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: 2020-01-16

Court File No.: Toronto C20795/18

Parties

Between:

Catholic Children's Aid Society of Toronto Applicant

-AND-

M.G. (Mother) Respondent

-AND-

M.S. (Grandmother and caregiver) Respondent

-AND-

D.S. (Step-grandfather and caregiver) Respondent

Hearing Details

Before: Justice Robert J. Spence

Heard on: January 15, 2020

Order made on: January 15, 2020

Reasons released on: January 16, 2020

Counsel and Representation

Ms. Fatima Husain — counsel for the applicant society

Respondent Mother — not present; current whereabouts unknown

Respondent Grandparents — in person

Mr. Nav Rai — Agent for the Office of the Children's Lawyer, legal representative of the child Ab..

Endorsement of Justice Robert J. Spence

Introduction

[1] On January 15, 2020 I made a temporary without prejudice order placing the child Ab.., age 14 years, in the care of the Catholic Children's Aid Society of Toronto (society), with access in the discretion of the society.

[2] The matter had previously been set to come into court, as a status review application, on January 16, 2020 following a six-month supervision order which I made on August 8, 2019, placing Ab.. in the care and custody of her grandparents, subject to certain terms and conditions.

[3] However, on January 10, 2020, the society removed Ab.. from the care of the respondent grandparents and took her to a place of safety. This followed a disclosure which Ab.. made on January 10th to a society worker that she had been sexually abused by her grandfather.

[4] Ab.. disclosed to the society worker that this sexual abuse had been ongoing for a considerable time but that the most recent event occurred on the prior day, January 9, 2020.

[5] As a result of this disclosure, the society took Ab.. to the Child and Youth Advocacy Centre where she was interviewed by a police detective. Following that police interview the society decided to take Ab.. to a place of safety.

[6] The society worker then contacted the grandparents on January 10th and advised them that Ab.. had disclosed "child protection concerns" which resulted in a joint investigation by the police and the society.

[7] On January 14, 2020, a police detective advised the society that he would be interviewing the grandparents by January 17, 2020.

[8] Section 88 of the Child and Youth Family Services Act (Act) provides in part [my emphasis]:

88. Time in place of safety limited

As soon as practicable, but in any event within five days after a child is brought to a place of safety under section 81, subclause 83(1)(a)(ii) or subsection 136(5),

(a) the matter shall be brought before a court for a hearing under subsection 90(1) (child protection hearing);

[9] Because of this five-day requirement it was incumbent upon the society to bring this matter before the court no later than January 15, 2020, which the society did, by way of an early amended status review application.

The Grandparents are Parties

[10] Rule 7 of the Family Law Rules provide for how party status is determined in any proceeding, including child protection proceedings.

[11] In this early amended status review application, the society has properly named the grandparents as respondents, both in the application itself, as well as in the concurrently-brought notice of motion in which it sought to place Ab.. in the temporary care of the society.

[12] It is trite to say that as parties to this early status review application and notice of motion, the grandparents are entitled to participate fully. That right of participation includes the right to make representations to the court, as well as to file appropriate material in response to the society's application and notice of motion.

[13] It is self-evident that a respondent in an application and a notice of motion cannot possibly file meaningful responding material or make meaningful submissions unless (s)he knows the contents of the applicant's material.

No Service on the Grandparents

[14] Society counsel, the grandparents and counsel for the Office of the Children's Lawyer (OCL) attended court on January 15, 2020, the fifth day following the society's removal of the child from the grandparents' custody.

[15] Counsel for the society advised the court that it had not served the grandparents with the early status review application and the motion for temporary care and custody to the society.

[16] Counsel asked the court for permission to proceed with its motion for a temporary care and custody order in favour of the society without serving the grandparents.

[17] I asked the grandparents if they knew what was going on and why the society had brought the matter into court. Not surprisingly, in view of what the society had told them by telephone on January 10th, the grandparents were entirely in the dark.

[18] Society counsel proceeded to advise the court that the police had requested the society not serve the grandparents with the court documents until the police could conduct their interview of the grandparents.

[19] It was on this basis that society counsel argued for permission to refrain from serving the grandparents, and for the court to simply make a temporary order on the society's material alone without the grandparents' knowledge as to why the matter was in court, and without knowing the evidentiary basis for the society's request.

[20] Society counsel argued that the court should accede to this request because there were "public policy" reasons for the grandparents to be kept uninformed until the police investigation could be concluded.

[21] Society counsel also stated that there was "authority" for such a position.

