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: 2024 04 11 COURT FILE No.: Sudbury FO-24-00000052-0000
BETWEEN:
The Children’s Aid Society of the Districts of Sudbury and Manitoulin
Applicant,
— AND —
K.P., B.S., and T.J.
Respondents
Before: Justice G. Jenner
Heard on: March 21, 2024 Reasons for Judgment released on: April 11, 2024
Counsel: Patricia Marcuccio......................................................... counsel for the applicant society K.P. .............................................................................. assisted by duty counsel, Max Katz B.S. ............................................................................................................... on his own behalf T.J. .............................................................................. assisted by duty counsel, Max Katz
JENNER J.:
Part One: Introduction
[1] When a Children’s Aid Society exercises its authority to bring a child to a place of safety and seeks a child protection hearing before a court, s. 88 of the Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1 (“CYFSA”), requires that the matter be brought before a court “as soon as practicable, but in any event within five days”. When calculating the five-day upper limit, do weekends count?
[2] Not at issue presently is that weekends can impact the counting of days in one way: if a time limit, in this case the fifth day, expires on a Saturday or Sunday, then that time limit is extended to the next court business day. That extension occurs by operation of ss. 89(1) - (2) of the Legislation Act, 2006, SO 2006, c 21, Sch F. [1]
[3] The question in this case is whether Saturdays and Sundays ‘pause the clock’ at other times, when the expiration of the period occurs on a day that court is open.
[4] The Children’s Aid Society of the Districts of Sudbury and Manitoulin suggests that the clock is always paused on weekends; that Saturdays and Sundays are never counted as part of the five-day period. The society relies on r. 3(2) of the Family Law Rules, O Reg 114/99, which stipulates that “[i]f 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.” The society also relies on this court’s recent decision in Anishnaabe Abinoojii Family Services v. S.B.-M., 2024 ONCJ 89, which held that r. 3(2) applied to s. 88 of the CYFSA.
[5] For the reasons that follow, and with the greatest respect to my colleague, I am compelled to a different conclusion. I conclude that r. 3 of the Family Law Rules does not apply to periods of time prescribed by statute. It does not apply to the five-day rule set out in s. 88 of the CYFSA.
Part Two: Facts and Procedural History
[6] The respondents are the biological mother, the biological father, and the stepfather of a 15-year-old child. The child primarily resides with her mother and stepfather but visits her father on weekends when he is not working out of town.
[7] On March 14, 2024, the society brought the child to a place of safety. At that time the child was being discharged from a health care facility and none of the respondents were willing to accept her into their care. It was this abandonment which animated the society’s intervention.
[8] That same day, March 14, 2024, the society contacted the court to canvass a hearing date. Court staff responded that the matter would be added to the schedule on March 18, 2024. The society requested a later date, and the court was only able to offer March 21, 2024 as an alternative. The society opted for the latter date.
[9] For clarity, the following chart illustrates how those dates and events correspond with the days of the week.
| Thursday | March 14 | Day child brought to place of safety |
|---|---|---|
| Friday | March 15 | |
| Saturday | March 16 | |
| Sunday | March 17 | |
| Monday | March 18 | Date offered by court for hearing |
| Tuesday | March 19 | |
| Wednesday | March 20 | |
| Thursday | March 21 | Date accepted by applicant society |
[10] All three respondent parents were served with the society’s application and attended court on March 21, 2024. The respondent mother and the respondent stepfather were assisted by duty counsel. The respondent father was self-represented. The society sought a final order identifying the child pursuant to s. 90(2) of the CYFSA, and an order appointing the Office of the Children’s Lawyer to represent the child. All parties consented to those orders being made.
[11] The society further sought a temporary order placing the child in the interim care of the society. The respondent mother and respondent stepfather joined in the society’s request. The respondent father initially opposed the request, but then conveyed that while he wished to have the child placed in his care, he was not ready for that to happen immediately. He needed time to make arrangements, including with respect to his employment which often took him out of town. He ultimately consented to the society’s request on a temporary, without prejudice basis.
