurse attended at the home that day. The respondent mother said she began attending a methadone clinic one month ago as she was addicted to oxycontin. She said she does not consume alcohol or any other drugs. She presented as being agitated, pacing back and forth, and holding the child without paying attention to how hard his head was swinging. The nurse examined the child and noticed marks all over his body that looked like pimples, chicken pox or bed bug bites.

[7] The worker apprehended the child because of concerns about the respondent mother's presentation and about her making inconsistent statements when speaking of her drug use. The society doctor examined the child and was concerned that he had a high temperature, a diaper rash, and appeared to be quite hungry.

[8] The child was in the care of the society from his apprehension in December 2014 until August 2015, at which time he was placed with the maternal grandfather. This placement had been opposed by the respondent mother as she alleged her father was abusive to her when she was a child. There was one serious incident that occurred while the child was with maternal grandfather. The child was found wandering the neighborhood unattended the evening of 1 June 2016 (he was 2 years old at the time). Police were involved to locate the family, but did not lay charges and the society found it to be an isolated incident.

[9] The child was placed with the respondent mother in August 2016 and has been in her care since that time.

[10] The concerns noted by the society at the time of the apprehension are all disputed by the respondent mother:

(a) Regarding her drug abuse, she provides two letters from her methadone clinic. The first letter, dated 19 February 2015 notes the following: She started attending the clinic in November 2014. She has weekly supervised urine screen which have been consistently negative for cocaine, morphine, heroin, oxycontin and benzodiazepine, with two exceptions: she had two positive screens for cocaine on 8 December 2014 and on 19 January 2015, described as "faint." She admitted to using cocaine once. She is noted as compliant, attending regularly, and interested in counselling. She is also noted as being fidgety and unsettled. The second letter, dated 13 July 2015, notes that she is progressing well, is compliant with the program, and is free from illicit drug use.

(b) Regarding the child's rash, she provides notes from walk-in clinics where she took the child. She deposes that she was first told he had an infection and was given medication, and then subsequently told it was eczema and was given a cream. She has a paediatrician, but took the child to a walk-in clinic because it was faster.

(c) Regarding her agitated presentation, she provides a CAMH report dated 5 June 2015 which notes that her physical restlessness is probably a physical reflection of her anxiety and tension, and concludes, "As long as she stays drug free, she does not have a mental disorder that would interfere with her ability to take care of her child."

[11] Subsequent concerns noted by the society regarding the time it took for the respondent mother to develop a safety plan and problems during the early access visits are also disputed by the respondent mother.

[12] There are no present protection concerns, and the respondent mother has agreed to work with the society voluntarily following the conclusion of this proceeding.

3: ANALYSIS AND THE LAW

3.1: Issue 1: Timing of the Finding

[13] The CFSA sets out the criteria for determining whether a child is in need of protection. The society is seeking a finding pursuant to clause 37(2)(b) as follows:

(2) Child in need of protection. — A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[14] There is conflicting case law on the issue of whether the critical point for the determination of a child's need for protection is at the point of apprehension or at the point of the protection hearing.

[15] Justice Lawrence P. Thibideau, in his 2005 case, Children's Aid Society of Brant v. James Albert T. and Melissa Marie S., 2005 ONCJ 302, undertakes a thorough review of the different judicial approaches up to that date:

(a) On the one hand, there are the cases headed by Re Brandon S. and Michelle S. (Infants), wherein Justice Patricia H. Wallace rejected the argument that the "present tense" wording of the Act favoured evidence at the time of the hearing, and decided that the reasonable time to consider was when the protection application was initiated. She did so because relying on the "present tense" only argument would have the unhelpful and illogical result of having the court examine whether the child was in need of protection from the foster parents after apprehension, rather than from the parents before apprehension.

(b) On the other hand is the line of cases exemplified by Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W.; and Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M.. Justice Czutrin held that the relevant time period is flexible and can be the commencement of proceeding date, the hearing date, or some other date depending on individual circumstances. He held that such an approach is in accordance with the reasoning of the Supreme Court of Canada in the case of Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M., wherein it found that the paramount objective of the Act, to promote the best interests, protection and well being of the child, is realized by having accurate and updated information available to the court. Justice Czutrin pointed out that, if the court could only consider evidence at the apprehension date, it could result in the return of the child even if the child was in need of protection at the hearing date, thus requiring a new apprehension, which would undermine the purpose of the CFSA and place the child at risk.

[16] Most recently, is the case of N.V.C. v. Catholic Children's Aid Society of Toronto, 2017 ONSC 796, wherein Justice Janet M. Wilson held, at paragraphs [54] et seq., that, for a protection finding to be made, the risk must exist at the time of the hearing, not the time of the apprehension, citing the present tense wording of the legislation and Justice Czutrin's decision in Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W.

