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.

ONTARIO COURT OF JUSTICE

DATE: 2021·12·13 Elliot Lake COURT FILE No: 51/21

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA, Applicant,

— AND —

K.M. D.L. Respondents.

Before: Justice John Kukurin

Heard on: Nov. 29, 2021 Reasons for Judgment released on: Dec 13, 2021

Counsel: Mr. Anthony Marrato............................................................. counsel for the applicant society Mr. Douglas Kearns …………………………………. counsel for the respondent mother, K.M. No one for the respondent father ………………………………………………………….……..D.L.

KUKURIN J.

[1] The matter before this court is a first court date for a child protection application involving three children. Contemporaneous with this application is a motion of the society in which it seeks an order for temporary care and custody of the children to their mother, subject to a supervision order by the society, and subject to a number of conditions.

[2] This decision is concerned with procedural fairness.

[3] I identified the children pursuant to s.90(2) of the Child, Youth and Family Services Act (CYFSA). I made an order for temporary care and custody in favour of the mother. However, I made that order under s.94(2)(a) and not under s.94(2)(b) as sought by the society. The society requested Reasons and these are those Reasons. [1]

Categories of Child Protection Applications:

[4] Child protection applications fall under two main categories. The first is where the society removes a child from whoever had charge of the child, and places that child in a ‘place of safety’. The second is where the society does not remove the child from the person who had charge, but leaves the child with that person.

[5] The first category is now referred to as a removal application and leads to what is described as a ‘removal hearing”. Until the most recent amendments to the CYFSA in 2018, it was referred to as an “apprehension hearing” or occasionally as a “five day hearing”

[6] The second category is now called a non-removal application. It leads to a “non-removal hearing”. In some court locations, these applications are referred to as “direct applications”

[7] Both categories of applications seek orders for temporary care and custody. I refer for uniformity of reference to the former as a ‘removal application’ and to the latter as a ‘non-removal application’.

The Removal Application

[8] The CYFSA allows a society to remove a child from the person who had charge prior to the removal. This is an extraordinary power, and so the CYFSA sets pre-requisites for such removal. Setting aside whether the society meets these pre-requisites or not, the CYFSA then imposes post-removal requirements on a society. The most explicit one is to bring the matter before the court within five days. [2]

S.88 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);

(b) the child shall be returned to the person who last had charge of the child or, where there is an order for the child’s custody that is enforceable in Ontario, to the person entitled to custody under the order;

[9] If this 5 day limitation is not met, the court loses jurisdiction and the society has no choice but to return the child to whoever had the child prior to the child’s removal. It is, therefore, a big deal. The time constraints imposed by this section of the CYFSA do not only impact the society, but also the persons from whom the child was removed.

[10] The society arguably has the advantage in these removal applications. It physically has the chid that it has removed for up to five days, unimpeded by any statutory requirement. It can use these five days to prepare its application and its motion to bring the matter before the court. And it does, sometimes producing an affidavit in support of its motion that stretches to 300 paragraphs or more [3] . In fairness, societies will sometimes have their materials ready to go before the 5 days are up. They generally manage to serve at least one respondent within these five days and often on the first court day.

[11] The respondents, in the meantime, are at a disadvantage. They have just had their child removed. Sometimes they know why; oftentimes they do not. They often have no lawyer. They rarely have the means to pay a lawyer and thus are left to apply for legal aid. Legal Aid Ontario seems to grant certificates to respondents in child protection matters in priority to many other matters, but it has a process that sometimes takes a week or two. If granted a legal aid certificate, the respondent still has to find a lawyer who will agree to be that person’s counsel in the case. Although a lawyer may be retained, he or she still has to respond to the society’s materials. Often these have not yet even been served on the respondent/client or have just been served. Most lawyers have their days booked weeks and even months in advance, and don’t have the time flexibility to prepare any response even if the society’s materials are available. The average lawyer also does not have the support staff that a society has to deal with the early stages of a child protection case. Dominating this entire period of (up to) five days is the emotional state of most respondents who are likely just spinning their wheels doing everything wrong and nothing right to advance their side of the case in the court.

[12] On the 5-day court appearance, the society invariably asks for an order granting temporary care and custody to someone other than the person from whom the child was removed. Occasionally, it has not even served the respondent(s) by the time the matter is brought to court. The materials before the court are only those filed by the society. [4] The court is also handicapped at the removal hearing if the only materials before it are the society’s pleadings and the society’s evidence. It is more often than not dealing with a matter that is truly ex parte, or is on such short notice that it is tantamount to being ex parte. The gatekeeping function of the court is rarely utilized at this stage and is further attenuated by s. s.94(10):

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.

This almost guarantees that whatever the society places before the court will be accepted as uncontradicted truth that will enable the court to make an order.

