WARNING
The court hearing this matter directs that the following notice should 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.
Court File and Parties
ONTARIO COURT OF JUSTICE
CITATION: Children’s Aid Society of Algoma v. L.Z., 2021 ONCJ 638
DATE: 2021·09·20
COURT FILE No.: Elliot Lake 39/18
BETWEEN:
CHILDREN’S AID SOCIETY OF ALGOMA, Applicant,
— AND —
L.Z. E.C. T.M. (Deceased) Respondents.
Before Justice John Kukurin Heard on September 13, 2021 Reasons for Judgment released on Sept 20, 2021
Counsel: Ms. Sarah Bujold..................................................................... counsel for the applicant society Mr. Douglas Kearns.................................................... counsel for the respondent mother, L.Z. Mr. John Hooper......................................................... counsel for the Respondent father, E.C. Mr. T.M. (deceased) Mr. Trevor Simpson...................................... counsel for the Office of the Children’s Lawyer, legal representative for the child
KUKURIN J.
[1] These are my Reasons for my decision on the issue of variation of temporary care and custody of four children, ages 16, 12, 3 and 3. This is a claim in the motion of the society at Tab 1, Vol. 2. It has a secondary claim for temporary access by the mother to all four children, and by the father to the three year old twins.
THE ISSUES
[2] There are several issues that surface from the society’s motion:
➢ Is the society required to obtain a warrant from a Justice of the Peace to bring to a place of safety a child who is in the temporary care and custody of a ‘kin’ caregiver by virtue of a court order made under s.94(2)?
➢ Is a kin caregiver who has an order for temporary care and custody, and from whom a child is removed (apprehended) by the society, a “party” to the society’s motion for variation of temporary care and custody? If so, what rights does such a person have in the proceeding and in the motion?
➢ In a variation of a temporary care and custody order, is there a presumption or a statutory preference for a child remaining in the temporary care and custody of the kin caregiver unless the court is satisfied that the child’s best interests requires a change, as is the case under s.113(8) and s.115(10), subsections that apply to status review proceedings?
➢ If the court can vary a temporary care and custody order to a different temporary care and custody order, what test does the court apply in doing so?
➢ Do sections 94(4), 94(5) and 94(11) apply to the variation of a temporary care and custody order?
➢ If one child in a household of four children represents a source of a risk of harm to the other three, how does the court prioritize its placement decisions in the context of a variation of a temporary care and custody decision?
THE BACKGROUND
[3] I quite recently gave a decision by way of an endorsement relating to the temporary care and custody of these same four children. In so doing, I reviewed the background sufficiently to avoid the tedious process of repeating the exercise here, and to justify my cutting and pasting excerpts from that decision into this one.
[4] On March 18, 2021, I wrote by way of background,
[1] The matter before the court is a child protection application in which the applicant society seeks a finding that the four children are in need of protection under risk of physical harm grounds [s.74(2)(b)(i) and (ii) CYFSA] and is officially seeking that they be placed in the care and custody of their mother subject to society supervision with a number of conditions for 12 months. In fact, a temporary care and custody order was made August 20, 2018 ‘without prejudice’, and the ‘without prejudice’ qualification was removed at a temporary care and custody hearing on Nov 9, 2018.
[2] The mother’s problems were apparently being dealt with, or at least coming under greater control in 2018 and into 2019. During this period of time, the maternal grandmother (MGM), V.Z., was in the mother’s home assisting the mother and helping out with the children and the care of the home. However, the problems did not entirely disappear and began to flare up again in 2020 after the MGM left the mother’s home (exactly when unknown) and the mother was on her own again with sole care of the children. These problems included:
(a) an infestation of bedbugs which the mother was not successful in eradicating for a long time, and which resurfaced in 2021
(b) the mother’s desultory co-operation with the housing authority of her rental housing unit
(c) the mother’s lack of supervision of her eldest child C., age 16, and her apparent ignorance of what he was up to
(d) the mother’s failure to ensure that the child R. attended school regularly resulting in his being greatly behind academically
(e) the mother’s poor management of the cleanliness of her home and the hygiene of the children
(f) poor management of her social services funding including suspicions that some amount was sent to persons in the drug trade
(g) parentification of R. helping with the younger twin siblings, A. and F., at the expense of his schooling
(h) the mother’s lackadaisical follow through, then abandonment of her counseling.
[3] The problems became quite flagrant by late 2020 and early 2021. R.’s school authorities contacted the society about R.’s truancy. The society found R. at home looking after the 2 year old children. The bedbugs were back. In addition, there was a lice infestation. The mother appeared strung out and perhaps under the influence of drugs. The child C. was struggling with his mental health. He was found begging on the street. The mother had no knowledge of his whereabouts and no insights into his problems. On one occasion, the mother was not at home, and the child R., age 11 was caring for his twin sister, age 2. There was some suspicious white powder, and although not identified, found in the mother’s home in circumstances that suggested drug use, and illicit drug use. The society confirmed with the mother’s counsellor that the mother’s file was closed as she had not actually engaged with the counsellor.
[4] The MGM was called and came back into the picture, The society wanted the mother out of the home. She left, and is residing with a maternal uncle. The society brought a motion at Tab 16 and an order was made without prejudice placing the four children in the temporary care and custody of the MGM [V.Z.] who is residing with them in the mother’s residence. This order also provided for maternal and paternal access supervised in the discretion of the society. The parental access was to be “reasonable” but otherwise was devoid of any specifics as to time, duration, location and frequency. What has evolved is that the mother sees the children in their home most of the days of the week from 7 am to 9 am and from 6 pm to 8 pm with the consent of the MGM, and although it is not entirely clear, is supervised by the MGM, possibly more loosely than normal supervised access.
[5] The father had an interim access order from Nov 9, 2018. His access is arranged with the society and it supervises such access. Neither he nor the society was seeking any changes to his access order this day. He resides in the North Bay area and has a four hour drive each way. He also is facing some serious criminal charges, unrelated to the mother or the maternal family. He supports the mother in this proceeding. He also makes some allegations, or more properly, insinuations about the MGM’s history that might make her an inappropriate caregiver and custodian. He offers little by way of factual details, and does not oppose that the MGM have temporary care and custody.