[12] Before issuing any of the requested orders, the court raised of its own accord the question of whether the society had brought the application before the court “within five days,” per s. 88 of the CYFSA. The society relied on r. 3(2) and Anishnaabe Abinoojii Family Services v. S.B.-M., arguing that Saturday and Sunday were not to be counted, such that they had brought the matter before the court on the fifth day. The respondent mother and the respondent stepfather joined that position. The respondent father did not advance argument on the issue.
[13] The court reserved its decision on the application of r. 3(2), but, given the exigencies and circumstances of the matter, and in the absence of any party’s request for the application to be dismissed, allowed the application to proceed. The court’s reasons for doing so are outlined in its endorsements of March 21 and March 22, 2024. The orders of the court were made without prejudice to any party’s standing to challenge jurisdiction or seek a dismissal at a future date, depending on the outcome of the court’s determination with respect to s. 88 and the ‘five-day rule’. [2]
Part Three: Legal Issue and Analysis
3.1 An issue of statutory interpretation
[14] The singular issue before the court is whether, in tabulating the five-day upper limit in s. 88 of the CYFSA, one counts Saturdays and Sundays where those days do not fall on the fifth day. That question turns on whether r. 3(2) of the Family Law Rules applies to s. 88 of the CYFSA.
[15] Rule 3(2) reads as follows:
COUNTING DAYS – SHORT PERIODS – 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.
[Emphasis added.]
[16] Section 88 of the CYFSA is clearly not an “order”. There is also no doubt that s. 88 provides a period of time for something to be done, and that the period of time is less than seven days. The issue therefore turns on the interpretation of the word “rule” within r. 3(2). If s. 88 of the CYFSA is a “rule” then Saturdays and Sundays are not counted. If s. 88 is not a “rule” then they are counted. [3]
[17] In its analysis, the court must be guided by the modern approach to statutory interpretation. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21.
[18] This approach applies equally to the interpretation of regulations and other forms of delegated legislation, though in the case of delegated legislation the instrument must be read together with its enabling legislation and related Acts: Ruth Sullivan, Statutory Interpretation, 3rd ed (Toronto: Irwin Law, 2016), at p. 9. The court must also be guided by s. 64 of the Legislation Act, 2006, which stipulates that that an Act or regulation “shall be interpreted as being remedial and shall be given such fair, large, and liberal interpretation as best ensures the attainment of its objects.”
3.2 A narrow, textual approach
[19] On an isolated, textual approach, one can see how s. 88 of the CYFSA could be construed as a “rule” for the purpose of applying r. 3(2). The term ‘rule’, in its ordinary sense, is broad enough to encompass prescriptions for conduct, regulations, and legal precepts or doctrines, including those found in a statute. [4] It is perhaps not the most natural way to describe a provision of legislation, especially with clearer terms like law, Act, or statute at hand, but is it a plausible descriptor.
[21] As r. 1(2) of the Family Law Rules stipulates that the Family Law Rules apply to, inter alia, proceedings under the part of the CYFSA containing s. 88, one can also see how, on a purely textual interpretation of ‘rule’, r. 3(2) might be engaged. Indeed, this is precisely the conclusion drawn by this court in Anishnaabe Abinoojii Family Services v. S.B.-M., at paras. 13-15, and advanced by the society in this case.
[22] However, even terms with ordinary meanings cannot be construed in isolation: Friends of Oldman River v. Canada, [1992] 1 S.C.R. 3, at para. 36. In my respectful view, the society’s proposed broad interpretation of ‘rule’ cannot survive a contextual reading of the provision, which must have mind to the scheme and objects of r. 3 generally, the Family Law Rules, the enabling statute, and s. 88 of the CYFSA.
3.3 A contextual approach
[23] In my view, the entire context demonstrates that the term ‘rule’ in r. 3(2) simply connotes ‘a rule of these Family Law Rules’. It does not have, and is not intended to have, a broader meaning which would capture any precept set out in any Act which gives rise to proceedings to which the Family Law Rules apply.
[24] This narrower interpretation of the term ‘rule’ is the only plausible reading that is supported by the immediate context: the scheme and object of r. 3. It is also the reading supported by the scheme and object of the Family Law Rules, and their enabling provisions within the Courts of Justice Act, R.S.O. 1990, c. C. 43.
