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.

(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.

(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.

ONTARIO COURT OF JUSTICE

DATE: March 5, 2021 COURT FILE No.: Sault Ste. Marie File No. 231/14 - 001

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA, Applicant,

— AND —

F.M. M.K. C.K. (Added Party) Respondents.

Before Justice John Kukurin Heard on March 2, 2021 Evidentiary Ruling released on March 5, 2021

Counsel: Jennifer Mealey....................................................................... counsel for the applicant society Shad McCooeye......................................................... counsel for the respondent mother, F.M. Jasmine Gassi Harnden.................. counsel for the respondent paternal grandmother, C.K. M.K.......................................................................................... not present, although duly served Lindsay Marshall.............. Office of the Children’s Lawyer legal representative for the child

KUKURIN J.:

[1] This is a Ruling over an evidentiary issue that arose during the course of this status review trial.

[2] The issue is exemplified by the following questions:

What may the status review trial court do, if anything, with the Application and the Affidavits filed in the prior child protection case, on the basis of the facts of which, the child protection proceeding judge made a finding that the child was in need of protection?

Are the affidavits admissible in evidence in the status review proceeding, including all exhibits attached to such affidavits, as documentary evidence without the party tendering such documents calling the deponents to be cross examined.

Does the fact that the finding and disposition in the child protection case was made on consent of all parties in that case affect the answers, and if so, how?

[3] Some other pertinent facts that apply in this case are:

(a) The prior child protection proceeding was contested, took over three years, spanning from 8 Dec 2014 to 28 Feb 2018 to resolve.

(b) The mother was represented by OCL counsel at first, as she was a minor, was self represented for a time, and later by counsel of her choice.

(c) The mother signed a consent to finding, disposition and access which were incorporated into a final child protection order dated Feb 28, 2018. The consent was witnessed by her then counsel. Her then counsel is her counsel in the present status review proceeding.

(d) The society had filed a number of affidavits of its society workers in the child protection proceeding. Four of these were sworn December 8, 2014, April 28, 2016, October 6, 2016 and December 9, 2017. The finding in need of protection recited in the final order states that the court made such findings

“ … based on the facts set out in the Protection Application dated December 8, 2014, the affidavit … sworn December 8, 2014, … sworn April 28, 2016, … sworn October 6, 2016 and… sworn December 9, 2017.” [Names of deponents omitted].

Several of these affidavits have exhibits appended to them.

(e) The final order dated Feb 28, 2018 gave no written Reasons for this order, nor are there any known oral Reasons. No one has produced any recording or transcript of the day such order was made. There is no indication of the specific findings of fact made by the trial judge other than his endorsement that the finding in need of protection was based on the facts in the application and in the four identified society affidavits.

(f) The trial Justice had released, about five months earlier, on October 2, 2017, written Reasons on two motions, one brought by the mother seeking to vary a temporary care and custody order that had placed the child with the paternal grandmother, and a second brought by the paternal grandmother seeking to confirm her temporary care and custody, and, should she lose it, that she be granted temporary specified access, and in addition, that she be granted party status in the child protection proceeding. These Reasons were quite comprehensive, totaled 153 paragraphs and 30 pages. These were given after three of the four affidavits set out in clause (d) above had been filed.

[4] The society has made copies of these four affidavits from the previous child protection proceeding, has bundled them up in a “Society Document Brief” with other documentary material, and seeks to have these four affidavits made an exhibit, or exhibits in the present status review proceeding. It has not called the deponents of those affidavits, nor does it intend to produce any of them for cross examination. The ostensible reason for making them exhibits is so that they will be admitted as “evidence” in the status review proceeding, and so the court can rely on the contents of them in whatever way it wants to.

[5] The mother opposes such affidavits being admitted into evidence in the status review proceeding. She argued that it was improper because:

(a) They are tendered as trial evidence in this status review proceeding in which “trial affidavits” only are permitted.

(b) These affidavits are full of hearsay, some of which may have been statutorily admitted and acted upon as “being credible and trustworthy” in the circumstances prevailing when they were filed (namely at the temporary care and custody stage), but are clearly not only inadmissible, but are not trial worthy in this status review proceeding. [^1]

(c) The deponents of these affidavits are not being produced for cross examination thereon and it would be unfair to permit them to be admitted.

(d) The judge presiding at the time that the child protection order was made gave no Reasons, either written or oral, as to what findings he made of the many factual events set out in those four affidavits, or what judicial weight he assigned to any of them.

Function of the Status Review Proceeding

[6] The status review proceeding is a creation of the Child, Youth and Family Services Act (the CYFSA). It is one of the means by which the court maintains oversight of the state’s intervention in the families of the nation that is otherwise justified by the need to protect children from neglect or abuse. The status review is intended to require a society to come back before the court once a protection order has been made, and to justify why another protection order is needed (or no longer needed), to protect the child. A status review may also be brought by others, but only a society is required to bring one. The requirement is to bring one before the existing protection order expires. Section 113(2) of the CYFSA requires the society to apply to the court for a review of a child’s status.