[13] As for the order the court can make, it has a choice of four. It cannot make no order as it will lose jurisdiction if it does so. The court will clearly be adjourning the society’s application and its motion to a future date. The court has no choice but to make an order for temporary care and custody of the child:

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

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

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

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

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

[14] A respondent can try to argue that the order sought by the society at the removal hearing is not the correct one to make. However, any such argument is hampered by the fact of lack of evidence from the respondent. It is possible, but rare, that a judge will be convinced to grant other than what is sought by the society at this point. At most, the order will be made “without prejudice”. What that means is better left to a judicial interpretation other than in the present Reasons.

[15] In summary, the removal hearing procedure is not a good one for anyone. It is not good for the society. It is not good for the respondent(s). It is not good for the lawyers involved in the proceeding. And it is not good for the court. But it is the only one that is provided for in the legislation and in the Rules of the court.

The Non Removal Application

[16] This is an application that does not follow a removal of a child from its caregiver. It nevertheless shares many of the features of the removal application. One of these is that the society asks for a temporary care and custody order.

[17] Mentioned in paragraph [1] above was the society’s motion for temporary care and custody (abbreviated to ‘TC&C’ hereafter). This invariably accompanies the application, as the application does not seek a ‘temporary’ order, but rather it seeks final orders. It is the society’s motion that seeks the TC&C order. [5]

Factual Circumstances in This Proceeding

[18] It is here that the procedural problem in the present case surfaces. It is a simple yet a complicated problem. The society that initiates a non removal child protection application obtains a first court date for that application from the clerk of the court. It also has its accompanying motion for a TC&C order which invariably has the same first court date as its application. For such applications (or motions) there is no statutory requirement that the society bring the matter before the court within five days of any event. [6]

[19] Assigning the first court date for a non removal application is an administrative task of the clerk of the court under Rule 8(4)

Rule 8(4) When an application is filed, the clerk shall,

(a) set a court date, except as provided by subrule 39 (7) (case management, standard track) and subrule 41 (4) (case management, clerk’s role); and

(b) seal the application with the court seal. O. Reg. 114/99, r. 8 (4) ; O. Reg. 89/04, s. 2.

[20] What training instructions are given to court clerks is not known to this court. Equally unknown to this court is what conversation passes between the court clerk who assigns the first court date and the person who attends for the society to have the application issued and filed. [7] Court clerks do not have reasons for whatever decisions they make recorded in the court file.

[21] In any event, in the present case, the application is dated Nov 25, 2021, the application was filed Nov 25, 2021, the society’s motion for TC&C is dated Nov 25, 2021 and it was filed on Nov 25, 2021. The first court date on both the application and the motion was Nov 29, 2021.

[22] The obvious question is why a non removal child protection application is returnable in court within four days of when it is dated and filed with the court.

[23] An application in a domestic family matter (Form 8) as well as an application in a child protection matter (Form 8B) have pre-printed portions that advise the recipient that he or she has thirty days after service within which to file an Answer. This is in keeping with Rule 10(1):

Rule 10 (1) A person against whom an application is made shall serve an answer (Form 10, 33B, 33B.1 or 33B.2) on every other party and file it within 30 days after being served with the application. O. Reg. 114/99, r. 10 (1) ; O. Reg. 91/03, s. 2; O. Reg. 519/06, s. 4

[24] With respect to a motion within a proceeding, which includes a TC&C motion in a child protection proceeding, the pre-printed portion of the Notice of Motion form advises the recipient that he or she must prepare his or her own affidavit, serve it on all other parties, and file it at the court office “ not later than 4 days before the date above ” [ie the date that the motion will be before the court]. This means that the recipient of the motion will have to have been served at least four days before such date.

[25] In actual fact, the service time and filing time for a TC&C motion is spelled out in Rule 14(11)(a)

Rule 14 (11) A party making a motion with notice shall,

(a) serve the documents mentioned in subrule (9) or (10) on all other parties, not later than six days before the motion date ;

(b) file the documents as soon as possible after service, but not later than four days before the motion date;

[26] So the proper notice time for a TC&C motion is six (6) days and the latest that it can be filed with the court is four (4) days before the motion date.

[27] Clearly the society did not comply with either requirement with respect to its TC&C motion. The court does not know when it actually served its application and motion as no affidavits of service had been provided to the court by their return date. It is a reasonable inference that they were both served since both the mother and her counsel were present. It is an equally reasonable inference that any service on the mother was effected between Nov 25 and Nov 29. Neither the application nor the motion existed before Nov 25, 2021. Whatever the date, the society was late in both serving and filing its motion for TC&C. Moreover, it did not allow the mother 30 days notice of its application.

