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

Ontario Court of Justice

Date: May 16, 2017

Court File No.: 0211-18-000013-00

In the Matter of: An application by the Children's Aid Society of Brant under subsection 40(2) of the Child and Family Services Act, R.S.O. 1990 c. C-11, for a warrant to apprehend the children A.L. and K.L.

Before: Justice of the Peace Dudar

Heard on: May 16, 2017

Reasons for Judgment released on: May 16, 2017

Reasons for Judgment

Dudar JP.:

[1] This is in respect of an ex parte application, brought by way of an Information to Obtain a Warrant to Apprehend pursuant to s40(2) of the Child and Family Services Act, R.S.O.1990, c.C.11. The Order sought is for the apprehension of children AL (approximately 2 years of age) and KL (an infant). They have the same mother but different fathers. Grandmothers of each child have been involved in the care of their respective grandchildren.

[2] The Children's Aid Society of Brant o/a Brant Family and Children's Services (the "Society") has had involvement with mom for about the last year. The Society's involvement includes contact with mom as a result about concerns relating to pre-natal care for the younger child. The Society has received reports of physical abuse by one of the dads; in addition, there are reports that each of the children have been left with their respective grandmothers, and in one other case, with a "friend" for indeterminate periods of time. In one instance, the child was ill and required attention to recuperate. There are concerns regarding housing, and ability to provide for the child(ren). However, the thread which permeates the bulk of the information provided in support of the apprehension relates to the lack of cooperation by mom in meeting with Society personnel, or on those rare occasions when contact is established, following through on suggestions or recommendations.

[3] The Affidavit in support of the Warrant to Apprehend, however, fails to detail in any way whatsoever, the possible role of the grandmothers in demonstrating that "a less restrictive course of action is not available or will not protect the child adequately." I note the decision of M.J. Hatton J. in Children and Family Services for York Region v. A.P., [2005] O.J. No. 3223. At paragraph 137, Justice Hatton confirms: "In order to obtain a warrant of apprehension, section 40(2) requires a child protection worker to explain why a course of action less restrictive than the child's removal to a place of safety is not available or will not adequately protect the child." In the following paragraphs, Justice Hatton further explains:

(138) On the night of the apprehension, there was no evidence that York CAS attempted to have any discussions with A.P. about options other than placing Z.P. in a foster home. There was no evidence that the emergency worker attempted to obtain from A.P. the home telephone number and/or address of F.P. so that he could be contacted. Although A.P. was resistant and uncooperative with the police, some of the tension in the situation may have been alleviated if she had been given the option of a temporary placement for Z.P. with the father.

(139) There were less disruptive alternatives for Z.P. on May 6, 2004, other than a traumatic apprehension. One obvious option would have been placement with his father at the home of the paternal grandparents until the situation was further assessed.

[4] In this case, I am not satisfied that the informant has provided the answers to the obvious question as to why either or both of the children might (or might not) be placed with their respective grandmothers until the situation was further assessed. This question arises having particular regard for the role the grandmothers have played in care and support for the children. Consequently, I am not prepared to grant the Warrants sought at this time.

Released: May 16, 2017

Signed: Justice of the Peace Dudar