[6] The mother also seems to concede that temporary care and custody should, for the present rest with the MGM. The mother seems to have a fairly good relationship with the MGM, and clearly benefits already, from an interim access point of view, in having regular and frequent visits with her children in their own home. However, she wishes to be able to return to that home on a full time basis. She argues that she has her bedroom which is still available to her. She points to the period when the MGM lived in the home with her and her children, and the society’s evidence seems to confirm that things were going much better then, with problems being addressed and dealt with. She argues also that she would be a great physical help to the MGM, especially with child care. She agrees that her contact with the children should take place under the MGM’s supervision. By this, I take her submission to mean that the grandmother would not leave the children alone with the mother.
[7] The society opposes these suggestions. Why it does is not entirely clear, but the society’s suspicions that the mother is back using drugs is one of the main reasons. On the other hand, the society’s suspicion is only that. It has not tested the white powder substance it found in the home and the mother claims it was tylenol tablets that she crushed before ingesting.
[8] The society also has historical maternal drug use information which, although not trial worthy, can be relied upon by the court at this stage if it is found reliable and trustworthy in the circumstances. I do to the extent that the mother did use illegal drugs and has a propensity for choosing what turned out to be poor male partners who were also involved with illegal drugs. In addition, the mother was involved in domestic violence, and although I do not make any finding that this was her fault, it is enough that this occurred in the home where the children were.
[15] I add that this proceeding was started August 20, 2018, is already over 2 ½ years old and no finding in need of protection is anywhere in sight. Moreover, with this change in temporary care and custody, the society is in an incongruous position with its current claim for disposition. It has to decide if it is sticking with or changing its claim. If it changes, it should file new Plans of Care.
[5] The foregoing provides some more distant history which explains why the grandmother (MGM) was in the mother’s home caring for the children. There is more recent background information that is needed for the context of the present motion.
[6] The children were placed by the society with the MGM in late February 2021. On March 1, 2021 a ‘without prejudice’ order was made giving the MGM legal temporary care and custody subject to society supervision and conditions. The society monitored the home. There was still a bedbug problem. The Housing Authority supervisor advised the society that in mid April, the MGM had done a “great job” in preparing the home for pest treatment. But on July 29, 2021, a worker from the Housing Authority advised the society that the MGM had not prepared the unit for bedbug treatment when it attended on June 14, 2021. Incongruously, this same worker advised the society that the Housing Authority inspection on June 14, 2021 “had revealed no bed bugs”.
[7] It seems that lice were also a recurring issue among the children. The MGM had been in touch with the family doctor about this problem. She was asked to bring in one or both of the twins. She did. She apparently had a long wait and left before being seen. The doctor’s office indicated to the society that it would make a new appointment for the MGM with a locum physician. Apparently, prescriptions for head lice were being provided to the MGM but it is unclear by whom, and why the MGM was looking for a prescription. The maternal uncle, T., was in the home by late July, temporarily, after losing his own home. He was helping the MGM in her care of the children.
[8] On August 3, 2021, the society received considerable information from Cst. Bev Gauthier of the OPP whose brother J.G. was a partner of the MGM. The information conveyed to the society by this police officer was partly from her personal observations, partly from her knowledge of her brother, and mostly from an anonymous and unidentified “police informant” who had advised her of his/her personal observations of the MGM and J.G. snorting percocets in the presence of the twins, of his/her knowledge, source of which was not identified, that the MGM was spending $700 every two weeks on percocets, was in debt, and had been cut off by a drug dealer in town.
[9] This appears to have been the final impetus for the society to move the children out of the care of the MGM which it did with the assistance of two uniformed police officers. It apprehended [a word that is not only much more concise than “remove from and bring to a place of safety” but carries a much richer nuance of what actually takes place] the twins and placed them in foster care where they remain to date. There is some question as to whether the two older children, C. (age 16) and R. (age 11) were apprehended by the society. C. was age 16 and under s.81(7) cannot be apprehended without a warrant, and under s.81(2), no warrant can be issued for his apprehension.[^1] C. eventually left the home with the apprehending worker as did R. No warrant was obtained by the society. There is no evidence that it even considered obtaining a warrant, much less attempted to.
[10] However, C. and R. were placed back in the home with their uncle T. as the MGM agreed to vacate the home and the society agreed to this plan. It would not agree to the twins returning to the home. The society almost immediately filed this motion to vary the existing order and on August 9, 2021, an interim without prejudice variation order was made placing C. and R. with the uncle, subject to society supervision and conditions, and the twins, A. and F., in care and custody of the society. I infer from these facts that R. had also been apprehended by the society.
[11] The society’s evidence also sets out that the MGM denied to the society worker the drug use that the society was alleging, and stated that she used only prescribed medication. It also sets out that it spoke with the children C. and R. and they both denied any knowledge of, or exposure to, substance misuse by the MGM or by J.G.
[12] One last item of note is that the home of the children has always been the same home. It is a five bedroom home that is apparently owned or managed by the “Housing Authority” and is leased to the mother, notwithstanding that the mother has not been residing in the home to the Housing Authority’s knowledge, and apparent consent, since Feb 2021. The society indicates that, based on its discussions with personnel from the Housing Authority, the uncle may be evicted from that home as he is not the legal tenant; the mother is. He has no other place to go. There are no eviction proceedings currently.
TEMPORARY CARE AND CUSTODY CONTEST
[13] From a panoramic standpoint, the contest in this variation motion is not between the society and the grandmother. It appears that the grandmother is having surgery in late September 2021 followed by a likely lengthy period of recovery and concedes that she would be unable to provide the full time care that the four children would need. She anticipates helping out with their care after her surgery in increasing amounts commensurate with her recuperation. She advocates the placement of all four children with the uncle T., and also advocates the return of the mother to reside in the family home.
[14] The mother also supports this plan which will re-unite the children, provide a caregiver (the uncle) who is already approved by the society and the court for two of them, would add to the mix the mother, who had been the children’s caregiver and custodian when the society intervened in this family over 2 ½ years ago, to lend assistance in the running of the household, and coincidentally restoring her to active tenant status and deflating at least one ground her landlord has for starting eviction proceedings.