3.3.1 The immediate context: the scheme of rule 3
[25] Rule 3(2) cannot be divorced from its immediate context, and must be considered in conjunction with the whole of r. 3, which reads as follows:
RULE 3: TIME
Time
Counting days
(1) In these rules or an order, the number of days between two events is counted as follows:
The first day is the day after the first event.
The last day is the day of the second event.
Counting days — short periods
(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).
Day when court offices closed
(3) If the last day of a period of time under these rules or an order falls on a day when court offices are closed, the period ends on the next day they are open.
Counting days — examples
(4) The following are examples of how time is counted under these rules:
- Notice of a motion must be served not later than six days before the motion date (see subrule 14 (11)). Saturday and Sunday are not counted, because the notice period is less than seven days (see subrule (2)). Service on the day set out in the left column below is in time for the motion to be heard on the day set out in the right column below.
- A respondent who is served with an application in Canada has 30 days to serve an answer (see subrule 10 (1)). A respondent who is served with an application on October 1 is in time if the answer is served on or before October 31. A respondent served on November 1 is in time if the answer is served on or before December 1.
- If the last day for doing something under these rules or an order is New Year’s Day, January 1, which is a day when court offices are closed, the time expires on January 2. If January 2 is a Saturday, Sunday or other day when court offices are closed, the time expires on January 3. If January 3 is a day when court offices are closed, the time expires on January 4.
Order to lengthen or shorten time
(5) The court may make an order to lengthen or shorten any time set out in these rules or in an order, subject to any limitations provided for by these rules.
Written consent to change time
(6) The parties may, by consent in writing, change any time set out in these rules, except that they may not change a time set out in,
Late documents refused by court office
(7) The staff at a court office shall refuse to accept a document that a person asks to file after,
(a) the time specified in these rules; or (b) the later time specified in a consent under subrule (6), a statute that applies to the case, or a court order. O. Reg. 544/99, s. 3 (2).
[Chart omitted. Underline emphasis added.]
[26] Several important points can be gleaned from the scheme of r. 3.
[27] First, subrule (2) is part of a greater scheme respecting the counting of days. The subrules work in concert to guide the parties and the court in the computation of time. To use the first example set out in the rule itself, in order to calculate the deadline to serve a notice of motion which must be served six days in advance of the hearing, a party must read and apply each of subrules (1), (2), and (3). They must determine which day to count first and which day to count last, consider whether the period is less or more than seven days, and consider whether the last day falls on day that court is closed. The party must also consider whether there has been an order made under subrule (5) or consent given under subrule (6), each of which has the potential to alter the calculation. The correct deadline cannot be ascertained without considering the potential cumulative effect of every subrule.
[28] Second, while r. 3(2) references “a rule”, in every other instance r. 3 employs the language “in these rules” or “under these rules”. Similarly, in the French version of the regulation, which is equally authoritative, [5] r. 3(2) uses the term “une règle”, while in every other instance r. 3 employs the language “les présentes règles” or “des présentes règles.” In my view, references to “these rules” or the French equivalent can only plausibly be interpreted to reference the set of rules in which the terms appear, the Family Law Rules. “These rules” neither means ‘those rules’ nor ‘any rules’ and cannot plausibly bear an interpretation that would include rules originating elsewhere, such as the CYFSA or any of the other Acts listed in r. 1(2). Rule 3’s operation as a coherent scheme of overlapping rules for calculating time, combined with its regular, though not universal, reference to “these rules” is strong evidence that the words “a rule” in subrule (2) stand in for ‘one of these rules’.
[29] This is reinforced by the direct connection between subrule (2) and subrule (4). Unlike the other subrules, subrule (4) does not introduce a precept or principle. It illustrates, through examples, the application of subrules (1)-(3). If subrule (2) was intended to capture time periods in the CYFSA and other statutes, it becomes difficult to explain why subrule (4) would introduce its guidance as “examples of how time is counted under these rules,” [Emphasis added.].
