Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 07 20 COURT FILE No.: CENTRAL WEST 0211-22-000275-00

BETWEEN:

Child and Family Services of Grand Erie

— AND —

S.S. and R.B.

Before: Justice of the Peace Sarah Keesmaat

Heard on: July 15, 2022 Oral Reasons for Judgment released on: July 15, 2022 Written Reasons for Judgment released on: July 20, 2022

Warrant to Bring a Child to a Place of Safety

Application Brought by: Child and Family Services of Grand Erie Counsel/Worker for the Children’s Aid Society of Toronto: Andrea Thomas (worker) Children Who the Society Seeks to Apprehend: H.B., E.B., N.B., and S.B. Parents/Guardians of Children to be Apprehended From: S.S. and R.B. (children in the custody of S.S.)

JUSTICE OF THE PEACE S. KEESMAAT:

[1] The court considered an application on July 15, 2022, under section 81(2) of Child Youth and Family Services Act (“CYFSA”) to remove four children from the care of their mother, S.S. The four children include: one infant, two-year-old twins and a four-year-old child, who all live with mother. The father, R.B., is incarcerated and is currently on conditions not to have contact with the mother. The court, specifically, the same judicial officer, considered the same application for the removal of these four children on June 24, 2022, and denied the application, providing the following reasons: “Insufficient reasoning as to why alternatives to intervention cannot be sought in order to address concerns. Children appear to have many supports in place, which all may be lost if they are apprehended. Although, risk is there, it does not appear to be imminent, nor does it suggest that apprehension is the only way left to address it.”

[2] Upon consideration of the most recent application, the Society again did not meet the legal test to establish: 1) why the children were at imminent risk deeming them in need of protection, 2) whether there was a less restrictive course of action, or 3) whether there was an alternative other than society care as required under section 81(2)(b) and 81(2)(c) of the CYFSA. The reasons for denial were communicated orally to the author of the affidavit, who was also the assigned worker on Friday, July 15, 2022. The worker was informed that a written decision would also be provided as there were several items, aside from reasons for denying the warrant that the court wished to touch on. The court did not feel it appropriate to make the society wait for determination of their application until a written decision was completed as to provide time to the Society to prepare a different approach to address or further investigate risk.

Almost Identical Affidavit Submitted

[3] The July 14, 2022, application was denied for much the same reasons as it was denied on June 24, 2022. In fact, the affidavit submitted on June 24, 2022, and the one submitted on July 14, 2022, were practically identical from paragraphs 1-67. The only additional information included in the July 14, 2022, affidavit was that the family was no longer working with a community support (Safe Families) which offered respite services to the twins. In addition, appendices were attached; one of historical supervision order regarding S.S. and R.B.’s oldest child, and the other being medical records from McMaster’s Children’s Hospital regarding injuries that their infant sustained in June 2022. The general information of both documents were referred to in the June 24, 2022 affidavit.

[4] As directed under the CYFSA, a court must consider warrants to apprehend children (bring to a place of safety) under section 81(2). As laid out in the following, the evidence provided to the court must adhere to all three: a) a child must be under the age of 16 years, b) must be in need of protection and c) less restrictive course of action is not available or will not protect the child adequately. The affidavit on both occasions suggested that the children were in need of protection under section 74(2)(a)(i), 74(2)(b)(i), 74(2)(b)(ii), 74(2)(b)(h).

Little to No New Information Provided and Application Denied

[5] For the July 14, 2022, application, the court did request that the worker attend the Intake Court on July 15, 2022 to provide additional information verbally, under oath, to support their application. The court met with the worker, who ultimately, was not able to provide any additional information to support their application, leaving the court to deny the application based on the following reasons:

a) There has been no follow up with McMaster Children’s Hospital on behalf of the Society about the status of the infant and their injury. There has also been no report to the Society that the mother has not followed with on-going appointments with McMaster Children’s Hospital.

b) The McMaster Children’s Hospital documents attached to this affidavit did not provide any substantially new information that was not already provided in the June 24, 2022 affidavit which outlined the infant’s injuries, stable condition and instructions given to S.S. upon the infant’s discharge from hospital.

c) There is new information that S.S. is no longer receiving services from Safe Families, however, there is no evidence nor information to outline how that then leaves the children in need of protection, rather a hanging suspicion that it might.

d) There is no update within the material about the status of R.B.’s incarceration, therefore no information to suggest that S.S. is or can allow access.

e) There is no information about how the maternal and paternal grandmothers, who were part of a documented safety plan, are able to provide on-going support or potentially fill the gap of Safe Families. The worker identified that because S.S. did not provide consent to speak to either grandmother, they cannot explore that option. That is unfortunate as it would appear from safety planning that both grandmothers are sources of support to S.S. and the children. Their support is also reflected in the historical supervision order.