[15] The paternal uncle T., has indicated that he is not only committed to caring for the two older boys but also wishes the twin girls to return to the home. He claims in his affidavit sworn Sept 2, 2021 that “the issues with lice and bed bugs at our home have been resolved”. The society does not dispute that in any of its evidence. While the twin girls were reported by the society to have a “severe” lice problem, they have been in society foster care now for 1 ½ months and it is inconceivable that the lice problem with them has not been eradicated. In fact, the society indicates that it had to resort to an “outside agency” to properly treat the twins.
[16] The society is against this plan insofar as it relates to the three year old twins. It refers to their vulnerability but in the context of their return to the grandmother’s care, not to their placement with the paternal uncle. In fact, the society says little that is disparaging about the uncle and his child care abilities, except:
➢ he has financial difficulties (He is an ODSP recipient)
➢ he has difficulties handling the child C. (further detailed below)
➢ he is facing alleged imminent eviction by the Housing Authority
➢ he is the target of vague innuendoes, but no facts, by the father of the twins
➢ he disagrees with the society position with respect to the twins.
[17] The landscape is tilted somewhat. It is not a contest between the society and the grandmother, but more between the society and the paternal uncle. This is the context in which the court is asked to make a decision on variation of temporary care and custody. As a note, the placement of the two older children with the uncle is under a “without prejudice” order and so their placement remains an active issue in this motion. It is not just the twin girls.
ANALYSIS OF THE ISSUES
[18] With the foregoing background and statement of the real contest, it is appropriate to return to the issues that present themselves in this case.
Issue No. 1 – Is the society required to obtain a warrant from a Justice of the Peace to bring to a place of safety a child who is in the temporary care and custody of a ‘kin’ caregiver by virtue of a court order made under s.94(2)?
[19] I will continue to use “apprehend” for convenience and conciseness despite the “removal to a place of safety” terminology in the CYFSA. The society concedes that it cannot apprehend C. as he is, at age 16, legally exempt from apprehension by a society without his consent. That the society apprehended the other three children on August 3, 2021 seems to be an agreed fact. It did not return any of them to the grandmother who had an order for their temporary care and custody. Ergo, it removed them from her. The society also did so without a warrant.
[20] Does a society need a warrant to apprehend any of these three children? It is of note that the CYFSA provisions for apprehension of a child, with or without warrant do not have any specific temporal context.
[21] The elements of an apprehension are:
(a) the involuntary, and generally unilateral, removal by a Children’s Aid Society of a child under age 16 from a person having charge of that child; and
(b) the bringing of that child in a place of safety,
(i) either pursuant to a warrant issued by a Justice of the Peace, or
(ii) without a warrant.
No matter which way an apprehension is considered, it is unquestionably a significant intervention by a society in the authority of the care and the custody of the person having charge of the child. The justification for such an interference is the protection of the child that is removed. The state authorizes such removals by the Child, Youth and Family Services Act (the CYFSA), but this statute does not simply give a society carte blanche. In fact, there are pre-requisites to the issue by Justices of the Peace of warrants authorizing a society to apprehend.
S.81 (2) A justice of the peace may issue a warrant authorizing a child protection worker to bring a child to a place of safety if the justice of the peace is satisfied on the basis of a child protection worker’s sworn information that there are reasonable and probable grounds to believe that,
(a) the child is younger than 16;
(b) the child is in need of protection; and
(c) a less restrictive course of action is not available or will not protect the child adequately
[22] Judges in child protection courts have to assume that Justices of the Peace pay heed to the statutory pre-requisites and that they properly issue warrants where requests are made of them to do so. The CYFSA statute exists in large part to provide judicial oversight on the actions of children’s aid societies. Seeking a warrant before apprehending a child is a measure of which most courts would approve. Regrettably, not all societies seek warrants before apprehending. They often apprehend without a warrant. There are no statistics known to this court that provides the number of children in Ontario who are apprehended in any 12 month period, and the number of such apprehensions that are effected without a warrant.
[23] Where an apprehension is effected by a society without a warrant, there are pre-requisites as well There are evidently good reasons for the existence of statutory provisions authorizing a society to apprehend a child without a warrant, otherwise they would not be in the CYFSA. The provision is found in s.81(7) and is worth a closer look, as the pre-requisites for a warrantless apprehension are contained therein. Closely related are the accompanying s.81(8) and ss. 81(10) to s.81(13)
S.81 (7) A child protection worker who believes on reasonable and probable grounds that,
(a) a child is in need of protection;
(b) the child is younger than 16; and
(c) there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter on for a hearing under subsection 90 (1) or obtain a warrant under subsection (2),
may without a warrant bring the child to a place of safety.
S.81(8) A child protection worker acting under this section may call for the assistance of a peace officer.
S.81(10) A child protection worker who believes on reasonable and probable grounds that a child referred to in subsection (7) is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child.
S.81 (11) A child protection worker authorized to enter premises under subsection (6) or (10) shall exercise the power of entry in accordance with the regulations.
S.81 (12) Subsections (2), (6), (7), (10) and (11) apply to a peace officer as if the peace officer were a child protection worker.
S. 81 (13) No action shall be instituted against a peace officer or child protection worker for any act done in good faith in the execution or intended execution of that person’s duty under this section or for an alleged neglect or default in the execution in good faith of that duty.
[24] These are rather draconian provisions. Nowhere in the criminal law of Canada is a civilian, such as a child protection worker, given anything close to the power given by s.81(10) to enter a person’s home, by force if necessary, and under s.81(8), with the assistance of a peace officer, to search for and remove a child. This power of entry must be exercised in accordance with the regulations, but there appears to be only one regulation covering such entries, and it only requires the person entering the child’s home to provide identification if requested by the home occupant.[^2] Moreover, the statute accords to a peace officer, under s.81(12), who assists a child protection worker in an apprehension, the same powers as it does to the worker. It goes even further, in s.81(13) in prohibiting any lawsuit against either the child protection worker or the peace officer assisting, for any act or neglect or default in the execution of such apprehension so long as it was done in good faith. To see such extraordinary powers and protections in a civil statute should make any reasonable person step back and ask the question “why?”