[30] What of the argument that subrule (2)’s use of different language is an intentional departure from the rest of the scheme? That subrule (2) and only subrule (2) was intended to apply to statutory rules? It is a principle of statutory interpretation that throughout an Act or regulation, the same words should be given the same meaning, and as a corollary, different words should be given a different meaning: see R. v. Zeolkowski, [1989] 1 S.C.R. 1378, at 1387; R. v. Frank, [1978] 1 S.C.R. 95, at 101. This is sometimes described in terms of a presumption of uniform expression: Sullivan, at p. 147. On this basis, should not the terms “a rule” and “these rules” be given different meanings?
[31] I would answer that proposed interpretation in three ways. First, I am not persuaded that the terms ‘rule’ and ‘these rules’ are sufficiently distinct to engage the presumption. Throughout the Family Law Rules, the complete set of family law rules is described as “these rules.” When a particular rule is being singled out, it is referred to by its number, or as “this rule.” Where past rules of the court are referred to, for transition purposes, they are referred to as “rules” (see for example r. 29(32)(b)). References to a singular, yet unspecified rule are rare (see rr. 11(4) and 19(10)). In my view, “a rule” is not a distinct term. It is simply the concise way in which the framers of the Family Law Rules have chosen to describe ‘one of these rules’ when referring to them generically, but in the singular form. The variation is not in terminology, but in syntax.
[32] Second, as discussed above, r. 3 presents a cohesive scheme for the computation of time. The subrules are designed to be read together, and it is difficult to conceive of a rational basis for a contrary intention. On what logic would the framers of the Family Law Rules see fit to apply subrule (2), and only subrule (2) to statutory time periods? I can discern none. Statutory time periods are no less in need of clarification as to the first and last day to be counted, or as to the implications of a deadline coinciding with a holiday or court closure. To be sure, the substance of subrules (1) and (3) mirrors ss. 89(1) - (3) of the Legislation Act, 2006, which already applies to statutes, and in that sense applying those subrules to statutes would be superfluous. But then the Legislation Act, 2006 applies equally to regulations and subrules (1) and (3) are already duplicative. [6] In my view, the framers of the Family Law Rules intended a scheme for the computation of time which incorporated and supplemented that found in the Legislation Act, 2006, but which applied only to the Family Law Rules themselves and to court orders. I find no evidence that they intended a menu of principles for the computation of time which could apply, à la carte, to different legal instruments based on their type.
[33] Third, the legislature, and by extension the framers of the Family Law Rules, can be assumed to be linguistically competent, with a command of legislative drafting and its conventions, and can be presumed to prefer clear, simple, and straightforward expression: Sullivan, at p. 42; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at para. 74. If subrule (2) was intended to apply to timelines set out in the CYFSA and other statutes, then clear language could have easily been employed to do so. Indeed, one need only look elsewhere in r. 3 for an example. Subrule (7) uses the more specific term of “statute” when it intends to refer to a rule concerning time set out in an Act. If subrule (2) was intended to apply to periods of time set out in a statute, then one would expect similar straightforward language to appear.
[34] For these reasons, to the extent that the presumption of uniform expression applies, I find that it is rebutted. The scheme of r. 3 provides powerful evidence that statutory timeframes are not contemplated by the provision.
3.3.2 Rule 1(2) does not extrapolate the application of r. 3(2) to statutory timelines
[35] A crucial foundation of the society’s position that r. 3(2) applies to timelines in the CYFSA is that by operation of r. 1(2), the Family Law Rules apply to cases in the Ontario Court of Justice under, inter alia, Part V of the CYFSA. In my view, this is based on a misreading of the function of r. 1(2).
[36] The Family Law Rules is a specific set of rules, but it is not the only set. The purpose of r. 1(2) is to clarify what type of proceedings that specific set applies to. It does so by identifying proceedings brought pursuant to the various Acts or common law remedies identified in r. 1(2) (a)-(f). In doing so it distinguishes those proceedings from proceedings governed by other distinct sets of rules; those applicable to provincial offences, criminal matters, or civil matters.
