WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87(8) Prohibition re 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.

87(9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: 2019-07-10

Court File No.: Sault Ste. Marie 41/19

Between:

CHILDREN'S AID SOCIETY OF ALGOMA, Applicant

— AND —

MV, Respondent

— AND —

ML, Respondent

— AND —

JOANNE WILSON, BAND REPRESENTATIVE, MICHIPICOTEN FIRST NATION, Respondent

— AND —

JENNIFER COOL, BAND REPRESENTATIVE, MOOSE CREE FIRST NATION, Respondent

Before: Justice R. Kwolek

Heard on: March 13, 2019 and March 22, 2019

Reasons for Judgment: Released orally on March 22, 2019, and further written reasons released on June 21, 2019 and on July 10, 2019

Counsel:

• A. Marrato — counsel for the applicant society
• S. McCooeye — counsel for the respondent MV
• ML — on his own behalf
• Joanne Wilson — Band Representative for the respondent Michipicoten First Nation

KWOLEK J.:

Summary

[1] I released an oral decision in this matter on March 22, 2019. These are further written reasons released relating to the oral decision.

[2] This is a second edited set of written reasons eliminating much of the history and as much identifying information as possible, focusing on the procedural issues raised in this case for possible further distribution, with some limited additional edits.

[3] The children in this case are ML born 2009, and Ma. born in 2013.

[4] The mother of the children is MV while the father is ML. There is currently a Children's Law Reform Act order in place, which on its face, gives joint custody to the parents, primary residence with the mother, with access every second weekend to the father, and two midweek access periods. The Court has been advised that the parties currently follow, in general, the access provisions but are flexible in arranging such access.

[5] The mother is currently involved in a relationship with SM. She was expecting his child in May 2019. SM is the father of a child who is not the subject of these proceedings.

[6] The Children's Aid Society has been involved with the family and SM for some time with respect to issues dealing with domestic violence and substance abuse.

[7] The mother is a member of Michipicoten First Nation and the children are eligible to be registered as band members. The father is a member of Moose Cree First Nation and both bands have been made parties to this proceeding. The Court therefore finds that the children are First Nation children pursuant to section 90(2) of the Child, Youth and Family Services Act, and the children's bands are Michipicoten First Nation and Moose Cree First Nation. It is unclear whether or not Justice Villeneuve made such a finding based on his endorsement of March 6, 2019. I formally made that finding in my endorsement dated March 13, 2019.

Court Appearance History

[8] This matter first came before the Court on March 6, 2019. The parents were both served on March 5, 2019.

[9] At that time a "direct application", together with a notice of motion were first returnable on that date. By direct application the Court refers to a court proceeding commenced by the Children's Aid Society without, under the wording of the current legislation, "bringing the children to a place of safety." Such an application appears to be referred to, or at least previously was referred to, prior to the change in legislation, in other jurisdictions as a "constructive apprehension", "technical apprehension" or a "deemed apprehension".

[10] Justice Villeneuve made a without prejudice order on March 6, 2019, with one condition which required that the mother not permit SM to be in her home at any time, or any place where the children are located and continued the Children's Law Reform Act order for access to the father ML. He also adjourned the matter to a "list day" before me. He time limited his order for a period of one week to March 13, 2019. On March 13, 2019 there was sufficient time on the list for me to hear brief submissions regarding the matter but insufficient time for me to properly review the material. A further interim order was made at that time restricting SM's access to the mother's children. The Court adjourned the matter for a more fulsome hearing on March 22, 2019.

[11] The motion was ultimately argued on March 22, 2019, 17 days after the mother and father had been served.

[12] Although the Court had rendered its oral decision on March 22, 2019, I indicated to counsel that I reserved the right to provide further written reasons and proposed to address the issue of the procedural objections as to the hearing of the motion as raised by counsel for the mother, and would provide an opportunity for counsel for both the Children's Aid Society and the mother to file written submissions on that issue.

[13] The current usual procedure in our jurisdiction is to schedule such application and motion during a regular weekly "list day" and to alert the judiciary that such an application is on the list to be heard so that the judge would be able to read the file in advance of the hearing.

Summary of Historical Background

SM – Issues

[14] The main issues in this case relates to the relationship between SM and the mother of the children in this case, MV, and the domestic violence in that relationship.

[15] On October 10, 2015, SM was charged with assaulting his spouse at the time, RK, and was also charged with forcible confinement and mischief.

[16] On October 2015, SM was found in RK's apartment hiding under the crib and was arrested.

[17] SM was in custody from October 2016 until January 16, 2017.

[18] SM and RK separated in March 2017.

[19] In June 2017, police received a report of a verbal dispute between RK and SM. The next day RK showed the child protection worker a note left glued to her door which stated: "fucking whore, liar, loser mother." RK indicated that SM did attend at her home on June 2017 in the afternoon and she called the police for assistance but SM left her apartment before the police arrived.

[20] Later in June 2017, the child protection worker met with RK who advised that SM was just at her home, yelling at her and demanding to see the child. She also showed the worker some texts from SM, calling her a "loser, whore and a fat pig." There were other incidents up to and including November 2017, including SM attending at RK's home yelling at her and demanding to see their child.

