COURT FILE NO.: C546/93-19
DATE: April 24, 2014
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
RE: Children’s Aid Society of London and Middlesex, applicant
AND:
M.O., R.B. and T.B., respondents
BEFORE: MITROW J.
COUNSEL: Sandra Welch for the Society
Ronald C. George for Chippewas of Kettle and Stony Point
Therese Landry for the Children’s Lawyer
R.B. in person
No one appearing for M.O.
No one appearing for T.B.
HEARD: November 14, 2013
ENDORSEMENT
[1] This matter came on for trial before me on November 13, 2013. All the parties, including the mother, M.O., who had not filed any pleadings, agreed to a finding of protection and a four month extension of Society wardship.
[2] The child, who was age 9, had been in Society care for a little under 29 months.
[3] The parties filed evidence on consent and that included the background facts in support of the order being requested.
[4] I raised the issue as to whether an order for an additional four months of Society wardship could be made as that would exceed the 24 months provided for in s. 70(1), plus the additional 6 months set out in s. 70(4).
[5] All parties urged the court to take a liberal view of s. 70(4) and to make the order as sought. The matter was adjourned for one day in order to hear argument on the issue of s. 70(4) and to permit the parties to provide any authorities.
[6] On November 14, after hearing argument, a final order was made for a further Society wardship of one month for oral reasons given on the record.
[7] I was not prepared to order a further four months of Society wardship as requested. In my view, s. 70 permitted a maximum of 30 months Society wardship for a child 6 years of age or older.
[8] The endorsement for my final order at that time provided that I would release more detailed reasons later for my ruling on s. 70(4).
[9] Accordingly, these are the reasons.
DISCUSSION
[10] The issue can be described as follows: does s. 70(4), in conjunction with 70(1), provide a finite limit for temporary wardship of 18 months for a child under the age of 6, and 30 months for a child 6 years of age or older? In the alternative, can s. 70(4) be used to make an order of temporary wardship even though that may result in the child being a society ward for periods exceeding 18 months for a child under the age of 6, or exceeding 30 months for a child 6 years of age or older?
[11] Section 70 of the Child and Family Services Act, R.S.O. 1990, c C.11 (the “Act”) is the relevant provision and provides as follows:
70.(1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,
(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or
(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.
(2) In calculating the period referred to in subsection (1), time during which a child has been in a society’s care and custody under,
(a) an agreement made under subsection 29 (1) or 30 (1) (temporary care or special needs agreement); or
(b) a temporary order made under clause 51 (2) (d),
shall be counted.
(2.1) The period referred to in subsection (1) shall include any previous periods that the child was in a society’s care and custody as a society ward or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society’s care and custody.
(3) Where the period referred to in subsection (1) or (4) expires and,
(a) an appeal of an order made under subsection 57 (1) has been commenced and is not yet finally disposed of; or
(b) the court has adjourned a hearing under section 65 (status review),
the period shall be deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 65, as the case may be.
(4) Subject to paragraphs 2 and 4 of subsection 57 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so.
[12] The decision of Sherr J. in Children’s Aid Society of Toronto v. P.(K.), 2006 CarswellOnt 10064 (O.C.J.) sets out some of the conflicting case law as to how long the statutory limits can be extended by using s. 70(4) of the Act. In that case, the child, under the age of 4 at the time of judgment, had been in society care for 42 months. Sherr J. adopted the “liberal” interpretation of s. 70(4), finding that there was discretion to apply s. 70(4) in that case, although on the facts, Sherr J. made an order of Crown wardship. The thoughtful analysis by Sherr J. on the issue of s. 70(4) has been referred to in a number of subsequent decisions and is reproduced below (paras. 111 – 116):
111 There is conflicting case law concerning how long the statutory time limits can be extended by applying subsection 70(4) of the Act. A restrictive interpretation was taken in the case of Catholic Children's Aid Society of Hamilton v. M.A.M., D.L. and M.M. (2003), 121 A.C.W.S. (3d) 889, [2003] O.J. No. 1274 (Ont. Sup. Court-Family). Justice Stayshyn ruled that there was no jurisdiction to extend the time for society wardship in subsection 70(4) when a child had been in care for 21 months. He further stated in Paragraph 157:
In my view s. 70 which sets the time limits for Society wardship orders should not be interpreted as a maximum time for parents to improve their parenting skills. Rather, it should be interpreted as a ceiling for the length of time which a child may remain in foster care. Inherent in that analysis is the assumption that parents will work immediately to improve their parenting skills so that a child can be returned to them as quickly as possible within that 12 month period.