[37] Rule 3 of the Family Law Rules is a rule about interpreting that particular set of rules and orders made under it. The general statement in r. 1(2) that, as a set, the Family Law Rules apply to proceedings under certain Acts does not, however, incorporate the provisions of those Acts into the Family Law Rules. Specifically, the five-day requirement of s. 88 of the CYFSA is not transformed, by virtue of r. 1(2), into a rule of the Family Law Rules. Nothing in r. 1(2) supplants the analysis above, that r. 3, including subrule (2), is concerned with the computation of time for periods set out in the rules, and within orders, but not statutes.
[38] In fact, if r. 1(2) was interpreted to subject statutory timelines to r. 3(2), such an interpretation would extend beyond the purpose of the Family Law Rules and exceed the authority of the enabling provisions, as is explored further below.
3.3.3 The enabling legislation and the object of the Family Law Rules
[39] As a provision of delegated legislation, r. 3(2) must also be read in the context of its enabling legislation, the Courts of Justice Act, R.S.O. 1990, c. C. 43 (“CJA”). Section 68 of the CJA empowers the Family Rules Committee (the “Committee”) to make rules “in relation to the practice and procedure” of this court in relation to certain proceedings, subject to the approval of the Attorney General. Pursuant to s. 68(2) of the CJA, and by reference to s. 66(2), the Committee, “may make rules, even though they alter or conform to the substantive law, in relation to” a number of topics, including the following:
(a) conduct of proceedings in the courts;
(c) commencement of proceedings, representation of parties and service of process in or outside Ontario;
(j) motions and applications, including the hearing of motions and applications in the absence of the public and prohibiting a party from making motions without leave;
(x) any matter that is referred to in an Act as provided for by rules of court. R.S.O.
[40] An important limitation is placed on the Committee’s authority. Pursuant to s. 68(2), and by reference to s. 66(3),
[n]othing in the [enabling provisions] authorizes the making of rules that conflict with an Act, but rules may be made … supplementing the provisions of an Act in respect of practice and procedure.
[41] Consistent with the enabling provisions, the central purpose of the Family Law Rules is clearly stated and expanded on within r. 2(2) - (3):
Primary objective
(2) The primary objective is to enable the court to deal with cases justly.
Dealing with cases justly
(3) Dealing with cases justly includes;
(a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
[42] These objects, to provide of rules for practice and procedure which may supplement but not conflict with the applicable statutes, and to ensure fairness while promoting efficiency, are important considerations with respect to the interpretation of r. 3(2), and indeed r. 3 as a whole.
[43] In the court’s view, applying r. 3(2) to s. 88 of the CYFSA, as well as other statutory timeframes, would exceed these objectives. It would trespass on matters of real substance rather than the “court’s practice and procedure.” And it would conflict with, rather than supplement the Act.
[44] While s. 88 might, at a superficial level, appear to be a rule about procedure, it is something much more than a standard imposed for the fair and efficient conduct of court business, or as r. 2 of the Family Law Rules puts it, to “enable the court to deal with cases justly”. It fixes the maximum period that a child can be removed from a parent’s care without the child being returned, an agreement being formed, or a court’s supervision being engaged. It is unsurprising that the legislative heading for the section reads “TIME IN PLACE OF SAFETY LIMITED.”
[45] As the Supreme Court held in Winnipeg Child and Family Services v. W. (K.L.), 2000 SCC 48, [2000] S.C.J. No. 48, at para. 12,
While the infringement of a parent’s right to security of the person caused by the interim removal of his or her child through apprehension in situations of harm or risk of serious harm to the child does not require prior judicial authorization for the reasons outlined above, the seriousness of the interests at stake demands that the resulting disruption of the parent-child relationship be minimized as much as possible by a fair and prompt apprehension hearing. [7]
[46] Section 88 of the CYFSA represents a deliberate policy choice balancing a child protection agency’s need to intervene with the critical and constitutional interests of families. While it includes a time-limiting device, it is of a completely different order than rules prescribing time limits on the filing of documents, the bringing of an appeal, or the payment of court-ordered costs.