[21] By November 2017, it appeared that SM and the mother were now in a relationship.

[22] As a result of the recent domestic violence history of SM, the child protection worker spoke with the mother and the mother did in fact sign a six month Family Service Agreement that SM not reside in the home of the mother and was not to be in a caregiving role for the children.

[23] On December 2017, SM confirmed the incident of being shot by a pellet gun and admitted to the child protection worker that he does "a couple of lines of cocaine here and there" and confirmed he smokes marijuana daily. He also confirmed on that day that his relationship with RK was toxic.

[24] On December 2017, the mother requested some access by SM to her children over Christmas. The Children's Aid Society did approve that the mother and SM could be together with the children at the maternal grandmother's home during Christmas and public events such as skating and swimming.

[25] The child protection worker reports that "SM remained in jail from January 2018 until September 2018".

[26] On September 4, 2018, probation contacted the Children's Aid Society to report SM was released from jail and was now living with the mother.

[27] On September 2018, the mother and SM met with the child protection worker Jessica Bernhardt to review a proposed six month Family Service Agreement. The mother indicated concerns about the condition that SM could not be in a caregiving role to the children. A term of the agreement was amended at the request of the mother that SM could not be in a caregiving role to the children "until approved of by the Society."

[28] By November 2018, SM had been approved to care for the children for brief periods of time in the morning to get them off to school when the mother would go to work.

Events Leading to Court Application

[29] The child protection worker met privately with the child M at her school in February 2019. M indicated that within the last two weeks, as they were driving to the maternal grandmother's for supper, the mother and SM got into an argument in the car and that he called the mother a "bitch and an asshole." The argument stopped at the maternal grandparent's home but recommenced when they were driving back home. When they were driving home the mother wanted to take SM to his mother's home but he did not want to do so and grabbed the steering wheel almost causing them to go into the snowbank. The child M yelled at the mother to stop the car, which she did, and M got out of the vehicle and went to stay at her friend's place for the night. The child further indicated when they go to the maternal grandparents' home the grandfather and SM drink alcohol; SM does not drink alcohol at home; the child has not seen SM hit the mother but she has seen the mother hit SM "on the forehead with her fingers." The child M also indicated that she wishes to live with her father.

[30] In February 2019, the mother attended at the afterschool program to speak with M. The child protection worker also attended at that time. The mother asked the child if she wanted to live with her father and she confirmed that she did and also confirmed that it was because of SM. She also confirmed in response to a question of the child protection worker that she would want to live with the mother if SM moved out.

[31] The next day in February 2019, the child protection worker met with the mother and SM. They did not agree with all of the comments made by the child but did agree to the following:

1. They were arguing on the way home from the maternal grandmother's home as SM had been consuming alcohol but had not been arguing on the way to the grandparents' home.

2. That SM reached over to try to grab the keys from the mother's pocket while she was driving and not the steering wheel.

3. That M ran out of the car and went to a friend's house.

4. That SM went to his mother's house for the night.

5. That the mother did call the police to get SM to leave the house earlier in January.

6. The mother did admit to throwing the remote in anger during a fight with SM.

7. SM did admit to drinking more often.

8. That it appears SM still has 2016 charges relating to thefts that still needed to be dealt with. In their screening position the Crown was seeking 75 days incarceration.

[32] The child protection worker took the view that the children were not safe in the home when the mother and SM are together. Both the mother and SM indicated that SM is moving out of the home and will be gone before the children come back from visiting their father. The plan developed with the worker was that SM would move out of the mother's home and both would work with collateral services.

[33] SM asked to speak with the child protection worker in private and expressed that the mother has a lot of anger as well.

[34] Shortly after the meeting of February 2019, the mother began to question whether or not SM should be excluded from the home and whether or not she should be taking counselling. The worker advised that the matter may be brought back into court for the court to decide.

[35] The child protection worker also discussed issues with the probation officer in February 2019. The probation officer presented a positive picture of her dealings with SM.

[36] The mother texted the child protection worker later in February 2019, that the child M wants SM to come home.

[37] The child Ma advised that SM was at the house and slept there for three nights – the child M was at her father's residence for those days. The child Ma also stated that the mother and SM fought a little bit and SM yelled loudly at the mother.

[38] When speaking with the child M later in February 2019, the child told the child protection worker that she misses SM and would like to see him at her grandparent's house or in public but doesn't want SM to live at her mother's home at this time.

[39] The mother initially denied SM was staying at her house. The child protection worker advised the mother on February 28, 2019 that the mother was not following the safety plan and the Children's Aid Society would bring the matter into court seeking an order that SM not live in the mother's home and not be around the children. The Children's Aid Society prepared their material on March 5, 2019 for the court appearance on March 6, 2019. The mother and the father were served on March 5, 2019. Counsel objects to this short service and the process which brought this matter to court.

Additional Material Filed After the Initial Court Application

[40] The child protection worker met with the two children on March 7, 2019, and the child M indicated that SM slept at the mother's home on Monday and Tuesday of that week, and that SM was present when "they woke yesterday" – which would have been on March 6 prior to the making of the court order.

Positive Comments Regarding SM

[41] On November 2017, the child M indicated that SM is nice to them and babysits them after school when their mother is working.