112 In Children and Family Services for York Region v. A.W. and M.M. (2003), 121 A.C.W.S. (3d) 299, [2003] O.J. No. 996 (Ont. C.J.), Justice Wood stated:
(31) In exceptional circumstances, the court is empowered to extend the period a young child can remain in care past the 12 month limit to a maximum of 18 months. I am satisfied that this is an appropriate case in which to exercise that discretion.
113 A more liberal interpretation of the subsection was taken in the case of Children's Aid Society of the Districts of Sudbury and Manitoulin v. P.M. 2002 46663 (ON CJ), [2002] O.J. No. 1217 (Ont. C.J.) where Renaud J. stated:
(103) Arguably, inflexible legislative time provisions may superficially appear to work contrary to the child's best interests. Nevertheless, the courts possess sufficient flexibility to address individual situations. Subsection 70(4) may permit a court to make more than one order extending time periods, provided no one single order exceeds six months. Had the intention of the legislature been to limit the power of the court to grant a further extension, it would have been easy to state so, as in the provisions of Part V of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 permitting a single refraining order upon receipt of the first notice of suspension. Such an interpretation may not be giving language its plainest meaning but arguably, such a reading may well be more consistent with the principles expressed in section 1 of the Act and the best interests of a child in a particular case.
(105) Thus, the prescribed time periods should be followed to the fullest possible extent as may be consistent with the paramount consideration, being the best interest of the child.
114 This case was cited with approval in Children's Aid Society of Toronto v. M.W. 2004 ONCJ 127, [2004] O.J. No. 3160 (Ont. C.J.) where Justice Brownstone wrote in paragraph 29 when referring to the possibility of an extension of time pursuant to subsection 70(4):
I agree that in an appropriate case this might be done where a child's best interests clearly necessitate it. No child's connection to his family should be severed solely by reason of an arbitrary time limitation.
115 In Children's Aid Society of Ottawa-Carleton v. D.B. [2002] O.J. No. 4118 (Ont. Sup. Court), Justice Smith stated:
(52) The interpretation which would make practical sense and which would give the Court flexibility in making its decision, would be to allow the Court the discretion to grant a further 6 month extension, from the date the matter comes before the Court, provided the Court finds it is in the best interests of the child to grant the extension.
116 K.P. is asking me to stretch the envelope in applying this subsection, given the length of time that M.S. has been in care. That said, I agree with taking a liberal interpretation and find that I have the discretion in subsection 70(4) to grant a 6 month extension of Society wardship from the date the matter comes before the court, provided that it is in the child's best interests to do so. I find in this manner for the following reasons:
a) The paramount consideration set out in section 1 of the Act is the best interests of the child.
b) Arbitrary time limits should not be used to defeat the best interests of a child.
c) If the Legislature had wished to restrict the applicability of subsection 70(4) it could have done so.
d) This interpretation does not diminish the importance of finding a permanent placement for a child in a timely fashion. It is the clear intention of the legislation that children not languish in care. Section 70 of the Act provides direction to the court that a child under the age of 6 should not ordinarily remain a Society ward in excess of one year. It stands to reason that the longer a child is in care, the more weight will be given to the factors set out in subsection 37(3) of the Act which deal with planning for a child in a timely manner when determining what order is in their best interests. Just because a court has the discretion to order an extension will not mean that it is in the best interests of a child to do so.
e) There will be cases where, for a variety of reasons, it is in the best interests of a child to return a child to a parent, but a delay is appropriate. Kawartha-Haliburton Children's Aid Society v. K.M. [2001] O.J. No. 5047 (Ont.Sup.Court). Examples of this can be a parent needing a little more time to complete a program where participation was delayed due to waiting lists; waiting for an important support service to become available for either a parent or child; waiting for imminent housing to become available or as in this case to assist a child making a positive and gradual transition from a foster placement to a home placement. It would be detrimental to a child to rush this process for the sake of strict compliance with a time guideline.
f) If a restrictive interpretation was given to this subsection, courts, to avoid offending it, might adjourn trials to allow implementation of plans they considered to be in a child's best interests. It is a preferable practice to address the issue in a straightforward manner consistent with the best interests of the child. The court should not be constrained in being able to accommodate these situations. My interpretation of subsection 70(4) is that it provides this flexibility.
[13] In P.(K.), supra, at para. 115 reproduced above, Sherr J. refers to the decision of Smith J. in Children’s Aid Society of Ottawa-Carleton v. B.(D.), 2002 61172 (ON SC), 2002 CarswellOnt 3566 (S.C.J.) in support of the liberal approach by referring to para. 52 of that decision.
[14] In that case, the child was under 6 years of age and had been in society care for a period of approximately 21 months at the time of the release of the judgment.