[25] For an apprehension pursuant to a warrant issued by a Justice of the Peace, the above provisions seem to have a lesser impact. After all, a judicial authorization has been obtained in advance of the actual apprehension. But for a warrantless apprehension, there is no such judicial authorization. It is the decision of the apprehending child protection worker that is the critical piece in this process.
[26] Before a child protection worker can apprehend a child, he or she must believe on reasonable and probable grounds firstly, that the child is in need of protection. A “child in need of protection” is defined in s.74(2) and the definitions in this subsection are neither vague, nor limitless. They are very detailed and they are exhaustive. This means that there are no others. It would be a normal expectation that a society child protection worker who apprehends a child should be able to articulate, at the time of apprehension, under what particular clause of s.74(2) he or she believes that the child is in need of protection. Whether the grounds for that belief are “reasonable and probable” is not that worker’s subjective feelings. It is a determination for a court to make, just as it does in countless criminal cases when the question of reasonable and probable grounds is contested. How a court determines if reasonable and probable grounds existed at the time of apprehension is by looking at the evidence of the society. The court will do so further in these Reasons.
[27] Secondly, an apprehending child protection worker has another pre-requisite. That is, that the worker must believe, on reasonable and probable grounds, that there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter on for hearing, or to obtain a warrant to apprehend the child. This belief must also exist prior to or at the time of apprehension; it is a pre-requisite.
[28] How does a court determine if the worker believed he or she had such grounds at the time, and that they were reasonable and probable? Again, by looking at the evidence of the society, which this court will do further below. It should be a reasonable expectation of the court that the society would provide in its evidence what the risk of harm was to the child, whether it was to the child’s health, or to the child’s safety (or both), that the risk was substantial and why it was so, and that the risk would exist between the time the child was apprehended and the time it would take to bring the matter for hearing before the court OR the time to get a warrant from a Justice of the Peace.
[29] The sad reality is that despite the rhetoric about the court having oversight on the acts or omissions of societies under the Part III CYFSA (Child Protection) provisions, rarely do they do so at the apprehension stage. There are rather few reported cases that deal with warrantless apprehensions, and rarely are there any consequences for societies when they do not comply with the requirements for such apprehensions. This stems in large part to the 2000 Supreme Court of Canada majority decision in Winnipeg Child and Family Services v. K.L.W.[^3] where Justice L’Heureux Dube says at paragraph 116:
[30] Justice L’Heureux Dube was dealing with a constitutional challenge to the apprehension provisions in the Manitoba child protection legislation. In balancing the risks and benefits, she favoured protection of the child, even in non emergency situations, as justifying apprehension, with the reduction of the trauma of an unjustified apprehension by the holding of a post apprehension hearing that is both prompt and fair. The hearing she was referring to was clearly not the “apprehension hearing” that must be before the court (in Ontario) within 5 days of the apprehension, but rather a hearing to determine whether a child is in need of protection.
[31] The dissenting decision of Justice Arbour in the same case disagreed [at paragraph 16]
“I do not believe that a prompt, post-apprehension hearing on its own is sufficient to make the warrantless, non-emergency apprehension of a child constitutional under s. 7. Rather, I believe that an ex parte warrant authorizing the agency to apprehend the child is an important procedural safeguard in the context of non-emergency apprehension”
[32] She continues [at paragraph 19]
“ …the principles of fundamental justice require that the person who authorizes the apprehension of the child must make that decision on an impartial basis. In other words, the person who decides to apprehend cannot be in the position of both investigator and adjudicator.”
And at paragraph 23.
“ … The conflation of these two roles within the same agency seriously undermines the ability of these investigators to act impartially and, consequently, risks the possibility that the statutory requirement of reasonable and probable grounds will be diluted -- possibly to the extent that children may be apprehended on the basis of suspicion” …” This failure to adhere to statutory requirements reinforces, in my view, the desirability of prior judicial review in non-emergency cases.”
[33] While the majority decision in K.L.W. has not been overruled, the result has often been that a society will simply apprehend without a prior warrant resting on the lack of consequences for doing so that has existed now for over two decades. The adherence to statutory pre-requisites has rarely if ever been referred to in the evidence of societies, particularly the substantial risk to health or safety that would ensue during the time the society needed to obtain a warrant.
[34] Dealing with the present case, several things are apparent:
➢ the society had a supervision order allowing it to enter the home of the children for almost three years from August 18, 2018 to the date of apprehension, first over the mother, then over the grandmother;
➢ the society sought temporary care and custody with the grandmother, and she presumably passed any kin assessment of the society;
➢ the bed bug problem was not new: it had persisted for over a year, well before the grandmother was granted temporary care and custody and it was a problem that even the Housing Authority had not been able to eradicate;
➢ the grandmother also inherited the lice problem and was taking steps to deal with it, perhaps not totally successfully;
➢ the society did not apprehend the children because of bed bugs or lice;
➢ the society apprehended the same day that it obtained information from OPP Cst Bev Gauthier, that she had obtained from a police informant, who she refused to name, as to the opioid drug use of the grandmother and J.G., in the presence of the twins, and the grandmother’s drug debt and her involvement with a drug dealer;
➢ the society did not believe either the grandmother who denied such drug use, nor C. and R., both of whom denied any knowledge of or exposure to substance misuse by the grandmother or by J.G.
➢ Cst Bev Gauthier confirmed that she had a close relationship with C. “over the past few years” yet C. admitted shortly after the apprehension that he was addicted to street drugs and was using drugs daily.
[35] The society’s evidence at this variation hearing came from Ms. J. Murray, the child protection worker who had been assigned to the family. It was she who apprehended the three children. She acknowledged that she had attended at the home on a regular basis to meet with the grandmother and the children, both announced and unannounced and that the children consistently appeared comfortable there. She did not say why she believed that the children were in need of protection on August 3, 2021 but left it to the court to speculate. Nor did she say why it was imperative that the children be removed immediately on August 3, 2021. Nor did she articulate in her evidence what risk of harm the children would be placed in if they were not removed immediately, and whether this was harm to their health or to their safety. Nor was there any evidence that the risk of harm was “substantial”. Finally, there was absolutely no attempt to explain the lack of success in obtaining a warrant to authorize the apprehension. In fact, the court was left to speculate on that as well. It does so and that speculation is that no attempt was even made by Ms. Murray to seek a warrant.