[42] SM met with the child protection worker on November 2017 and appeared to cooperate with the child protection worker signing consents, reviewing his history with RK and expressing a willingness to attend programming.

[43] A safety plan was developed in November 2017, between the mother and SM that:

1. SM would work with the Society and follow their recommendations;

2. SM would work with collateral agencies;

3. SM was not to have access to the mother's children until progress had been made addressing his protection concerns.

[44] In December 2017, Algoma Public Health confirmed that SM had completed his CADAP assessment.

[45] The child M in January 2018 indicated that SM does a lot for them.

[46] In October 2018, the child M indicated that there had not been fighting or arguing and that the children like SM.

[47] In November 2018, SM provided the child protection worker with a certificate of completion for the group "Change is a Choice Substance Use Program."

[48] In November 2018, the Children's Aid Society agreed that the father could care for the children and be responsible to get them on the bus in the morning when the mother went in to work. This was discontinued shortly thereafter due to a change in SM's employment hours.

[49] In November 2018, the children indicated that they like SM living with them and they are happy that he can watch them in the morning.

[50] In February 2019, the probation officer reported the following to the child protection worker:

1. SM completed his parole and was compliant;

2. He is now on probation and no longer has to reside at the mother's home;

3. That SM has signed up for Triple P Parenting;

4. That SM is on a waiting list for a substance abuse course;

5. That SM has attended all of his appointments;

6. That the worker attended the mother's home twice and there were no concerns.

[51] The mother filed an additional exhibit, being a letter from Mark McCoy, the native institutional liaison officer at the ATRC dated March 2019. The letter is a positive one for SM and confirms that the liaison officer is still there as a support for SM and has never seen him under the influence of any intoxicants or had any negative meetings with SM.

ML – Issues

[52] There is very little in the material relating to protection concerns relating to the biological father ML. The child Ma reported to the child protection worker that the father, ML, had been in a fight with the mother in November 2017 about the maternal aunt and described how she had seen the father smoke marijuana from a bong.

[53] On November 22, 2017, the child protection worker met with the father who indicated that there was a physical altercation between himself and the mother but the children did not see any physical fighting between them. The mother alleged that the father had choked her and the father claimed the mother had scratched him. The father indicated at that time that he was aware that the mother was dating SM.

[54] Some recent disclosures have been made by the child M about the use of physical discipline by the father's current spouse.

MV – Issues

[55] Although the mother was encouraged to attend Women in Crisis counselling sessions for domestic violence, the mother was resistant and was not attending these sessions as required under the family service agreement. There was limited evidence of the mother consuming alcoholic beverages to the point of intoxication in the presence of the children.

[56] The mother has admitted to throwing a remote at SM during an argument but disputes throwing or breaking other objects during any arguments with SM. The children have reported arguments between the mother and SM and the child Ma has described some minimal physical contact directed by the mother to SM.

The Children Ma and M

[57] On February 2018, Thrive contacted the Children's Aid Society to advise that the child Ma was diagnosed with severe speech delay and apraxia and has been receiving twice a week therapy sessions.

[58] There is no evidence of any problems or issues relating to the child M.

The Mother's Position

[59] The mother was able to file and serve her answer and plan of care on March 11, 2019. She disputes some of the details of the allegations in the Children's Aid Society affidavit.

[60] She indicates that her plan involves participating in counselling at Algoma Family Services. She has the children enrolled in an afterschool programme and is employed as a personal support worker and is expecting SM's child in May.

[61] The children are involved in swimming, skating and soccer. The mother was also able to serve and file an affidavit on March 11, 2019. She lists as supports her family and community members.

[62] She confirms that SM smokes legal marijuana and claims that he is not in a care giving role when he is under the influence of marijuana.

[63] The mother denies hitting SM repeatedly on the forehead.

[64] She indicates that M has told her that she does not want to live full time with her father. She indicates that M is not fearful of SM and loves SM and he loves her.

[65] She claims that neither she nor SM yell at the children. She denies hitting the children and denies hitting SM. She denies that SM called her a "bitch or an asshole."

[66] She further indicates that SM did attend for an alcohol and drug assessment on March 2019 and speaks with an elder Mark McCoy. She indicates that SM is signed up for Triple P Parenting and she is attending counselling. She indicates that she has support from her family.

[67] The child M's views and observations have been the source of much comment from the child protection worker and from the mother. She is at an age where her views should begin to attract attention and it is important that her views be heard through counsel appointed on her behalf. In fact the legislation requires that I consider her wishes.

[68] Section 94 (11) reads as follows:

11. Before making an order under subsection (2), the court shall take into consideration the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained.

[69] After reviewing this issue with counsel for the parties who were present, the Court made an order appointing Office of the Children's Lawyer counsel for M. She is nine years old and will be ten later this year. She has expressed views as to her wishes and she is too young to attend at the hearing. Her voice is entitled to be heard. Her views appear to have fluctuated. Initially, she spoke highly of SM and after some form of altercation between SM and the mother she appeared not to wish to stay with the mother if SM was there. She now expresses that she misses SM and wants some contact with him but the information in the affidavits filed by the parties falls short of M suggesting that SM should be allowed to reside in the home when she is present.