[15] In my view, when the aforementioned para. 52 is considered in context, the decision of Smith J. is more consistent with the position that s. 70(4) of the Act cannot be used to extend society wardship beyond 18 months for a child less than 6 years of age and beyond 30 months for a child 6 years of age or older. In paras. 49 – 52, Smith J. states:
49 The child is less than six-years old and has been in the care of the Society for more than one year. Pursuant to s. 70(1) of the Child and Family Services Act, the Court can no longer make an order for temporary care lasting longer than twelve months for a child under six years of age and must either make the child a ward of the Crown with or without access or return the child to the care of the parents with or without supervision.
50 I am not satisfied that a further extension of 12 months is permitted under s. 70(4) of the Child and Family Services Act which states as follows (my emphasis):
Section 70(4) of the Children and Family Services Act allows the Court to extend the period that the child is in care for a further 6 months beyond the 12 months permitted pursuant to s. 70(1).
51 In the case of Children's Aid Society of the District of Sudbury and Manitoulin v. P.M., 2002 46663 (ON CJ), [2002] O.J. No. 1217, Justice Renaud held that if the best interests of the child required it, then the Court had the discretion to extend the period a child is in care by successive periods of six months. It is not necessary for me to decide whether successive six-month extensions can be granted pursuant to s. 70(4) of the Child and Family Services Act in the circumstances of this case.
52 The interpretation which would make practical sense and which would give the Court flexibility in making its decision, would be to allow the Court the discretion to grant a further six-month extension, from the date the matter comes before the Court, provided the Court finds it is in the best interests of the child to grant the extension.
[16] In Bruce Grey Child and Family Services v. M.S., [2013] O.J. No. 3948 (O.C.J.), S.P. Harrison J. adopted the discussion by Sherr J. in P.(K.) and extended society wardship for a further three months (to be followed by a six month supervision order placing the child with the parents), where a three year old child had been in society care since shortly after birth.
[17] In para. 113 (reproduced above) in P.(K.), supra, Sherr J. cites the decision of Renaud J. in Children's Aid Society of the Districts of Sudbury and Manitoulin v. P.M. 2002 46663 (ON CJ), [2002] O.J. No. 1217 (Ont. C.J.) that, in my view, extends the liberal approach to the maximum, by suggesting that multiple extensions may be given under s. 70(4) so long as each extension does not exceed six months.
[18] The liberal approach, and in particular the multiple extensions pursuant to s. 70(4) advocated by Renaud J., were rejected by L. Duchesneau-McLachlan J. in Children’s Aid Society of Nipissing & Parry Sound (Districts) v. C.(T.), 2007 CarswellOnt 4658 (O.C.J.) at paras. 85 – 87:
85 I agree with Mr. Wallace and Ms. Gregson that our statute is quite specific in that children under six years of age must not be left in total society care for more than eighteen month - the initial twelve and then the possible six months extension.
86 I respectfully disagree with the decision of Justice Yvon A. Renaud in Children's Aid Society of Sudbury and Manitoulin v. Paula M., William S. and Sagamok First Nation, 2002 46663, 112 A.C.W.S. (3d) 889, [2002] O.J. No. 1217, 2002 CarswellOnt 965 (Ont. C.J.), wherein he advanced the proposition that the court may make any number of extension orders of up to six months each. To my mind, such an interpretation defeats the purpose of the section as legislated.
87 I do agree that my choices today are to grant Crown wardship or make a supervision order or make no order.
[19] More recently, the liberal approach was endorsed by Zuker J. in L.(A.), Re, 2012 CarswellOnt 8468 (O.C.J.) and the conflicting cases were summarized (see paras 142 – 147). In para. 145, Zuker J. adopts his reasons in a previous case that summarized a decision of M. Scott J. in Kawartha-Haliburton Children’s Aid Society v. K.M., [2001] O.J. No. 5047 (S.C.J.) as follows:
145 …
56 There will be cases where, for a variety of reasons, it is in the best interests of a child to return to a parent, but a delay is appropriate. In these limited cases, the court should make the extension order set out in subsection 70 (4). Kawartha-Haliburton Children's Aid Society v. K.M. [2001] O.J. No. 5047 (Ont. Sup. Court). These would include cases with the following facts: where a parent needs a little more time to complete a program where participation was delayed due to waiting lists; where a parent or child is waiting for an important support service or imminent housing to become available or where a child needs additional time to make a positive and gradual transition from a foster placement to a home placement. It would be detrimental to a child in such cases to rush this process for the sake of strict compliance with a time limit.