[36] In a prior decision involving this same society, Children’s Aid Society of Algoma v. L.G., 2020 ONCJ 297, I referred to testimony of a society child protection worker as to the policy and practice of this society on apprehensions [at paragraph 81]
“At trial, Ms. Goulding testified that it was not the society's practice to seek or obtain warrants to apprehend as it is well known that there are no Justices of the Peace in Elliot Lake except infrequently. Her knowledge of the closest Justice of the Peace was in Espanola, but she did not appear entirely sure of that.”
[37] I assume that this practice has remained the society’s practice in Elliot Lake court, as this case exemplifies that no attempt was made to obtain any warrant here as well.[^4]
[38] By way of recapitulation, the society apprehended three children from a family with which it had a court ordered supervisory role for three years, on the basis of information of drug use and involvement of the grandmother attested to by the child protection worker in her affidavit evidence. This information was not first hand but came from an OPP officer who also did not have this information first hand. The OPP officer’s information came from another person, a police informant, who is not identified by name and whose source of the information is said by the informant to be only partly first hand, and the balance not attributed to anyone.
[39] The court may admit and act for purposes of hearings under s.94 CYFSA, (of which this variation hearing is clearly one) on evidence that it considers credible and trustworthy in the circumstances. I do not consider the evidence of Ms. Murray, the ultimate source of which is an unidentified police informant, to be credible or trustworthy. It not only offends s.94(10) of the statute, but also Family Law Rule 18 and blatantly offends Rule 19, both of which Rules apply to evidence on motions:
CYFSA S. 94 (10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.
Rule 14 (18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. O. Reg. 114/99, r. 14 (18).
Rule 14 (19) The affidavit may also contain information that the person learned from someone else, but only if,
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true;
I do not merely assign no judicial weight to evidence of Ms. Murray obtained from OPP Cst Gauthier. I do not admit this evidence in this proceeding. The apprehension, in my view, was improper, did not have the pre-requisites required by the CYFSA, and was based on information that did not meet the threshold of admissible evidence. Moreover, there were no exigent or emergency circumstances and none that could be relied upon for any belief of substantial risk to health or safety.
[40] Issue No. 2 – Is a kin caregiver who has an order for temporary care and custody, and from whom a child is removed (apprehended) by the society, a “party” to the society’s motion for variation of temporary care and custody? If so, what rights does such a person have in the proceeding and in the motion?
[41] Issue No. 3 – In a variation of a temporary care and custody order, is there a presumption or a statutory preference for a child remaining in the temporary care and custody of the kin caregiver unless the court is satisfied that the child’s best interests requires a change, as is the case under s.113(8) and s.115(10) that apply to status review proceedings?
[42] It is important to note the distinction between a foster parent and a person having temporary care and custody of a child. The foster parent has care of a child who is in the temporary care and custody of the society. The society chooses the foster parent and it can change the foster parent unilaterally and arbitrary if it wishes to do so. The person who has temporary care and custody acquires that from the court, and only the court can change that with a variation order. This has some implications from a procedural point of view.
[43] The temporary care and custody order in this case at the time of apprehension represented the status quo. The society upset that status quo by apprehending the three children, but the legal status quo remained until a variation order was made. One was, in fact, made but as a “without prejudice” order. The variation order is actually being sought in this motion.
[44] This prompts the question of whether the grandmother is or should be a party to the society’s variation motion. The grandmother is not a party in the society’s child protection application as who are parties is determined by the CYFSA statute and the grandmother does not qualify. How then does she get to say her say in the society’s motion? In this case, the grandmother has signed an affidavit, but it has been filed by the mother who is a party in the application. A statutory party may not always be as accommodating to a non party such as the grandmother, particularly if they were adverse in interest. It is appropriate to consider the grandmother’s status in this variation motion from firstly a procedural point of view.
[45] Rule 7(2) provides
Rule 7 (2) For purposes of a motion only, a person who is affected by a motion is also a party, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support. O. Reg.114/99, r. 7 (2).
[46] Is the grandmother affected by the society’s motion? I cannot conceive that anyone would say she is not. The society is seeking to strip her of her court awarded authority (admittedly temporary) as custodian and caregiver of these children.
[47] If she is a party, should she be named as such in the variation motion of the society? Should she be served with the society’s Notice of Motion? The Form 14 Notice of Motion is addressed “TO THE PARTIES” and states to them that
‘…you should … prepare your own affidavit, serve it on all other parties and file it at the court office not later than 4 days before the date above [return date]”
[48] In fact, the court record shows that the society has not named the grandmother in its variation motion, It has not served the grandmother with either its Notice of Motion or with any of its evidence on this motion. The other parties have similarly not served the grandmother with their evidence. This is not excusable as the society’s claim in its motion arises from what it alleges are the grandmother’s faults as a caregiver and custodian. Fairness demands that she be confronted with the society’s allegations and that she have an opportunity to respond to them and to participate in the motion, with legal counsel if she chooses.
[49] The jurisprudence that relates to the adding of a party in child protection application does not apply to a situation such as the foregoing. The party status is established by regulation (ie The Family Law Rules) and the onus is on the society to comply. A person in the position of the grandmother does not bear the onus of justifying her party status in a motion such as this one. It is the society that has the onus of justifying why it does not serve her with its motion materials and treat her as it would treat any party to its motion.
[50] I deal with the third issue as it is closely related to the grandmother’s status quo and her entitlement to temporary care and custody and to party status in this variation motion. The issue is whether there is a statutory presumption or preference, or an even stronger requirement to favour the status quo.
[51] For lack of a better word, I refer to this as a presumption. Such presumption is expressed in the CYFSA but not expressly in connection with temporary care and custody. For example, it surfaces in status reviews:
S. 113 (1) This section applies where a child is the subject of an order made under paragraph 1 or 4 of subsection 101 (1) for society supervision or under paragraph 2 of subsection 101 (1) for interim society care.
S. 113 (8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody. [My emphasis]
From a plain reading, this ‘presumption’ does not apply to our temporary care and custody scenario.