Test

[70] The appropriate test in law when the court adjourns a matter is set out in section 94 of the Child, Youth and Family Services Act.

94(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

Criteria

(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm SM and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

Placement with Relative, etc.

(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

Terms and Conditions In Order

(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

[71] This court has to make some order. No party is suggesting, at this point that the children be removed from the care of the mother. In fact, the children are being jointly cared for by the mother and father and the parents have been flexible in their joint parenting arrangement.

[72] The issue before the Court is whether the children should remain in the care of the parents with no conditions, with some conditions, and if the imposition of conditions is appropriate, what should those conditions be.

[73] In this case, I do not believe that the conditions sought by the Children's Aid Society are being hotly disputed except for the conditions surrounding SM's contact with the children. The parties had in fact previously entered into a voluntary agreement incorporating some of the conditions being sought by the Children's Aid Society which were in place for six months and which have now expired.

[74] There is another custodial parent, the biological father of the children in this proceeding, who has some issues identified in the affidavit material. Overall, the evidence before me indicates that the father's residence appears to be a safe haven for the children.

[75] I am satisfied that the status quo should continue in the division of access between the father and the mother of these children with some reasonable and appropriate conditions.

[76] I am satisfied based on the evidence before me, on a balance of probabilities, that the mother and SM have engaged in arguments in the presence of the children where they have elevated their voices and were abusive or used derogatory terms towards each other. I am satisfied that an argument occurred between the mother and SM, in early February 2019, while the mother was driving a vehicle, and the children were present in the vehicle, and some sort of physical contact occurred that caused M to be upset and request that she leave the vehicle.

[77] I make these findings in spite of the mother's denials, but based on the comments of the children M and Ma to the child protection worker, the parties' admissions, and the fairly recent background affidavit material relating to SM and his previous spouse.

[78] The Children's Aid Society has been involved with this family unit, including SM, for a period of time since at least November 2017. SM was incarcerated from January 2018 to September 2018.

[79] Is the court concerned about SM? Yes, it is.

[80] Is the court concerned about the relationship between SM and the mother? Once again the answer is yes. There is no doubt that some protective conditions are required in this case.

[81] The concerns relate to a domestic violence history between SM's previous spouse and the evidence of some domestic violence, mainly verbal and episodic, with this spouse. There are some concerns with substance abuse by the parents and SM.

[82] The Court is concerned about the mother's minimization of the issues surrounding domestic violence and her lack of involvement in programming by her to assist her in dealing with relationship issues and domestic violence. She has had over a year to enroll in such programs and has not done so.

[83] To her credit the mother has done some positive things:

1. She has indicated that she is currently enrolled in counselling;

2. She has attended regularly with the child protection worker;

3. There do not appear to be complaints about the condition of the home or the residence where the mother and the children reside;

4. There do not appear to be complaints about the attendance of the children at school or their appearance at class;

5. The mother has contacted the police for the removal of SM when necessary;

6. There do not appear to be concerns about the parenting ability of the mother.

The Biological Father

[84] There is very little information before the Court relating to the father, ML. There is some evidence, minimal at best, of substance use or abuse, and some domestic violence or corporal punishment in his household. There are some minimal terms requested by the Children's Aid Society dealing with the father that the father appeared willing to comply with, and he took no issue with such conditions on an earlier attendance at court. The father did not attend at court on March 22, 2019.

SM

1. SM has met regularly with the Children's Aid Society worker even though there have been some disagreements with the child protection worker as to a proper course of action. Generally, the Children's Aid Society, the mother and SM have come to a consensus regarding a safety plan and a service agreement. However, it is clear that the implementation and compliance with the plan have not always been appropriate.

2. He has taken programming when he was in custody;

3. He has sought out some programming and supports;

4. He has attended for a CADAP assessment, it appears now on two occasions, at the request of the child protection worker.

5. The children have generally expressed positive comments about SM except for a recent period of time when M has complained about verbal comments made by SM towards the mother including abusive and loud language. There has been no allegation of physical violence of SM assaulting the mother. There has been the "incident" in early February 2019, in the vehicle involving an argument that causes the court concern. In addition, there have been some comments by the child M of physical contact by the mother directed towards SM.

6. The children have described positive things that SM has done for the family;

7. It appears that the family has a safety plan or outlet if they begin to argue, that SM leave the household and stay at his mother's residence.

8. SM completed his parole and is on probation and regularly attends for appointments and has been appropriate with the probation officer.

9. SM has met with Mark McCoy while in custody and as a support while out of custody.

10. Voluntary agreements have been signed.

[85] What is the least disruptive order that the Court can make which is in the best interests of these children that ensures that they are in a safe environment?

[86] The mother was seven months pregnant when the matter was in court. SM, it is acknowledged, is a good support for her.

[87] I was satisfied that, given the passage of time, and the opportunity of the parties to express their positions and to provide responding material, and based on the material before me, that I was in a position to make a just and appropriate temporary order. Seventeen days had passed since the mother was served. SM was aware of the motion before the court and attended court for the argument of the motion. Responding material was filed.