[28] That is not fatal to either the application or to the motion. The application could have been dismissed for lack of adequate notice. However, this would have been an uncalled for response, not commensurate with the lack of proper notice time. Better to simply adjourn it to let the 30 day period to file an Answer to elapse. That way, the unfairness to the mother would be removed and she would have the time that any other litigant has to respond to an application. There is a catch, however. That catch is that a child protection application cannot simply be adjourned. If it is adjourned, the court must make a temporary care and custody order.

[29] That is not the only catch. The society asked as a claim in its application for “ an abridgement of time for service of the application ”. From the temporal facts in this case, the inference that this court makes is that the society wants the court to collapse the service time on the mother from 30 days down to 4 days. There is authority for lengthening or shortening any times set out in the Rules.

Rule 3 (5) The court may make an order to lengthen or shorten any time set out in these rules or an order, except that it may lengthen a time set out in subrule 33 (1) (timetable for child protection cases) only if the best interests of the child require it. O. Reg. 114/99, r. 3 (5) .

[30] What reason there is to justify such a drastic reduction of time was nowhere set out in the evidence nor in the submissions of the society. I am not inclined to grant an abridgement that essentially takes away a litigant’s legal, and critical, rights to respond to an application, and, in this case, would preclude any response by the first court date.

[31] The motion for TC&C has a more shortened required notice time than has the application. It is six days. The first court date was Nov 29, 2021. This was a Monday. Six days before Nov 29, 2021 would be Nov 22, 2021. However, a weekend falls within those six days. Under Rule 3(2) the weekend days do not count as part of the six days:

Rule 3 (2) If a rule or order provides a period of less than seven days for something to be done, Saturdays, Sundays and other days when all court offices are closed do not count as part of the period. O. Reg. 114/99, r. 3 (2) .

[32] For a motion to be properly before the court on Monday Nov 29, 2021, the motion would have to be served by no later than Nov 19, 2021 as the two weekend between these days do not count. It is clear that the society did not serve anything as early as Nov 19, 2021 as all of its materials were only created on Nov 25, 2021.

[33] The motion had a claim for “dispensing with service or, in the alternative, for late service of this Motion”. The court has the power to do this as the notice time for a motion is set out in the Family Law Rules:

Rule 3 (5) The court may make an order to lengthen or shorten any time set out in these rules or an order, except that it may lengthen a time set out in subrule 33 (1) (timetable for child protection cases) only if the best interests of the child require it. O. Reg. 114/99, r. 3 (5) .

[34] Why would this court shorten the time for service of the TC&C motion in this case at all? This was not argued by the society except to ask if the court had read the society’s allegations in its affidavit. In fact, the court had done so.

[35] A somewhat abbreviated version of the society’s evidence indicates that the society became involved with the mother in December 2013. Its involvement was prompted by her pregnancy of her first child by the father with whom she was having a relationship. Apparently, the father had a history with a previous partner, impregnating her four times, and raising child protection concerns relating to their drug use, adult conflict and domestic violence. The four children were apprehended but ultimately returned to their mother. The father has only supervised access to them. The father reportedly had another child with another woman about whom little is known. It is the father about whom the society had its major concerns in the present application.

[36] That did not mean that the mother was not a source of protection concern. For the almost eight years since 2013, the society has been involved with the mother fairly regularly and she has had three children who the society believes were fathered by the respondent father in this case. The society paints a picture of a mother who is deliberately hiding the true picture of her relationship with the father which persists to today. It describes her as misleading, dissembling, untruthful, unco-operative and unwilling to follow society recommendations. The society’s evidence indicates that the mother even contacted a lawyer to write the society to demand that its worker stop harassing her, that she will not allow the society into her home, that she will not meet with society workers, nor speak to them on the phone. The mother oldest child apparently has cancer and the mother is under some stress arising from that situation.

[37] On the other hand, the society has seen the mother’s home in disarray and potentially creating a risk of harm to the children. It has even provided photos to prove this. It has an anonymous report of someone who reported hearing yelling from the home, between the mother and the father about “drug abuse concerns”, and some yelling directed at the children. But the children have been reported over the years to have presented as healthy, to be having their needs met, to be clean with no concerns. Third party service providers have given positive descriptions of the mother, one reporting that she was resourceful, intelligent, a pleasure to work with and engaged in programing, another that the mother is an exceptional, intelligent young woman, doing a phenomenal job and engaging 100% in the Healthy Babies program. The mother also underwent a substance abuse assessment that resulted in no need for any follow up. This information all comes from the society’s evidence.

[38] Clearly there is a disparity in what other professionals in the community working with the mother are reporting, and what the society workers are reporting with respect to the mother. From a child protection point of view, the children seem to be parented by their mother adequately.

[39] The issue for this court is what to do when a society is using Rules in such a way as to deprive a respondent of the time that those same Rules allow a respondent to answer the society. The Rules are not black and white. There is an element of judicial discretion specifically built into some rules that allow the court to redress any unfairness.

