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 12 03 Court File No.: Sudbury FO-24-00000228-0000

BETWEEN:

CHILDREN’S AID SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN Applicant,

— AND —

P.B. and A.F. Respondents

Before: Justice G. Jenner

Heard on: December 3, 2024 Reasons for Judgment released on: December 3, 2024

Counsel: Mathieu Butler................................................................. counsel for the applicant society P.B................................................................................................................. on her own behalf No appearance by or on behalf of A.F. No appearance on behalf of the children over the age of 12, not having been served

JENNER J.:

REASONS RE: TEMPORARY CARE AND CUSTODY HEARING

Part One: Introduction and Issues

[1] Today marked the first court appearance in a child protection application involving the respondent mother, PB, the respondent father, AF, their son (age 14), and their daughter (age 12). The children were removed from their mother’s care and brought to places of safety on November 29, 2024. The father, though a statutory party, is not presently involved in the children’s lives. The son was placed with the maternal grandmother, JM, and the daughter is in society care.

[2] To comply with s. 88 of the Child, Youth and Family Services Act (CYFSA), the matter was brought before the court within five days for a temporary care and custody hearing. The society filed a motion and supporting affidavit seeking to have the court approve, by way of order, the current placements. I am called on to decide that issue, but a threshold issue arises with respect to proper notice of this proceeding.

Part Two: Notice to Children Over 12

[3] Section 79(4) of the CYFSA stipulates as follows:

Child 12 or older

(4) A child 12 or older who is the subject of a proceeding under this Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.

[4] Section 79(6) clarifies that a child who receives notice of a proceeding is entitled to participate as if the child were a party.

[5] Despite the children in this matter being 12 and 14 years old, respectively, they had not been served with the society’s application or the society’s motion for temporary care and custody. Nor is the society requesting an order relieving against that obligation on the basis that being present at the hearing would cause either child emotional harm.

[6] A stated purpose of the CYFSA is to recognize that services to children and young persons should be provided in a manner that includes the participation of a child or young person, where appropriate: s. 1(2), para. 3.vi. Sections 79(4) and (6) serve an important function and recognize that older children and young persons have both the ability and right to meaningfully participate in protection proceedings with significant and life-altering impacts for them.

[7] When a society intervenes to remove a child to a place of safety, it is under significant and unenviable pressure to move quickly to both meet the practical needs of the children and to comply with its duty to bring the matter before the court as soon as practicable, but within five days. That said, the statutory requirement to notify older children of the proceeding is not optional and cannot fall victim to these exigencies. It must be respected and complied with.

[8] Where the society is of the view that notice to a child 12 or older is inappropriate and seeks relief against it, then that request should be brought to the court’s attention as soon as possible, and ideally before the first hearing date. It is not for me to prescribe a universal process for the society to follow, and local considerations may well have an impact, but I would think that the most appropriate and efficient way to do so is to file an urgent, without notice motion, to the attention of the judge who is scheduled to preside at the initial temporary care and custody hearing. Alternatively, guidance could be sought from the court directly at the same time the society is seeking dates for the hearing.

[9] I appreciate that in the early days of a child protection application, the society’s investigation is ongoing, and the factual landscape is often in flux. I recognize that at times, the society may have no alternative but to make an oral motion before the court at the time of the hearing, based on the most recently available facts.

[10] Here, as noted, the society is not making such a request. Notice to the children is required. This temporary care and custody hearing shall be adjourned to December 5, 2024, at 9:00 am in order that the society may serve the children with notice of the proceeding and facilitate their attendance, should they wish, at the temporary care and custody hearing. The participants may attend virtually or in person at that time.

Part Three: The Need for a Temporary Order

[11] The children cannot be left in a state of limbo while the society complies with its notice obligations. I must make an order, albeit on a without prejudice basis, addressing the temporary placement of the children. The mother has participated today and given my direction that the matter would be adjourned only two days, did not oppose the society’s request.

[12] The affidavit of Jennifer Mitchell, Child Protection Worker, dated December 2, 2024, satisfies me that there are reasonable grounds to believe there is risk that if the children are returned to their mother’s care, they are likely to suffer harm. The evidence further satisfies me that the children cannot be adequately protected by an interim supervision order: CYFSA, s. 94(4).

[13] The society has a long history of involvement with the mother, dating back to 2001. I will focus on the most recent events. The evidence, which stands uncontested at this early stage, demonstrates that the mother has left the home to take a trip—possibly out of country—and that she was not expected to return until December 9, 2024 (although I note she is present today). She left the home in a hazardous state and left the children without adequate supervision. The home was observed to be replete with crack pipes, foil, needles, and other drug paraphernalia. The kitchen was unusable. The babysitter arranged by the mother is, by her own admission, not a suitable caregiver, and contacted the society to seek assistance. There are additionally complaints that the mother has recently been physically violent towards the daughter, and that she has been sexually inappropriate towards the son.

[14] Section 94(5) requires me to consider whether it is in a child’s best interests to place them in the care of a relative or a member of their community before placing them in society care. In the son’s case, the society has arranged for him to be placed with his maternal grandmother, JM. The son has resided with JM in the past for a period of eight months and has voiced satisfaction with being placed with her again. On the limited information before me at this time and recognizing this order may be revisited on proper notice to all the parties, I agree it is in the son’s best interests to continue in his current placement.

[15] While JM may be a suitable enough caregiver for the daughter as well, she is unable to accommodate both children and the society is not aware of other options within the family or community at this time.

[16] In the result a temporary without prejudice order shall issue in accordance with the terms sought by the society in their motion materials. It bears emphasizing that the record at the next court appearance may be different, and the court may arrive at a different outcome with respect to temporary care.

Released: December 3, 2024 Signed: Justice G. Jenner