[88] Pursuant to the provisions of section 94(2) of the Child, Youth and Family Services Act, since the matter was brought before the Court, some order had to be made.

[89] I was satisfied that I could craft appropriate conditions under a temporary order for supervision that could manage risk of physical harm to the children. I was satisfied that I could impose appropriate conditions that would allow some ongoing contact of the children with SM and that would not compromise their safety based on the totality of the evidence.

[90] Therefore, with respect to the motion at Tab 2 and the relief sought therein, the Court will make an order under clause 1. Clause 2 – with respect to conditions dealing with the mother will include the following conditions: a, b, c, d, e, f, g, h, i, j, k, l, n.

[91] In addition the mother shall be subject to the following conditions:

m) The mother shall not discourage the children from discussing openly and truthfully their views and observations with the child protection worker or with their own counsel.

[92] I will also incorporate clause (i) of the previous voluntary family service agreement signed by the mother into the order which reads as follows:

o) Should SM be intoxicated or engage the mother in any form of domestic violence (verbal, emotional, or physical) the mother will have SM leave the home or any other location where such domestic violence is occurring immediately. If SM refuses to leave the home, the mother will contact the police for assistance, and she shall immediately leave the home or other location where such domestic violence is occurring.

[93] In addition, given the comments of the child M, I shall add the following to clause (n) "Any parenting time that the mother is to have with the child M shall be in accordance with M's wishes."

[94] Although it is unusual to have a child this young have such a say, this child appears mature beyond her years and has apparently expressed her views relating to time that she spends with the mother and her contact with SM. She has already "self-protected" and removed herself from an abusive situation. She seems sensitive to those issues and should not be forced into an access situation that she does not wish to be in. She has an option to stay with her biological father if the mother insists on having SM present and the child does not wish to be in the presence of SM.

[95] I have considered her wishes as expressed to the court through the various affidavits including the affidavit from the mother that says the child does not wish to live with the father full time. M is certainly leery of the presence of SM in the household on a full time basis at this time and appears at best ambivalent as to whether she wishes him to be in the home when she is with her mother.

[96] I am mindful of the fact that the biological father, ML, has these children for a significant period of time when the mother is free to pursue her relationship with SM in the absence of the children. The mother appears to rely on SM as well as other supports and is due to have his child in May. I am not satisfied that I should order no contact, supervised contact or make an order that SM not reside in the home.

[97] The parties should be aware that if anything should change, including any change with their level of cooperation with the Children's Aid Society, or lack of compliance with the terms of this order, or should any further incidents occur placing the children at risk, the Children's Aid Society may be required to take more intrusive action. Such more intrusive action may involve bringing the children to a place of safety or a motion being brought before the Court for a restriction of the mother's and SM's contact with the children through placement of the children with the father with restricted access to the mother. The parties must focus on what is best for the children and do what is necessary to address their issues.

[98] With respect to clause 3 – conditions relating to the biological father I accept that clauses a-h as set out in the notice of motion are appropriate with the addition of the clause:

i) The father shall not engage in any corporal punishment of the children, nor shall the father allow anyone acting as a parent to these children to engage in any corporal punishment of the children.

Procedural Objections

[99] Counsel for the mother raised preliminary objections regarding the lack of notice in these proceedings and specifically the lack of notice in the bringing of the motion that was before the Court and the lack of demonstrated urgency in having the motion heard, in the circumstances of this particular case.

[100] Ultimately the motion was not heard until March 22, 2019 although restrictive temporary orders were made on both March 6, 2019 and March 13, 2019.

[101] Counsel or agent for the mother on March 13, 2019, objected to the continuation of the order, alleging short service, inadequate time to respond to the most recent affidavit material filed by the Children's Aid Society, and suggested that the Children's Aid Society had not demonstrated such urgency that required immediate court intervention and that any conditions should be vacated pending a hearing of the motion in the usual course in a non-apprehension matter. This court currently sets aside time every Tuesday afternoon for the hearing of up to two temporary care and custody hearings. Otherwise, non-urgent motions are often set several months in the future to be heard. Unfortunately, counsel are often not available on Tuesdays to argue any temporary care and custody motions creating a further delay in having such motions heard.

[102] I was not in a position to adequately review the material prior to March 13, 2019, but was satisfied that I should make a further order restricting SM's contact with the children and adjourned the application and motion to March 22, 2019 to allow counsel for the mother to file any responding material, to allow me sufficient time to review the material, and to provide more time for argument on the motion. The motion was ultimately argued fully on March 22, 2019, 17 days after the mother and father had been served and after an answer and responding material had been filed on behalf of the mother, but not the father, who had not yet retained counsel. SM was not served with the material but did attend when the motion was argued but not with counsel. The band representative for Michipicoten First Nation supported the position taken by the Children's Aid Society.

[103] Although the Court had rendered its oral decision on March 22, 2019, I indicated to counsel that I reserved the right to provide further written reasons and proposed to address the issue of the procedural objections as to the hearing of the motion as raised by counsel for the mother. I also advised that I would provide an opportunity for counsel for both the Children's Aid Society and the mother to file written submissions on the issue.