[47] To use the most extreme example of applying r. 3(2) to s. 88 of the CYFSA, in any year that Christmas Eve fell on a Wednesday, then for agency intervention that day, the five-day maximum period of time for a child to be removed from a parent without their agreement or court supervision would balloon to expire only on January 4 of the next year, some 12 calendar days later. I cannot conclude that such an outcome was contemplated or intended by either s. 68 of the CJA, or by the Family Rules Committee.
[48] This example is distinguishable from those considered in Children’s Aid Society of Toronto v. A.H., 2017 ONCJ 265, which examined the application of the computation of time provisions in the Legislation Act, 2006 to the five-day rule in the predecessor provision to s. 88 of the CYFSA.
[49] Unlike rules made under s. 68 of the CJA, the interpretation provisions of the Legislation Act, 2006 are not restricted in their application to matters of court practice and procedure. They apply broadly to the provincial statute book, subject to ss. 46 and 47 of the Act. While rules enacted under the CJA cannot conflict with statute, ss. 46 and 47 of the Legislation Act, 2006 explicitly stipulate that the Act applies unless a contrary intention appears, or the application would give to a term or provision a meaning that is inconsistent with the context. No contrary intention appears in the CYFSA, and I agree with the court in Children’s Aid Society of Toronto v. A.H., at para. 24, that the legislature, who can be presumed to operate with knowledge of the Legislation Act, 2006, could easily have stated such an intention clearly.
[50] Canvassing for inconsistency within the context of the CYFSA, the court in Children’s Aid Society of Toronto v. A.H. concluded that failure to apply the Legislation Act, 2006 would create a scenario in which a society who brought a child to a place of safety on the Wednesday before a four-day weekend (e.g. Easter weekend) would have one calendar day or less to bring the matter to hearing. To account for court closures, a society would have to pre-empt the holiday and have the matter in court on Thursday. This, the court reasoned, would place an unreasonable burden on societies to perform their necessary responsibilities on an unrealistic schedule, which would itself jeopardize the paramount purpose of the Act: to promote the best interests, protection, and well-being of children: see paras. 22-29. I agree.
[51] That concern arises, however, because absent such a provision, court closures on expiration dates can truncate, by a significant factor, the time for a party to do a certain thing. As in the example above, five days can be reduced to one, or less. The same concern does not arise when court closures do not coincide with the expiration of a timeline. It is critical to note that while the Legislation Act, 2006 contains a rule about deadlines which expire on holidays or office-closure days, it does not contain a rule in the style of r. 3(2) of the Family Law Rules, which otherwise discounts those days from being counted. The non-application of r. 3(2) or any like rule cannot possibly truncate the time in which the society has to bring the matter to court. The non-application of r. 3(2) only means that the society must discharge its responsibilities despite having to undertake some of its investigative efforts on weekends and holidays. That inconvenience does not threaten the paramount purpose of the CYFSA. On the contrary, it is entirely consistent with that purpose, the constitutional dimensions of removing a child from a parent, and with the balance that the legislature struck in s. 88. The non-application of r. 3(2) is entirely consistent with the application of the Legislation Act, 2006.
[52] Moreover, while this particular case engages s. 88 of the CYFSA, the court must be mindful that any interpretation adopted with respect to rr. 1(2) and 3 must apply equally to several other statutory time periods. Within the CYFSA alone one can discover at least 14 other provisions which impose time periods. Those provisions include, but are not limited to:
(i) maximum periods for temporary care agreements, and the corresponding timelines for notice of termination of such agreements; [8]
(ii) the maximum period of 12 hours for a 16- or 17-year-old child to be in a place of safety when being offered supports or services; [9]
(iii) the requirement that a protection hearing not be adjourned for more than 30 days, absent consent of the parties present. [10]
(iv) the maximum period of 12 months in which a child may be placed in interim society care; [11]
[53] Each of these provisions represents the legislature’s deliberate policy choice balancing critical and competing interests governed by the Act. In addition to provisions of the CYFSA, the other statutes which give rise to proceedings governed by the Family Law Rules, including the Children’s Law Reform Act, the Divorce Act, and the Family Law Act, will each contain their own references to time periods which are also representative of deliberate legislative policy choices balancing substantive interests. A rule which purported to alter that delicate and deliberate balancing, whether by discounting certain days, or by granting the court authority to extend the statutory timeline, would in my view encompass much more than the “practice and procedure” of the court. It would conflict with rather than supplement the law and would be ultra vires the rule-making authority.