S.113 (2) The society having care, custody or supervision of a child,

(a) may apply to the court at any time for a review of the child’s status;

(b) shall apply to the court for a review of the child’s status before the order expires, unless the expiry is by reason of section 123; and

(c) shall apply to the court for a review of the child’s status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for society supervision.

[7] Section 114 CYFSA sets out what orders the court may make on a status review brought under s.113. These options are:

S. 114 Where an application for review of a child’s status is made under section 113, the court may, in the child’s best interests,

(a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 101; or

(d) make an order under section 102.

Section 101 orders are child protection orders. Section 102 orders are custody and access orders. The word “or” in this section clearly allows the court to choose only one of the four options listed.

[8] What exactly is the child’s status? In the context of this case, it is the status of a child who has been found to be in need of protection under the grounds in s.37(2)(b)(i) and s.37(2)(e) of the since repealed Child and Family Services Act (the CFSA) [now s.74(2)(b)(i) and s.74(2)(e) CYFSA] [^2]. In addition, it is the child with respect to whom a protection order has been made under s.57(1) CFSA [now s.101(1) CYFSA].

[9] The word “review” has no definition in the CYFSA. The trusty Thesaurus [^3] provides a number of synonyms: re-examination, reinquiry, recheck, reappraisal, revaluation, rethinking, revision, re beholding, a second or further look. While all are slightly different in meaning, I prefer a “further look”.

[10] In the Catholic Children's Aid Society of Metropolitan Toronto v. C.M. [^4] decision of the Supreme Court of Canada in 1994, Madame Justice L’Heureux-Dube stated [at paragraph 35]

“It is clear that it is not the function of the status review hearing to retry the original need for protection order. That order is set in time and it must be assumed that it has been properly made at that time. In fact, it has been executed and the child has been taken into protection by the respondent society. The question to be evaluated by courts on status review is whether there is a need for a continued order for protection”

[11] She went on to clarify how a determination of a continued need for a protection order ties into the consideration of the best interests of the child [at paragraph 37]:

“ The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time.”

[12] Of significance is the last sentence of paragraph [37] of the CM decision. The status review must determine the need for any continued need of protection by looking at “ the existence or absence of the circumstances that triggered the first order for protection ”.

[13] How does the status review court do this if not by having regard to the circumstances that triggered the existing child protection order that created the status that the status review court is mandated to review? The status review court must look to the circumstances in the prior proceeding. These circumstances must surely be set out in the evidence in the prior proceeding. In fact, the wording of the prior order in this case provides information where this evidence can be found. Regrettably, the location is all that the prior proceeding provided to the present proceeding.

[14] Admittedly, it would have been preferable if the judge who makes a protection order, knowing that a status review proceeding is an almost inevitable corollary, would provide Reasons, however succinct, in which his or her findings of fact are set out, and upon which the finding and protection order are based. This would leave little guess work to the status review judge (or, for that matter, to an appellate judge hearing an appeal). In absence of such Reasons, the status review court has to do the best it can with what it has.

[15] Firstly, I reject the submission that the status review court cannot look at the prior child protection proceeding evidence. In fact, in absence of specifically stated findings of fact from the prior court, it must look at the prior evidence.

[16] Secondly, where, as in the present case, the specific evidence on which the finding in need of protection was made is identified and agreed to by all parties, the court has even more justification in looking at such identified evidence, unspecific as it may be.

[17] Thirdly, the court can look at what grounds in need of protection were found to exist in the prior proceeding as this is likely to enable the status review court to select from the evidence identified, the factual allegations that are most likely to have led to the findings on those grounds.

[18] Fourthly, as has happened in this case, the trial judge who made the findings and the protection order in the prior case, also dealt with motions made by each of two competing respondents. The decisions on these motions were supported by a comprehensive and thorough decision in which was canvassed almost all of the evidence that the same judge acted upon at trial. Also these Reasons were made within five months of the finding and order. The status review court can and should look at those Reasons. Section 93(1)(b) CYFSA, in fact, authorizes a court to admit into evidence a “transcript, exhibit, finding or the reasons for a decision in an earlier civil or criminal proceeding” which it considers relevant.

S. 93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[19] Fifthly, the society is required by s.100 CYFSA to file a Plan of Care in a case where a protection order is made. In this Plan of Care must be set out a number of things including:

(a) a description of the services to be provided to remedy the condition or situation on the basis of which the child was found to be in need of protection;

(b) a statement of the criteria by which the society will determine when its care or supervision is no longer required;

(c) where the society proposes to remove or has removed the child from a person’s care,

(i) an explanation of why the child cannot be adequately protected while in the person’s care, and a description of any past efforts to do so,

[20] While a society’s plan of care does not necessarily mirror what the court may plan in its order of protection, the society’s plan should provide the “ condition or situation on the basis of which the child was found to be in need of protection ” and the “ criteria by which the society will determine when its care or supervision is no longer required ” and “ why the child cannot be adequately protected while in the person’s care ”. All of these are further statements that the status review court can use to make inferences of what the prior circumstances were that led to a finding in need of protection, and the protection order that was made.