Submissions of Counsel for the Mother

[104] Counsel indicated that his client, the mother, was served on March 5, 2019, and the motion and the application were both returnable on March 6, 2019. He indicated that, as a result, the mother had no reasonable opportunity to respond.

[105] Counsel submitted that the primary objective of the rules is to enable the Court to deal with matters justly as set out in Rule 2(2) and cited rule 2(3) of the Family law Rules which indicated that dealing with cases justly requires:

a) The procedure to be fair to all parties;

b) Save expense and time.

c) Deal with cases appropriately in accordance with their importance and complexity.

d) Give appropriate court resources to the case while taking into account the need to give resources to other cases.

[106] In addition, the main complaint was the lack of proper notice. Proper notice, under Family Rule 14(11)(a), requires six days' notice before a motion is to be heard.

[107] Counsel for the mother also points to rule 14(3) which requires any party affected by the motion, other than the child, to be served with the motion which in this case would have been SM. SM was not served with the motion.

[108] Counsel for the mother argues that the Children's Aid Society request for abridging the time for the hearing of the motion, is not sufficient, in and of itself, to justify the motion being heard. Counsel argues that by permitting the Society to proceed with a direct application, "by what amounts to an emergency motion" is in contravention of numerous family law rules and the motion should have been adjourned to be heard in the usual course to allow all parties to file their answers within the 30 day period.

Position of CAS Counsel

[109] Counsel for the Children's Aid Society argued that a six day notice period was not required for the motion as it "is and was the Society's position that a delay to March 13, 2019 would place the children at risk." The Children's Aid Society further argued if the notice period was not shortened then the Children's Aid Society would either have to remove the child from the care of the parent and bring the child to a place of safety or bring a motion without notice under Rule 14(12). The Children's Aid Society therefore submits that a motion on notice with the request to abridge the time for service is the "more just approach" and in the best interests of the children.

Child Protection vs. Other Family proceedings

[110] Child protection proceedings are different from other family proceedings. There are specific provisions in the rules that treat child protection proceedings differently from other family proceedings. Motions in child protection proceedings need not be conferenced before they are heard. (See rule 14(6)(e.1))

[111] Confirmations as to motions are to be filed and served on every other party except in the case of child protection proceedings (see rule 14(11) (d)).

[112] The rules dealing with motions made without notice are set out in Family Law Rules, 14(12), 14(13), 14(14) and 14(15) which read as follows:

MOTION WITHOUT NOTICE

(12) A motion may be made without notice if,

(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;

(b) there is an immediate danger of a child's removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;

(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or

(d) service of a notice of motion would probably have serious consequences. O. Reg. 114/99, r. 14 (12).

FILING FOR MOTION WITHOUT NOTICE

(13) The documents for use on a motion without notice shall be filed on or before the motion date, unless the court orders otherwise. O. Reg. 114/99, r. 14 (13).

ORDER MADE ON MOTION WITHOUT NOTICE

(14) An order made on motion without notice (Form 14D) shall require the matter to come back to the court and, if possible, to the same judge, within 14 days or on a date chosen by the court. O. Reg. 114/99, r. 14 (14).

SERVICE OF ORDER MADE WITHOUT NOTICE

(15) An order made on motion without notice shall be served immediately on all parties affected, together with all documents used on the motion, unless the court orders otherwise. O. Reg. 114/99, r. 14 (15).

[113] There is no express provision in the Family Law Rules that directs that the notice provisions for the bringing of motions do not apply to child protection proceedings.

[114] There is no specific exception in child protection proceedings, per se, amending the time for service in bringing a notice of motion.

[115] Rule 3(5), does allow the Court to lengthen or shorten any times set out in these rules. The Court in this case was asked to shorten the time period for giving notice in these proceedings to one day.

[116] However, the Court may only lengthen the time set out in sub rule 33(1) for timelines in the child protection case if the best interests of the child require it.

[117] Family Law Rule 33 states that a first hearing must be held within "five days" if the child has been brought to a place of safety." A temporary care and custody hearing must be held within 35 days; a settlement conference within 80 days; and a hearing within 120 days. Unfortunately, in this jurisdiction and in many others across the province, those timelines are honored more in the breach rather than in their compliance when hearings are contested.

[118] The provisions of the Child, Youth and Family Services Act, including section 88, provide that as soon as practicable, or in any event, within five days after a child is brought to a place of safety, the matter shall be brought before the Court for a hearing.

[119] The triggering event in both the Child, Youth and Family Services Act and the Family Law Rules for requiring the first hearing within five days is the bringing of the child to a place of safety.

[120] Although the provisions of the Family Law Rules do not state that such a motion is exempt from the provisions of the Family law Rules, by necessary implication, if the rules now require a minimum of six days' notice for the hearing, such a rule cannot apply if the proceeding, after the child is brought to a place of safety, must be before the Court within five days. From a practical point of view if the children are brought to a place of safety the parents are often not served at all or served on the date of the Court proceedings or one or two days prior to the hearing date, depending on how quickly the documentation can be prepared. The rationale of imposing such a short period of time is to ensure that:

a) the state does not withhold a child from parents and other caregivers for a protracted time period and proceeds as quickly as possible in court;

b) provides an opportunity for judicial oversight of the process to ensure that children are not being kept in care for a longer period of time than is absolutely necessary, if they can be returned safely to a parent or other family or community member.