[40] To be more explicit, the court has to balance several factors. One is allowing the society to do what it was created to do, a good portion of which is investigation by its workers where circumstances warrant. The other is not permitting interference with families where circumstances don’t warrant such interventions. Overshadowing such competing interests is the paramount consideration of promoting the best interests, protection and well being of a child. In the context of the procedural aspects of a child protection case, the prime direction to the court is to act justly. Acting justly includes ensuring that the procedure is fair to all parties.

Rule 2 (2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2) .

Rule 2 (3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

[41] I am of the view that the procedure used by the society is unfair to the mother. It deprives her of the time that the Rules allow her to respond to the society’s application and its motion. The result is tantamount to ex parte proceedings on the first court date. The proper use of the Rules would not permit the circumstances that resulted in this case. The society’s reliance on judicial discretion to shorten times should not be automatically granted despite what may have become customary. In this case, the factual allegations do not persuade the court to shorten any times. There is no pressing concerns about the children. This is more a society and a mother not seeing eye to eye.

[42] Of some significant importance is the claim made by the society in its motion and in its application. These request the same relief - verbatim. The only difference is the duration of that relief. In short, if the society was granted what it sought in its motion, it would get exactly what it seeks in its application. This would grant, on an essentially ex parte basis, what the society has the onus to establish with admissible evidence after a trial. It flies in the face of well established and fundamental principle expressed in the legal maxim “audi alteram partem” [8]

The Adjournment Problem

[43] While the motion can be adjourned, the application must have a TC&C order made if the application is adjourned. The choices are not fourfold; they are two fold.

[44] The society implicitly concedes that circumstances are not such that it can meet the requirements of s.94(4) that would lead to a removal order. This leaves only a non removal order. The two choices among non-removal orders are set out in clauses (a) and (b) of s.94(2):

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

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

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

[45] There is no test for choosing between (a) and (b) orders. In the present case, I choose an order under clause (a). The exigencies of the situation are not such that they dictate the making of a supervision order, especially when the society has been in the mother’s life for most of eight years, and when it has not now chosen to remove the children from her care.

[46] I choose (a) because the requirement to be fair overrides the need to give to the society the supervision order it seeks.

[47] I choose (a) because this choice is not a long term choice. It may end on the next court date when the court will hopefully have both sides of the story and can make a more informed decision on the motion. In any event, it is not detracting from any rights that the society had before it started its application and brought its motion. Nor is it giving to the mother any rights she did not have before the society’s application was started. It basically is setting the status quo as the current circumstances until such time as the mother has responded.

[48] Finally, I choose (a) because the society has forced this choice on the court by making its application returnable within 4 days after service on the mother, rather than after 30 days following service upon her, which in my view, should be the default position in non removal child protection cases.

Released: December 13, 2021 Signed: “Justice John Kukurin”

Endnotes

[1] The giving of reasons for a decision made under Part V of the CYFSA is a requirement under s.97(1)(d). It is often ignored or overlooked by the court. This is particularly so on a first court appearance of a child protection application where typically, a temporary care and custody order is made “without prejudice’. An access order made at that time is also an order made under Part V. Often reasons why an access order is made is entirely ignored. Societies nowadays bring the order they seek in advance of the hearing and judges quite often give it their imprimatur. Reasons need not be extensive or written, but they must be reasoned.

[2] Hence the not uncommon reference to the 5-day hearing.

[3] In the present case, for example, the society’s affidavit was 104 paragraphs long, but many paragraphs had subparagraphs, fully thirty one of them, and some subparagraphs lettered from (a) to (q)

[4] Anecdotally, in 25 plus years as an OCJ judge, the writer has only twice had a 5-day hearing where a respondent has actually filed anything with the court. One was following an abandoned apprehension where society materials were available and served, and the same materials were used after a subsequent removal. The other was where a removal hearing was returnable two days after the removal, and the court granted an adjournment for two more days to allow the respondent(s) to file responding material before resuming the hearing.

[5] Rule 14. (1) A person who wants any of the following may make a motion:

1. A temporary order for a claim made in an application.

[6] To be more precise, the five day limit to having a child protection “matter” before the court begins when the child is bought to a place of safety, not from when a child is removed from the person who had charge. Practically speaking, these are one and the same in most cases.

[7] One has to wonder whether court clerks read the child protection application placed before them for the assignment of a court date to determine if the application is a removal or a non removal application. The writer inclines to the belief that they don’t. Court clerks should not have to read through 104 paragraphs of evidence many with multiple lettered subparagraphs (as in this case) to determine if a case is a non removal case. This is information that should be provided by the society when it requests a court date.

[8] Audi alteram partem (or audiatur et altera pars) is a Latin phrase meaning "listen to the other side", or "let the other side be heard as well". It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. "Audi alteram partem" is considered to be a principle of fundamental justice. [from Wikipedia, the Internet]