Conclusion

[21] The status review court can look to the facts in the affidavits filed in the prior proceeding, particularly those specified by the court in the prior proceeding, and on the consent of all parties, to try to determine why the child was found to be in need of protection, and why the prior protection order was made. This is so that the status review court can determine, as Justice L’Heureux-Dube says in C.M., if there is a continuing need of protection. A “continuing” need necessarily implies that a need existed at a prior time. In absence of specific reasons setting out why a finding or an order was made, the status review court has both the ability and the authority, and I go so far as to say the ‘mandate’ to look anywhere in the court record of the prior proceeding to fulfil its duty in status review. It can do this without admitting any affidavit or any document into evidence in the status review proceeding with which it is dealing.

[22] These four affidavits are part of the court record of the child protection case. They do not have to be formally admitted as evidence in this status review proceeding. They may and should be able to be accessed by the status review court which has a mandate to determine what changes have occurred from the date of the prior order to the present time. In many ways, this can be analogized to a Motion to Change a child custody and/or access order under the Children’s Law Reform Act (the CLRA). A material change in circumstances that affects or is likely to affect the best interests of the child is a pre-requisite under s. 29 of the CLRA. In such variation cases, it is usually only the prior order that is produced in the Motion to Change. Where no reasons are given why that order was made, the Motion to Change court should be able to, and should go back to look at the factual circumstances that prevailed at the time the prior order was made to determine if a material change has occurred since then. In fact, the applicant in such Motion to Change has the onus to show such material change and often has to resort to filing dated affidavits filed in the prior proceeding to establish what the circumstances were then. [^5]

[23] While I sympathize with the mother, that she does not have the opportunity to cross examine the deponents of these four affidavits in the status review proceeding, I point out that she consented to these as containing the facts on which the finding in need of protection was made. Moreover, she had counsel at that time and he knew or should have known that a status review would almost inevitably follow. In addition, the mother had the right to cross examine the deponents in the previous proceeding. Finally, the mother had or could have had, affidavits of her own that responded to the facts in the society’s four affidavits tendered here. She could have insisted that the judicial finding of facts in the prior proceeding be based not only on facts in the society’s affidavits, but also on the fact in her affidavit that qualified the society’s facts. While a consent resolution to a case that took over three years to resolve may look inviting at the time, perhaps a more thorough and more detailed settlement would have served the mother better. She and the society could have compiled a Statement of Agreed Facts as the basis for the finding and the order. Or the mother could simply have requested that the judge, if he was not providing written Reasons for his decision, set out in a concise statement what findings of fact he was making. The mother is in some ways, but not by any means totally, the author of her own misfortune on this issue.

[24] I do not admit these four affidavits as exhibit evidence in this status review proceeding. To do so would establish a bad precedent and would, in many ways would be tantamount to re-litigating what has already been judicially decided. However, I clearly reserve the right to access any and all parts of the prior child protection file to do what is my function in this status review.

Released: March 5, 2021 Signed: “Justice John Kukurin”

[^1]: At the time that the finding in need of protection and the final order was made in the child protection proceeding, the Kawartha-Haliburton Children's Aid Society v. M.W. [2019] O.J. No. 2029, 2019 ONCA 316 case had not yet been released. It said, among other things, that evidence in CYFSA matters must be trial worthy. [^2]: Section 37(2)(e) CFSA was phrased differently than is the present s.74(2)(e) CYFSA S.37(2)(e) CFSA - the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment; S.74(2)(d) CYFSA - the child requires treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide the treatment or access to the treatment, or, where the child is incapable of consenting to the treatment under the Health Care Consent Act, 1996 and the parent is a substitute decision-maker for the child, the parent refuses or is unavailable or unable to consent to the treatment on the child’s behalf; [^3]: Roget’s Thesaurus, Fourth Edition, Harper & Row, Publishers 1977 [^4]: Catholic Children's Aid Society of Metropolitan Toronto v. C.M. [1994] S.C.J. No. 37, [1994] A.C.S. no 37, [1994] 2 S.C.R. 165, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, 1994 CarswellOnt 376, 47 A.C.W.S. (3d) 557 [^5]: In a Motion to Change an order for custody or access that was made under s.102 of the CYFSA, there is no prior CLRA file in which the order sought to be changed was made. All of the evidence that sets out the circumstances that prevailed at the time of the making of a s.102 order is contained in a court file that records a proceeding under the CYFSA (or CFSA). These proceedings are private and confidential and require a court order for materials therein to be released to a CLRA court. This is even more of a barrier to showing a material change of circumstances if this is a contested issue. Clearly, the CLRA court can and should have access to materials that are part of the prior child protection file.