[17] Justice Wilson's decision is an appeal judgment that has since been followed in Halton Children's Aid Society v. J.T. and Z.B., 2017 ONCJ 267. It should therefore command considerable respect from a trial court such as mine and should not be lightly dismissed. Nevertheless, it is such a marked departure from the recent case law (particularly the guidance from the Supreme Court of Canada) that it should, in my opinion, be invoked with caution.

[18] Prior to Justice Wilson's decision, the conflict in the case law was whether the court, when making a determination at a hearing about whether a child was in need of protection, was limited to evidence as at the date of apprehension or whether the court could consider evidence post-apprehension up to the hearing itself, with the more recent cases being in favour of the expanded approach.

[19] However, Justice Wilson does not just rule that evidence as at the date of the hearing is relevant, but that it is the only evidence that is relevant, positing at paragraph [62] of her decision that "Justice Czutrin respectfully disagreed with any suggestion in the case law that the time of apprehension is the time to assess the evidence of risk rather than the time of trial. His reasons make clear that the court is ultimately concerned with whether the child is in need of protection at the time of the hearing."

[20] But Justice Czutrin's reasons do not limit consideration to the time of the hearing. Justice Czutrin states at paragraph [50] of his decision that "I have come to the conclusion that the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date. This is consistent with the Act and certainly consistent with the Supreme Court of Canada decision [in Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M., supra]."

[21] Furthermore, in another case referred to by Justice Wilson, Algonquins of Pikwakanagan v. Children's Aid Society of Renfrew County, 2014 ONCA 646, the Ontario Court of Appeal upheld the findings of the trial judge, noting that the trial judge in that case "found that the girls were in need of protection in July 2009 when they were apprehended and continued to be in need of protection in August 2012 when his decision was released."

[22] Thus, it is clear from the Court of Appeal decision above and Justice Czutrin's decision in K.R., that a protection finding can be made based on the circumstances as of the date of the apprehension.

[23] The CFSA does not restrict the timing of the finding in any way; unlike, for example, the child protection legislation in Nova Scotia — subsection 40(4) of the Children and Family Services Act, S.N.S. 1990, c. 5 — which specifically sets out that the timing is as of the date of the protection hearing (emphasis added):

(4) The court shall determine whether the child is in need of protective services as of the date of the protection hearing and shall, at the conclusion of the protection hearing, state, either in writing or orally on the record, the court's findings of fact and the evidence upon which those findings are based.

[24] A restrictive approach focusing only on the circumstances as of the date of the protection hearing based on the present tense wording of the finding provision in the CFSA (whether the child "is" at risk), is inconsistent with the purpose of the Act as a whole, the provisions of which cannot be considered in isolation but rather as part of a legislative framework to promote the best interests, protection and well being of the child.

[25] To hold otherwise would make subsection 57(9) of the Ontario Act superfluous. If the only time that the court could consider for a protection finding was the time of the hearing there would never be a need to utilize subsection 57(9) which is for circumstances where the concerns relating to the finding no longer exist and thus no disposition order is required.

(9) Where no court order necessary. — Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

3.2: Issue 2: Summary Judgment

[26] Having determined that the society is not limited to demonstrating that the child is in need of protection at the time of the hearing in order to obtain a finding, I turn now to the issue of whether the child is in need of protection as of the date of apprehension. The society is seeking said finding on a summary judgment basis. The respondent mother is not only opposing that request, she is going farther by seeking an order, also on summary judgment, dismissing the society's application.

[27] The test that the parties must meet to obtain an order on summary judgment, is set out in rule 16 of the Family Law Rules, O. Reg. 114/99. The onus is on the party seeking summary judgment to set out specific facts to show there is no genuine issue requiring a trial. The party responding may not rest on mere allegations or denials but must set out specific facts that show there is a genuine issue for trial.

[28] Neither party in this case has met the high threshold required for an order on summary judgment. There is clearly a genuine issue for trial concerning whether the child is in need of protection. The respondent mother has demonstrated such by setting out evidence from the methadone clinic and CAMH, among other sources.

[29] However, simply because there is a genuine issue for trial on finding, does not mean there must be a trial. The society's position is that a protection finding is necessary, even though there are no current protection concerns, because, should concerns arise in the future, the society could then rely on findings of fact regarding past concerns. But it may be possible for the parties to agree on a statement of facts regarding concerns around the time of apprehension short of a protection finding.

4: ORDER

[30] Order to go dismissing both parties' summary judgment motions.

[31] This matter is adjourned to a date to be set by the trial co-ordinator for settlement conference on the issue of protection finding.

[32] Parties to consider preparing a statement of agreed facts for a withdrawal of the society's amended protection application setting out the initial concerns and how they were resolved. This may provide the evidentiary record sought by the society and yet avoid a trial that may damage what appears to be a positive working relationship between the parties, which would be contrary to the best interests of the child.

Released: 6 June 2017

Justice M.B. Pawagi