[52] In a status review under s.115, similar provisions are found:
S. 115 (1) This section applies where a child is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), or is subject to an order for society supervision made under clause 116 (1) (a) or for custody made under clause 116 (1) (b).
S. 115 (10) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody. [My emphasis]
Again, this presumption does not apply to our temporary care and custody scenario. But can one be inferred?
[53] In both instances of the status review, a court has made a protection order placing the child with the society, either for a specified time (ISC), or for no specified time (ESC), or with someone else for a specified time up to twelve months, but subject to society supervision. What difference do those circumstances have to the circumstances in this case? The biggest difference is that in the case at hand, the order is a temporary one. But a temporary care and custody order can last much longer than 12 months, and often does. It, like a s.101(1) final order, is made by a judge, and made on the basis of evidence. The temporary aspect of the order is because there has not yet been any finding made that the child is in need of protection. In fact, it is not all that unusual for a final order made after a finding to have exactly the same terms as the temporary care and custody order that had existed to that point in time (except that the final order cannot exceed 12 months).
[54] Some jurists can read things into legislation. Some jurists get criticized for being too activist and for interpreting legislation by making laws that do not actually exist. I do not infer that the grandmother’s temporary care and custody has more standing than the status it has as any existing order. I do not accord to it any presumption other than that it is an order that was made in the best interests of these children and should remain until and unless it is shown to no longer be in their best interests. Whence comes the best interest criterion? In this case, from s.94(5):
S. 94(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 care and custody of a person who is a relative of the child or member of the child’s extended family or community.
[55] The end result of this analysis is that the grandmother was short shrifted by the society not including her as a party to its motion, not being fair in allowing her to read what it was alleging about her, and to defend herself against these allegations. Moreover, it was the society that upset the status quo unilaterally by its apprehension and it is the society that has the burden of satisfying the court that with admissible evidence that, the status quo must be changed.
[56] Issue No. 4 – If the court can vary a temporary care and custody order to a different temporary care and custody order, what test does the court apply in doing so?
[57] Issue No. 5 – Do sections 94(4), 94(5) and 94(11) apply to the variation of a temporary care and custody order?
[58] These issues are somewhat intertwined. There really is no test specified in the CYFSA statute that guides the court on what criteria apply to determine if an existing temporary care and custody order must be varied. The section is short, succinct and devoid of any guidance and reads as follows:
S. 94 (9) The court may at any time vary or terminate an order made under subsection (2).
[59] The marginal heading before s.94 indicates that s.94 deals with “Custody During Adjournments”. This is still true for the context of the present variation motion even though the adjournments are now in their third consecutive year. Section 94 provides alternative options with resect to temporary care and custody orders that a court may make. However, they are not options that are equal in terms of the court’s selection of the option. There is a hierarchy within s.94 and the court must not only wend its way through this hierarchy, but must give reasons why it ultimately chose a particular option. For example, orders under clauses (c) or (d) of s.94(2) [often termed ‘removal orders’] cannot be made unless the society meets the criteria in s.94(4).
S. 94 (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 and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
[60] There is a further hierarchical provision that prefers clause (c) orders to clause (d) orders.
S. 94 (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.
[61] Moreover, s.94(11) now requires the court to consider a child’s views and wishes before making a temporary care and custody order.
S. 94 (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.
It is gratifying to see that this society makes the effort to include the views of children in its affidavit material under the heading “Voice of the Children”
[62] The question is whether these subsections apply only when a court considers temporary care and custody placement following a removal from the person who had charge of the child immediately prior to society intervention (but no court order), or do they also apply to a court’s consideration of temporary care and custody placement following the removal from the person who had an order granting him or her with temporary care and custody?
[63] My view is that the court must in the variation motion, wend its way through the hierarchy established by s.94. In this hierarchy, temporary care and custody in favour of a society is a last resort option. Other choices must first be judicially considered, and if adequate, must be chosen.
[64] Section 94(4) omits in its express wording the most important element leaving this to be implicitly understood. And it almost always is. The words left out should be positioned at the end of the subsection and are ‘ should the child be returned to the person who had charge prior to the society’s intervention’
[65] In the variation motion, this test must also be met by the society with the difference that the person who had charge is the person who had temporary care and custody prior to the society’s intervention. In this case, the society must satisfy the court that reasonable grounds exist to believe that there is a risk that the children are likely to suffer harm if they are returned to the grandmother. The society must also meet the second branch of the two part test in s.94(4), namely to convince the court that no order that the court can make can adequately protect the children, again, if they are returned to the grandmother.
[66] Even if the society meets both parts of this two part test, the court must still consider other potential placements namely “… a person who is a relative of the child or a member of the child’s extended family or community” and to determine whether it is in the child’s best interests to place the child with such person(s) before placing the child with the society. In satisfying this statutory imperative, the court must necessarily look to s.74(3) which lists the mandatory but non exhaustive best interests of the child circumstances, some of which may admittedly not apply in every case. Societies often skip s.74(3) factors when seeking temporary care and custody. The court however, cannot.
[67] One of the considerations the court must specifically consider is the views and wishes of the child unless they cannot be ascertained. Perhaps for three year old twins, they cannot be articulated. However, perhaps they can be inferred. Certainly for 12 year old R., they can.
[68] In summary, the same test applies in a variation of temporary care and custody contest as does following an initial society intervention. The only change is that the person to whom a child may be returned/placed may be different.
[69] In the present case, the society has been lacking in the quality of its evidence. The evidence it presents to justify apprehension without a warrant is the same, with a few updates, that it presents to justify its claim for temporary care and custody. What other evidence does it produce? It produces evidence from the father of the twins that insinuates his disapproval of the grandmother as a caregiver and custodian for his 3 year old daughters, but provides not one iota of factual information to justify what is only his opinion. The society’s evidence is almost totally hearsay and even where admissible, it is found to lack credibility and trustworthiness. For example, the information gleaned from personnel at the Housing Authority is at times contradictory, at others incomplete, and there is no reason given why these sources of the information cannot provide sworn evidence themselves. The same can be said of information from the assistant of the family’s doctor, some of which seems to be an interpretation of the doctor’s thoughts. The most critical information comes to the court from a unnamed police informant, through a police officer and through a child protection worker, which I have rejected as evidence relating to the apprehension and which I equally reject in relation to the variation issue.