[54] This is not to say that rules and regulations can never apply to the interpretation of statutory timelines. Rule 4 of the Rules of the Ontario Court (Provincial Division) in Provincial Offence Proceedings, RRO 1990, Reg. 200 (“Provincial Offence Rules”), provides a rule for counting weekends for short periods which explicitly applies to timelines in the Provincial Offences Act, RSO 1990, c P.33. Those statutory timelines, however, are limited to matters of practice and procedure, and rules interpreting them are well within the ambit of the CJA’s enabling provisions. Moreover, it is noteworthy that when the Provincial Offence Rules intend a rule to be applied to interpret statute, they do so clearly and unequivocally. In the case of r. 4, the rules state, “the following apply to the calculation of a period of time prescribed under the Act, these rules, or an order of a court” [Emphasis added.].
[55] When faced with a proposed interpretation of delegated legislation which conflicts with its enabling legislation, a court will, where possible, prefer an interpretation which reconciles the two instruments: Friends of Oldman River v. Canada, at p. 38. An interpretation of the term “rule” which reflects consistency across all of r. 3 of the Family Law Rules is also an interpretation in harmony with the enabling and related statutes, including the CYFSA, and should be preferred.
Part Four: Conclusion
[56] An isolated, textual approach to the interpretation of the term “rule” within r. 3(2) of the Family Law Rules might extend to s. 88 of the CYFSA. However, the contextual examination required by the modern approach to statutory interpretation reveals the inconsistency of such a reading with the scheme and objects of the subrule, the rule, the Family Law Rules, and its parent legislation. That context reveals that the reference to “a rule” is nothing more than a reference to one of the Family Law Rules. Rule 3(2) has no application to the timeline set out in s. 88 of the CYFSA.
[57] In the result, the society failed to bring its application before a court for hearing “within five days.” The application was brought on the seventh day following the child’s being brought to a place of safety. The society did not comply with s. 88 of the Act.
[58] Further to the court’s endorsements dated March 21 and 22, 2024, any party may apply to the court for an appropriate remedy.
Released: April 11, 2024 Signed: Justice G. Jenner
[1] Though there is divergence in the jurisprudence on this point, I prefer and adopt the court’s reasoning in Children’s Aid Society of Toronto v. A.H., 2017 ONCJ 265. See also Catholic Children’s Aid Society of Metropolitan Toronto v. S.(I.) (Ont. Dist. Ct.), [1987] O.J. No. 1703, appeal quashed on jurisdictional grounds Catholic Children’s Aid Society of Metropolitan Toronto v. S.(I.) (C.A.), [1989] O.J. No. 807. For the contrary view, see Kenora-Patricia Child & Family Services v. G. (J.), followed in Children’s Aid Society of Brant v. C.H., 2017 ONCJ 276.
[2] Insofar as a determination that r. 3(2) does not apply, and that s. 88 of the CYFSA was not complied with, would permit a party to seek a remedy which might include a dismissal of the application, the issue is not moot.
[3] Except of course where they are the fifth day. See ss. 89(1)-(2) of the Legislation Act, 2006.
[4] See, for example, the Meriam Webster definitions https://www.merriam-webster.com/dictionary/rule?src=search-dict-box.
[5] Legislation Act, 2006, s. 65.
[6] Though s. 89 of the Legislation Act, 2006 would apply to the Family Law Rules, it does not apply to court orders, and in that sense r. 3 has additional implications.
[7] The decision is in reference not to s. 88 of the CYFSA, but to the analogous provision in Manitoba’s child protection legislation, but the Supreme Court’s analysis and guidance at para. 122-129 is explicitly intended to have general application.
[8] ss. 75(5)-(8), 76(2)-(4), 77.
[9] s. 77.1
[10] s. 94.
[11] s. 101(1), 122.