[121] However, there are disadvantages from a procedural point of view for parents to have such a short time period to have the matter brought before the Court. Often the only material before the Court is material filed on behalf of the Children's Aid Society.

[122] The urgency, from the parents' point of view is premised on the actions taken by the state and the state's interference with the family unit and in recognition of the parents' right to seek return of the children as soon as possible, or have a court determine whether conditions sought by the Society should be imposed.

[123] The urgency from the Children's Aid Society point of view is based on the assertion that there is an immediate danger to the health or safety of the child.

[124] On reviewing the Court file, the judge must decide, usually based only on the material filed by the Society, whether an order should be made as requested by the Society, or whether some other order should be made in accordance with the legislation. Sometimes counsel for the parents is able to place some evidence before the Court, even at such first court appearance.

[125] Due to section 94(2) of the Child, Youth and Family Services Act, the Court must make some order whether the child has been brought to a place of safety or not. The wording of the current section is similar to the wording of the previous section 51 that was in force under the Child and Family Services Act.

[126] Where the children are not brought to a place of safety by the Society, but the Children's Aid Society seeks an alternative order, bringing the matter to the Court on short notice, or no notice, to some if not all of the parties, the issue of urgency must be based on the immediate danger to the health or safety of the child, or some other basis that may justify the Court using its discretion under Rule 3(5) under the Family law Rules, to shorten the period of service.

[127] In this case, the parents were advised on or about February 15, 2019, that the Children's Aid Society was considering more intrusive intervention and would be bringing the matter before the Court. When the child protection worker discovered on February 28, 2019 that the mother was not complying with the conditions relating to SM, the mother was advised that a court application would be commenced. The parties were not served with the application and accompanying motion until March 5, 2019, with a return date of March 6, 2019.

[128] The basis for urgency in this case, as argued by the Children's Aid Society was based on the following:

1. SM has a previous history of domestic violence with a prior spouse;

2. SM had been recently incarcerated for various offences including an alleged assault and had outstanding criminal charges;

3. The children reported domestic arguments and strife between the mother and her current spouse;

4. An incident occurred in a vehicle involving an argument between the mother and her new spouse causing such concern to the older child M that she requested that the vehicle be stopped and exited the vehicle to stay at a friend's house;

5. The child M at the time of that incident reported that she wanted no contact with SM;

6. Although the parties had entered into an agreement with the Children's Aid Society preventing SM from staying over at the home of the mother when the children were present, the mother and SM had breached that condition.

[129] Justice Baker in Children's Aid Society of Brant v. L.DV., 2018 ONCJ 669, commented that where children were removed from parents to a place of safety, such as grandparents, without a valid consent, then there would have been a placement or removal of children by the Children's Aid Society to a place of safety that would trigger the provisions of section 88 and related sections of the CFSA requiring that the matter be brought before the Court within five days. (See also section 74(4) of the Child, Youth and Family Services Act regarding the definition of a "place of safety".)

[130] In addition, Justice L.P. Thibodeau opined in a 2006 unreported decision of the Ontario Court of Justice on April 26, 2006 that: "an apprehension consisted of an action which is incompatible with the wishes of the custodial person." In that case, the judge found that the continued residence of these children with the grandmother, contrary to the wishes of the legal custodian, was "an apprehension". Judges have, in some jurisdictions, therefore interpreted these types of applications by the Children's Aid Society as "deemed apprehensions", "technical apprehensions" or "constructive apprehensions". They are referred to as "direct applications" in our jurisdiction.

[131] Given the change in the wording of the legislation, from "apprehension of children" to "a removal to a place of safety" under the current legislation, and based on the existing case law, is there still a requirement, if there ever was such a requirement under the Child and Family Services Act, under the Child, Youth and Family Services Act that a court application has to be brought within five days of "an action mandated or taken by the Children's Aid Society incompatible with the wishes of the custodial person"?

[132] In this case, the primary condition that the Children's Aid Society felt was necessary for the mother and her new spouse, who were both co-operating and meeting regularly with the child protection worker, although not always complying with the directions received from the child protection worker, was a condition requiring the new spouse to remove himself from the household and to have no contact with the mother's children.

[133] The mother had signed a voluntary service agreement with the Children's Aid Society on September 26, 2018, which was to be reassessed after six months which contained the following condition: "The mother shall not allow SM to be in a caregiving role of the children or to be alone with the children until approved of by the society." The Children's Aid Society did in fact allow SM to be in a caregiving role by November 2018, to allow SM to care for the children for a short period of time when the mother left for work.

[134] As indicated earlier, there were concerns expressed by the child M of an argument that transpired between the mother and SM while they were driving home from the maternal grandparents' home and other incidents where the mother and SM were arguing.

[135] On February 15, 2019, the child protection worker indicated to the mother and SM that the children were not safe when the mother and SM were together. The mother at that time indicated that SM would be moving out of the home before the children returned from a visit with their father. A safety plan was agreed to verbally by the child protection worker, the mother and SM, that SM would move out of the house and both parties would work with collaterals to deal with their issues and SM would not have contact with the children until "M agrees to it and the Society supports it."