Parent’s Right to No Longer Work with Society

[6] It would appear through the course of both affidavits that S.S. is not willing to work on an ongoing basis with the Society, which, in fairness to the Society, can offer much difficulty in assessing risk. However, it is important to note that S.S. did cooperate, although reluctantly, with the Society during the initial investigation which resulted from her bringing her infant child to the hospital with an unexplained injury. S.S.’s unwillingness to work with the Society on an ongoing basis is not in and of itself enough to determine that the children are in need of protection which warrants apprehension. In fact, it is her right to refuse involvement and it is the Society’s obligation to establish to a court why their involvement is necessary either through supervision or apprehension. It is clear through the Society’s own affidavit materials that S.S. required a court order to be supervised by the Society in the past.

[7] In addition, it should be acknowledged that S.S. may have received legal advice or instruction to not participate in ongoing involvement from the Society. The possibility of this can be concluded by paragraph 76 of the Society’s July 14, 2022, affidavit:

“Ms. [S] informed me that she is not agreeing for services, not doing any ongoing plan, she is not working with the agency, she does not want to and does not have to, and there is no legal agreement that she has to work with the agency.”

[8] Although the court should consider apprehension applications in a conjunctive or cumulative manner, the court is cautious in adding the mother’s unwillingness to work with the Society, in an accumulation of facts. Furthermore, as stated, it is the Society’s obligation to establish grounds for intervention. Failing to distinguish these two factors, places any parent who wishes to invoke their right to not participate in services, to potentially subjecting their children to removal from their care. Parents feeling forced to engage in services with the Society in fear that their children will be removed would go against the definition of voluntary involvement.

Full and Fair Disclosure

[9] The court was concerned the Society did not mention in their most recent application that their June 24, 2022 application had been denied and for what reason(s). The court should have a reasonable expectation that the Society has provided full and fair disclosure upon all applications. It needs to be appreciated that although this application is at a warrant phase, and not before a Family Court Justice, this is still a court with the same expectations of fair and full disclosure. This expectation is laid out in the 2009 case of Children’s Aid Society of Hamilton v. O. (E.), 2009 Carswell Ont 8125, [2009] O.J. No. 5534, specifically, at paragraph 21:

“The disclosure obligation is comparable to that of Crown counsel in criminal proceedings, as set out in R. v. Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.). The obligation includes all information gained in the course of an investigation and involvement with the family: see for example, Children’s Aid Society of Cape Breton-Victoria v. M. (L.), [2007] N.S.J. No. 349 (N.S. S.C.); and K. (S.D.) v. Alberta (Director of Child Welfare), 2002 ABQB 61, [2002] A.J. No. 70 (Alta. Q.B.)”.

And further at paragraph 22,

“Disclosure does not simply involve delivery of case notes to parents’ counsel. The duty extends to disclosure to the court. After all, the Society and the court are guided by the paramount purpose in the C.F.S.A. The Society, as with Crown counsel in a criminal case, is not to focus on winning the case, but, rather, to seek a determination that is in the best interests of the child. Further, the court has the responsibility of making that determination and is not to simply “rubber stamp” decisions of the Society.”

Without a sincere application and full and fair disclosure, the best interests of the child, and whether they are in need of protection, cannot be properly weighed on a balance of probabilities by the court of this jurisdiction. This court by no means suggests that the Society was withholding that information intentionally, but believes, it is a practice that is unfortunately common when Societies are seeking warrants to apprehend children where they were denied in the past.