[22] I expressed concern about this and I asked society counsel whether perhaps there was an equal or even greater public policy reason to serve the grandparents, given that a state agency (the society) had come into the grandparents' home and removed a child who was in their care; and weren't the grandparents entitled to know why this had happened?

[23] I held the matter down for the society and counsel for the OCL to consider their respective positions and return after lunch.

[24] Upon everyone's return to court, the society advised the court that it had now faxed the court documents to the grandparents' previous lawyer who had apparently told society counsel that (s)he would be representing the grandparents on a go-forward basis.

[25] Both the society as well as the OCL argued that this constituted a sufficient balancing between the need to protect the integrity of the police investigation and, at the same time, to inform the grandparents of what was happening in court.

[26] Once again, I inquired of the grandparents if they now knew and understood the reason they were in court, and the basis for the society making its request in its notice of motion. They did not. They still had not seen any of the society's documents. Despite the society having faxed documents to their (previous) counsel, the grandparents remained as much in the dark as they had when they first entered court earlier in the morning.

Court Orders the Society to Forthwith Serve the Grandparents

[27] Following submissions from the society and the OCL I ordered the society to step outside the courtroom, to copy all the court documents and immediately serve those documents on the grandparents.

[28] I told the grandparents that once they had read those documents I would be prepared to discuss the contents and answer their questions upon their return to the courtroom.

[29] The society complied and everyone returned to court in due course.

[30] As the grandparents were at court without legal representation, I reviewed with them what the society was seeking and the evidentiary basis for that request. I gave the grandparents the opportunity to ask whatever questions they wanted and to make any other submissions or comments to the court.

[31] As I noted at the outset of this endorsement, I then made the temporary without prejudice order which the society had requested in its notice of motion.

Rationale for the Court's Decision

[32] Removing a child from the care of a parent or legal guardian is serious business. It is pretty much the most intrusive action which a society can take under the Act.

[33] This is the main reason why following such a removal the matter must be brought before a court within five days to review the removal.

[34] To properly enable a court to review the appropriateness of a removal, as well as to consider whether to make any further orders, the court requires the attendance of the parties to the proceeding; in that way, the fullest possible submissions can be made to assist the court in its determination.

[35] That cannot be done if the society simply refuses to serve relevant court documents on parties who are entitled to notice and entitled to participate in the proceeding.

[36] As I noted earlier, respondents in a child protection proceeding cannot participate in any meaningful way unless they are in receipt of the society's material.

[37] The society could have handled this differently. When the police advised the society not to serve the grandparents, the society's response ought to have been in words to the following effect:

The society has an obligation under the Act to bring this matter before the court within five days. The society also has a legal obligation to serve the parties with all the relevant court documents. While we have no desire to interfere with your investigation, you should bear this time-frame in mind while you are conducting your investigation. If you need to interview the grandparents, and if you are concerned about a possible tainting of your investigation, you should interview the grandparents prior to the expiry of the five-day period, because the court will expect the grandparents to be properly served with the relevant documents.

[38] In the court's view, this was mishandled by both the police as well as by the society. In my respectful opinion, the police had no right to tell the society to refrain from doing what it had a legal obligation to do.

[39] And the society had an obligation to immediately respond to the police in the manner I have suggested above.

[40] In the case of Children's Aid Society of Algoma v. D.P., 2006 ONCJ 330, the court emphasized that child protection proceedings are on an equal public importance footing with criminal proceedings.

[41] It is the court's expectation that should a similar issue arise in the future, the society – or any society – will be left in no doubt as to how to properly conduct itself.

[42] The society shall forthwith provide the relevant police investigation unit with a copy of this decision.

[43] The society shall also serve the respondents' former counsel with this decision, together with the court's direction that former counsel shall, in turn, provide the respondents with a copy of the decision.

Released: January 16, 2020

Signed: Justice Robert J. Spence

Footnotes

[1] As stated in the society's court documents

[2] Although counsel did not express what the public policy reason was, she implied that service on the grandparents might taint the police investigation and that this investigation should take priority over the grandparents' right to be served with court documents.

[3] However, society counsel did not provide the court with any authority.

[4] That counsel was on the record for the prior proceeding which led to the making of the six-month supervision order. However, as this early amended status review application is a new proceeding, that counsel is not presumed to be automatically on the record until such time as counsel formally appears, or files material on behalf of the respondents.

[5] In some cases, for reasons beyond the society's control, a parent or caregiver cannot be located. However, this will be the rare and exceptional case.

[6] That case was about disclosure of police and correctional service records in a child protection case, over the objection of the crown when there was an ongoing police investigation.