[136] By February 19, 2019, the mother had reconsidered her position and expressed dissatisfaction with the condition that required SM not to have any contact with the children.

[137] On February 27, 2019, the children M and Ma told the worker that SM had been at the mother's home with the child Ma there, although M had not been present at the time. The child protection worker told the parents on or about the 28th day of February, 2019 that she would be bringing the matter to court. The parents were served with the documentation on March 5, 2019. SM was not served with the motion but was aware of the Court proceedings and the relief that the Children's Aid Society was seeking.

[138] Ultimately, a number of temporary orders were made, and at the request of counsel or agent for the mother, additional time was granted to allow the mother to file responding material. Ultimately, the Court did grant the mother an opportunity for a short adjournment and to have a hearing relating to the imposition of a condition that she did oppose.

[139] The Court has inquired about the practice in other jurisdictions in dealing with direct applications and there do not appear to be consistent protocols in place in every jurisdiction in dealing with these types of applications. Circumstances may be much different in Toronto or some larger urban centres where hearings may be set as early as the next day, if the motion is not dealt with on the initial return date, or days later at the request of counsel.

[140] In many communities, including some northern or rural communities where court may be held only once a month or even less regularly, and where the retention of child protection counsel by the parents may be difficult, subsequent court hearing dates may not be available for all parties for several months. In some jurisdictions, this type of application is treated as an apprehension and the Children's Aid Society is advised to bring the matter before the Court within five days. This type of immediate judicial oversight does allow the Court to decide how the case is to further proceed in a just fashion. Some jurisdictions try to ensure that once a direct application is brought and the matter is initially disputed that such a disputed case is to be heard within approximately 30 days. Such a short period of time can only be set if counsel for the parties and the Court, can accommodate such an early date. Such a time frame is consistent with the timelines set out for a temporary care and custody hearing in rule 33.

[141] This type of "direct application", the Children's Aid Society argues, is preferable to apprehending children if an apprehension can be avoided. The Court acknowledges and recognizes that the apprehension of a child is a traumatic event for a child and is seen as a last resort, to protect a child from imminent harm.

[142] The paramount purpose of the legislation must be respected as is set out in paragraph 1(1) of the Child, Youth and Family Services Act, namely: "to promote the best interests, protection and well-being of children."

[143] The current legislation recognizes that co-operation between family and community members to ensure the best interests and safety of the child is preferred over intervention by the state. Removal of a child from parental care is a draconian remedy of last resort, but a remedy that is justified to safeguard and protect children. Sometimes the state has no choice but to remove a child from parents to ensure the child's safety.

[144] The test for removing and keeping a child out of parental care is an onerous one for the Society, namely that there must be reasonable grounds to believe that there is a risk that the child is likely to suffer harm and the child cannot be protected adequately by the imposition of conditions. (See 94(4) Child, Youth and Family Services Act).

[145] The Children's Aid Society, if it seeks an order under section 94(2)(b) of the Child, Youth and Family Services Act, must establish that the conditions being sought are reasonably necessary to adequately protect the child from harm and are deemed by the Court to be appropriate. This is a much less onerous test.

[146] Any process or procedure should deal with child protection matters in a timely fashion, in a process that is just and fair. The rights of the parties should be zealously protected especially when dealing with matters of child protection when the parents are often the most disadvantaged members of the community, and least able to protect themselves from government intervention.

[147] The Judge provides an important gatekeeper function in ensuring that the procedure is fair and just to the parties while ensuring the safety of the children.

[148] The analysis that the Court must undertake in a direct application should be as follows:

1. The Court must decide whether urgency has been demonstrated relating to an immediate danger to the health or safety of the child and whether the delay would probably have serious consequences.

2. If the Court finds that there is immediate danger to the health or safety of the child or children, then the motion has been properly brought even with short or no notice. (See the provisions of the Family Law Rules dealing with motions without notice - Rule 14).

3. Even if the Court finds that there is no immediate danger to the health or safety of the children as set out in the rules regarding motions brought without notice, the Court may still decide that it will grant the Children's Aid Society short service of the notice of motion and application and hear the motion pursuant to rule 3(5) of the Family law Rules.

4. Even if the Court finds that there is no basis for granting short service or no service of the notice of motion, the Court is still required to make some order pursuant to section 94(2) of the Child, Youth and Family Services Act. That order may be an order that simply declines to impose any conditions pursuant to 94(2)(a) or make an order imposing some conditions under 94(2)(b) of the Child, Youth and Family Services Act.

5. If the judge has had insufficient time to properly review the material, the judge may adjourn the motion for a short period of time, to give the judge an opportunity to review the material, in all likelihood making no restrictive order.

6. Once an order is made, a date should be set for a hearing of the motion as soon as is practicable, recognizing the time lines under the Child, Youth and Family Services Act, and in accordance with the local practice in the jurisdiction, and in a manner that is just and fair to all parties.

[149] Ultimately, the judge is the gatekeeper who should ensure and promote the best interests, protection and well-being of children while ensuring that any hearing will be conducted in a manner that is fair and just for all parties.

Released: July 10, 2019

Signed: Justice R. Kwolek