[70] The society has failed to satisfy the court that the children should be removed from the grandmother.
[71] However, that is all moot as the grandmother has satisfied the court that the children cannot be returned to her at this point. The grandmother is scheduled for surgery later this month and will be in no position to continue caring for the children for an unspecified length of recuperation time. This effectively forecloses her from continuing as a relative providing temporary care and custody.
[72] Issue No 6 – If one child in a household of four children represents a source of a risk of harm to the other three, how does the court prioritize its placement decisions in the context of a variation of a temporary care and custody decision?
[73] The society’s evidence with respect to the child C. is surprising when taken alone, but is astounding when taken in the context of this family and the society’s involvement in this family. I summarize the evidence of the society about C.:
➢ he has struggled with his mental health for some time
➢ his mental health was accentuated by lack of treatment and follow through
➢ He was not compliant with medication
➢ He was not faithful with his counseling appointments, and deliberately missed his assessment at Algoma Family Services
➢ He was found begging on the streets
➢ he was sent home from school for fighting
➢ his bedroom room was littered with cigarette butts on Aug 3, 2021
➢ He was hospitalized under the Mental Health Act as he planned to jump off a bridge
➢ He had suicidal ideations
➢ He was often away from home, whereabouts unknown, while in the temporary care and custody of his mother
➢ He was reported to the society by his grandmother to be using drugs and drinking, and by his uncle T. to be using street drugs daily
➢ He was also infested with head ice
➢ He was, in the view of the Housing Authority supervisor, the source of bed bugs in the home as his bedroom had the worst infestation
➢ He was not listening to his uncle T. or following house rules
➢ He was taking his anger out on his brother R., being mean and bullying, to the point that R. was sent to stay at another uncle’s home for a time.
➢ He was trying to purchase a gun online
➢ He admitted to a society assessment worker, on August 17, 2021, that he was addicted to street drugs and was using daily, that he had memory lapses, that he had tried to purchase a gun, and to not following through with mental health services.
[74] If even one half of these are true, C. is surely a child in need of protection. He will be age 17 in two months time. Neither his mother, nor his grandmother, nor his uncle has been successful in dealing with his problems. More to the point, the society, which had a supervision order that covered C. since August 2018 – now three years – has been equally unsuccessful. What is astounding is that it not only allowed C. to live in the home with his siblings in the temporary care of his grandmother, but has then placed him in the same home in the care of his uncle, who by any reasonable standard, is unable to adequately care or control C. I note that C. was not yet age 16 years when this proceeding started.
[75] It is clear to me that C. should not be in this home. That he has serious problems is evident. That they are not being addressed in the home is equally evident. I can hardly believe that this court made an order, albeit ‘without prejudice’, that placed C. in the temporary care and custody of his uncle on August 9, 2021. C. represents a risk of physical harm to his siblings. He is a risk of physical harm to himself, and likely to anyone else with whom he interacts. He is a loose cannon, and the society, knowing what it knows about him, should be aware of that.
CONCLUSIONS
[76] To encapsulate, the uncle is in the home with C. and R., but the home is leased to the mother. The Housing Authority made some accommodation while the grandmother lived there with the children, but is reportedly not willing to do so for much longer while the uncle lives there. The mother was seeing the children almost daily, but by day visits only. The 3 year old twins were removed and have been in foster care for the past month and a half. The head lice impeded maternal access as well as paternal access, but has now been eradicated. The bed bug situation has also been dealt with. The uncle is in agreement that the twins return back to the home and the mother and grandmother support this plan. The family wants the mother to return to the home as well. The society opposes both of these measures citing only the vulnerability of the twins as the reason they must remain in society care and relying on many other reasons why the mother can have day access only. The father resides a four hour by car distance away, rarely sees the children and has criminal charges he is facing. He prefers that the twins remain in society care but gives no factual basis for this preference. The grandmother is temporarily out of the picture as a caregiver due to her upcoming surgery. The mother is reportedly a great help with the care of the children. The society has not obtained even a date for a finding that any of the children are in need of protection since their initial apprehension from the mother in August 2018 – three years ago.
[77] The society has essentially approved the uncle as a caregiver for the two older children when it returned them to him at apprehension. Whether it did a formal ‘kin’ assessment is undisclosed, but a society assessment worker (Ms. Dumanski) did meet with him on August 17, 2021. In any event, the uncle has been in the home for much of the time that the grandmother had temporary care and custody (five months from March to August 2021) and was assisting her in her care of the children, all in plain sight, and with no objection from the society. He has continued to remain in the home since then. The society has produced no evidence that he is an inadequate person to parent the twins as a temporary caregiver and custodian. The court must consider s.94(5) CYFSA and determine if it is in the best interests of the twins that they be placed with a relative (their uncle is a relative by virtue of the definition in s.2 CYFSA) before placing them with the society.
[78] I conclude that it is in the twins’ best interests to be in their uncle’s temporary care and custody. Before even considering the s.74(3) considerations, the history of this case is a portent of the pace it will move at in the future. I foresee the twins, if in society care, separated from their family, and before too long, the society will have to seek extended society care for permanent separation. Considering s.74(3) factors, virtually all of these favour the placement of the twins with their uncle. The only fly in this ointment is C.
[79] With respect to R., I agree that his placement with his uncle is appropriate. The biggest concern about R. has been his absences from school, and his falling behind academically, but many of these were due to his undertaking too much of the care of (parentifying) his twin sisters.
[80] Accordingly, I propose to order that the uncle T. will have temporary care and custody of R., A. and F. subject to supervision by the society. There will certainly be conditions.
[81] I propose to order that C. will be in the temporary care and custody of the society. Although C. cannot be apprehended without his consent, he can be placed in the temporary care and custody of whomever the court feels in his best interests and the court can do so without his consent. The society has the resources that are best suited to help him with his problems, to get him professional help, and to ensure that he stays faithful to his treatments and any programs.