Mere Suspicion is Not Enough

[10] Further, “Mere suspicion on the part of the worker that a child is in need of protection is not sufficient. A suspicion must be supported by disclosure of the cause of the suspicion before the justice of the peace can be satisfied that reasonable and probable grounds exist for believing that a child is in need of protection: Children’s Aid Society of the Niagara Region v. B.(C.), [2005] O.J. No. 3878 (S.C.J.), at para. 73. The justice of the peace must rely on more than the mere conclusions of the worker seeking the warrant. It is not enough that the worker swears that s/he has reasonable and probable grounds for believing that a child is in need of protection; there must be facts given on oath from which the justice of the peace can be judicially satisfied that such grounds exist: Children’s Aid Society of the Niagara Region v. B.(C.), [2005] O.J. No. 3878 (S.C.J.), at para. 72. This case is considered in that, the court received little to no additional information from the June 24, 2022, application to the July 14, 2022 application to set out why these children were in need of protection that warranted their removal from their mother’s care but rather mere suspicion that the children were in need of protection based on historical involvement with the Society, no longer working with Safe Families and an unexplained injury to the infant.

Res Judicata at Play

[11] The court’s concerns extend further to the potential of another issue that could transpire from failing to provide full and fair disclosure. Failing to do so could result in a subtle or intentional practice of res judicata on behalf of the Society. When considering res judicata in these proceedings, the court believes this application proceeded dangerously close to its definition. Specifically, in the case of Maynard v. Maynard, 1950 Carswell Ont. 128 (Supreme Court of Canada):

32 The following passage from the judgment of Maugham J., as he then was, in Green v. Weatherill [1929] 2 Ch. 213 at 221, 222, seems to me to state concisely the principles which are applicable:

the plea of res judicata is not a technical doctrine, but a fundamental doctrine based on the view that there must be an end to litigation: see In re May; Badar Bee v. Habib Merican Noordin. In the latter case it may be observed that Lord Macnaghten in delivering the judgment cites from the Digest and relies on the maxim “Exceptio rei judicatae obstat quotiens eadem quaestio inter easdem personas revocatur.” In the leading case of Henderson v. Henderson, there is to be found the following statement of the law by Wigram V.C.: “I believe I state the rule of the Court correctly when I say that where a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.” This passage has recently been approved by the Privy Council in the case of Hoystead v. Commissioner of Taxation, [1926] A.C. 155 170.

33 In the judgment of the Judicial Committee in Hoystead v. Commissioner of Taxation, at page 165 is the following:

Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances.

If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle.

[12] In comparing both affidavits, both applications appear to outline the same concerns, just presented differently by way of the second application including documents that offer a more detailed presentation of the same information as outlined in the June 24, 2022, affidavit. Perhaps at the time of the June 24, 2022, affidavit, the supervision order document and McMaster Children’s Hospital medical report were not available, however, reference to both were included. As indicated above in the Maynard v. Maynard case, the obligation is on the applicant to offer “reasonable diligence” in providing information at the time of consideration. Instead, the Society chose to produce these documents on a subsequent application where the facts to which they relied on had already received judicial decision, including reference to what was included in those documents. Specifically considering the supervision order document, the Society made casual reference to it on June 24, 2022 affidavit, but referred in great detail about the same document in the second affidavit.

[13] The society must be held to its obligation to provide full and fair disclosure, specifically of previously denied applications, and must respect that should a court deny their application to apprehend, substantially new events or evidence must be presented on subsequent applications along with information about previously denied applications or appeal the decision. If the Society fails to do this, they run the risk of res judicata practices, specifically continuing to litigate the same issue hoping for a different outcome.

[14] It was made clear to the Society on both denials that the court is not dismissing the presence of concern. What falls short is how that risk is sufficiently imminent to the point of the children being in need of protection and if alternatives other than Society care are available or were explored.

Best Interests of the Child

[15] Much like where a justice of the peace is required to consider the underlying principles of Youth Criminal Justice Act matters under section 3, a justice of the peace should also consider the best interests of the child as laid out in section 74(3) of the CYFSA when considering warrants to apprehend children:

Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

Conclusion

[16] In closing, both applications fell short of meeting the requirements under sections 81(2)(b) and 81(2)(c) and in addition when reflecting on the best interests of the children, specifically in this case, sections 74(3)(c)(vi), 74(3)(c)(vii) and 74(3)(c)(x), they were denied. Further, on future applications, the Society should provide full and fair disclosure, including if previous application about the same children were denied and why.

Released: July 20, 2022 Signed: Justice of the Peace Sarah Keesmaat