[82] The society has dismally failed to convince this court that the grandmother is an objectionable person to have contact with any of the children. While I make no order for her access to them, I have no objection to her spending time at the uncle’s home whenever she and he want. She can help with the care of the children until her medical condition prevents her, and afterwards when her recuperation allows her. She cannot move in to the home of the uncle. However, I have concerns about the grandmother’s partner, J.G. There is enough evidence that convinces me that he is using drugs, and I suspect that they are not just prescription drugs. He will not be allowed to be at the uncle’s home at any time, or to have contact with the children.
[83] The father of the twins has an order for access to them in the existing without prejudice order. I propose to simply continue that order.
[84] The mother presents a different and more complicated problem. The society’s child protection concerns with respect to the mother are related to “domestic violence, substance abuse and lack of parenting skills”. Notwithstanding these, it has allowed the mother to have extensive access to the children in the home that she still rents from the Housing Authority. When the grandmother was given temporary care and custody, the mother was not only allowed, but expected to attend the home Monday to Friday weekly from 7:00 am to 9:00 am and from 6:00 pm to 8:00 pm. In the summer, after the uncle was in the home as the temporary caregiver and custodian, this increased to 2:00 pm to 8:00 pm Monday to Friday and on Saturdays from 4:00 pm to 8:00 pm. The mother got no “in person” access to the twins, apparently due to their having lice.
[85] The mother still has a relationship with the father but they do not reside together. He lives four hours away. He rarely visits Elliot Lake. Domestic violence between the mother and father, if it still occurs at all, will not be in the presence of the children. The substance abuse concerns about the mother are not illusory. She is associating with persons who the society claims are drug users and the mother herself has admitted to drug use recently while with one of them. However, there is little evidence of what her drug use actually consists of currently. It is at a level where the society is allowing her rather substantial periods of time with her children. In addition, the uncle will be present to monitor her contact with them and to ensure that she is not under the influence. In addition, the society will be able to enter the uncle’s home at any time to see for itself.
[86] With respect to lack of parenting skills, the mother will only be parenting in an assistant capacity. The uncle will remain the primary caregiver. He will undoubtedly benefit from the mother’s help in keeping the home neat, clean, tidy and free from infestation. Moreover, the mother’s presence in the home will address, to some degree, the Housing Authority, which the society is claiming is making the housing “precarious”. She cannot move back into the home full time. I propose that she will be allowed in the home from 7:00 am to 8:00 pm daily and overnight for her choice of one day per week, such day to be advised to the society. She will not be allowed to be alone with the children with no other adult present in the home.
[87] These provisions for maternal access are not to merely accommodate the mother. It will get her back into the parenting role and hopefully, she will commit to it. I do admit that the society’s inability to obtain a finding that the children are in need of protection (with respect to allegations of the mother’s faults) for three years should not result in separation of the children from their mother for any longer than it already has. Perhaps this will spur the society to stop dragging its feet on this pivotal finding. Moreover, the society’s unjustified apprehension from the grandmother has already separated the twins from their family for well over a month, and this should not be countenanced by this court. The main thrust of the temporary care and custody plan, however, is to re-unite these children in a home with which they are familiar, in a their own birth family environment, and with adequacy of care and that any risks of harm will be attenuated. It is also to get C. into the hands of the society so that it can take meaningful steps to help with his problems.
[88] C. has legal representation. No claim nor any submissions have been made for his access to any of his mother, his grandmother, his uncle or his siblings. These are clearly persons of importance in his world. However, this court makes no order this day, but is open to entertaining submissions on C.’s contact with any of the foregoing persons. In the meantime, the society, as his temporary caregiver and custodian will have to decide. C. will not live in the home until further evidence satisfies this court that it is not only in his best interests, but also in the best interests of his siblings, that he do so.
[89] I remind the parties that these are merely my Reasons and are not my order on this Motion to Vary temporary care and custody. This motion and the application have both been adjourned to Oct 18, 2021 and the intervening time should give the parties sufficient time to inwardly digest these Reasons and the prospective order.
Released: September 20, 2021
Signed: “Justice John Kukurin”
[^1]: S.82 (1) A child protection worker may bring a child who is 16 or 17 and who is subject to a temporary or final supervision order to a place of safety if the child consents.
[^2]: O. Reg 155/18 s.29 A person entering a premises under subsection 81 (11) or 86 (3) of the Act shall produce identification, including evidence of appointment or authorization, as the case may be, on request of the occupier.”
[^3]: 2000 SCC 48, [2000] S.C.J. No. 48; [2000] A.C.S. no 48; 2000 SCC 48; [2000] 2 S.C.R. 519; [2000] 2 R.C.S. 519; 191 D.L.R. (4th) 1; 230 W.A.C. 161; 260 N.R. 203; [2001] 1 W.W.R. 1; J.E. 2000-1923; 150 Man.R. (2d) 161; 78 C.R.R. (2d) 1; 10 R.F.L. (5th) 122; 2000 CarswellMan 469; 100 A.C.W.S. (3d) 77
[^4]: The all too prevalent and proliferating practice of apprehending without warrant blaming the lack of readily available Justices of the Peace as the reason for doing so is the thin edge of a wedge that has made warrantless apprehensions the norm, and apprehensions with a prior warrant the exception. The systemic failure of the Province of Ontario should never be justification for an apprehension without warrant. In fact, the Algoma society is not alone in this practice. It seems to be a widespread practice in the north. In addition, the court should not simply take the word of a society worker that Justices of the Peace are unavailable. Elliot Lake is less than three hours from Sault Ste. Marie (which has several Justices of the Peace) and is also the headquarters of this society. In addition, there is a tele-warrant system that has been available in Ontario for about a decade that deals only with criminal warrants. Justice Arbour, in her decision in K.L.W. refers to the telewarrant as a measure that would address the imminent “emergency” situation [at paragraph 39]
“39 In any event, the risk of a non-emergency situation escalating into an emergency where the child's life and health are in immediate danger, and which could be exacerbated by the delay involved in obtaining a warrant for apprehension, can be addressed by measures providing for "tele-warrants", which are applied for by telephone on information sworn under oath, such as already exist in some provinces.”
With the court’s adjustments to it procedures prompted by the current pandemic, there is even less reason to rely on lack of Justices of the Peace as a reason to apprehend without a warrant. The telewarrant system need not even be used. A society can simply send documents remotely to a Justice of the Peace anywhere in Ontario asking for the issue of a warrant.