[20] The reference to the aforementioned decision of M. Scott J., as supporting extension orders under s. 70(4) in limited circumstances, should be viewed in context. In that case, a child under the age of 6 had been in society care for just under 13 months at the time of judgment. Although an order for Crown wardship was made, it was still possible to have made an order for further society wardship for at least 5 months under s. 70(4) without exceeding the 18 month maximum. More importantly, however, there was no suggestion or discussion by M. Scott J. that s. 70(4) was available to exceed the 18 month limit of society wardship. In my view, that case is not authority for an argument in favour of the liberal approach. That case was decided soon after the amendment to the Act prescribing a 12 month limit of society wardship for a child under the age of 6. M. Scott J. noted (at para. 72) the dearth of jurisprudence dealing with s. 70(4). The discussion in that case centred around the general factors to consider before making any extension under s. 70(4).
[21] In Children’s Aid Society of Oxford (County) v. J.(J.), 2003 CarswellOnt 2073 (S.C.J.), being an appeal from the Ontario Court of Justice, the discussion by Heeney J. is clear that s. 70(4) imposes a maximum period of temporary wardship depending on the age of the child, as set out in paras. 17 – 19:
17 The children came into care on 20 July 2001. Under subsection 70(1) of the Child and Family Services Act, R.S.O. 1990, c. C-11 (as amended), the court is precluded from making children who are under 6 years of age society wards for a period in excess of 12 months. Under subsection 70(2), that 12-month time period is deemed to include time spent in care under a temporary care agreement. Subsection 70(4) provides for the possibility of a 6-month extension and that was, in fact, granted in this case. The children had, therefore, been in care a total of 17 months within the meaning of section 70 when the motions judge decided this motion on 23 December 2002.
18 With respect to the two youngest children, the motions judge was correct to say that, within four weeks time, the court would be obligated to make either an order returning the children to the care of the mother, or to make the children Crown wards. The total time period of 18 months, which included the one extension permitted by the Act, was due to expire on 20 January 2003.
19 With respect to the oldest child, however, this premise was in error. Since S.L.J. was more than 6 years old, the applicable period was 24 months, not 12 months. She could have remained in care as a society ward until 20 July 2003 or, with an extension, until 20 January 2004, fully 13 months after the summary judgment order was made.
[22] In Catholic Children’s Aid Society of Toronto v. B.(N.), 2010 ONSC 615, 2010 CarswellOnt 352 (S.C.J.), Perkins J. heard an appeal from a final order of Crown wardship made in the Ontario Court of Justice. One of the grounds of appeal was that the trial judge should have extended the time for society wardship under s. 70(4). The child had been apprehended at birth and had been in society care for 24 months at the end of the trial. At the time of the appeal, the child had been in care for 34 months.
[23] Perkins J., in dismissing the appeal, was of the view that s. 70(4) would only permit a total of 18 months society wardship given the age of the child, although Perkins J. did acknowledge that other cases took the view that there was no fixed maximum. This is discussed in paras. 6 – 8:
6 The trial judge dealt with the issue of an extension of time under section 70 only briefly in her reasons. She said, at p. 41:
Although this was a live issue in the course of the trial, it was not at the close of submissions. When this trial ended, [the child] had been in the continuous temporary custody of the society for a full two years. As [the mother's lawyer] properly conceded, the choices available to the court at this time are either a return to the mother under court ordered supervision of her parenting or a Crown wardship to release this child for adoption.
7 Given this concession by the mother at trial, it can hardly be an error by the trial judge that she did not extend the society wardship period. In this case, the child had been a CCAS ward for 24 months when the closing submissions were made. It appears to me that the concession was a necessary one in the circumstances of this case, where six months over the normal time limit had already gone by.
8 Section 70(4) seems to me to permit a total period of society wardship of only 18 months for a child of this age. See R.L. v. CAS of Niagara, 2002 41858 (ON CA), [2002] O.J. No. 4793 (C.A.), at para. 5; CCAS of Hamilton v. M.A.M., [2003] O.J. No. 1274 (S.C.J. Fam. Ct.), at para. 157; J.C.J.-R. v. CAS of Oxford, 2003 2388 (ON SC), [2003] O.J. No. 2208 (S.C.J.), at paras. 18-19. Other cases take the view that there is not a fixed maximum: CAS of Toronto v. K.B., [2007] O.J. No. 5090 (O.C.J.), at para. 38; CAS of Toronto v. L.U., 2007 ONCJ 741, [2007] O.J. No. 5549 (O.C.J.), at para. 12, affirmed without reference to this legal issue 2008 26661 (ON SC), [2008] O.J. No. 2170 (S.C.J.); CAS of Sudbury v. P.M., 2002 46663 (ON CJ), [2002] O.J. No. 1217 (O.C.J.).
[24] Pazaratz J., in Children’s Aid Society of Hamilton v. M.(A.), 2012 CarswellOnt 13639 (S.C.J.), was dealing with a society motion for summary judgment seeking an order of Crown wardship. In considering s. 70(4), Pazaratz J. held that the finite term for society wardship had been exceeded, stating at para. 52:
52 S.C.M. has been in care more than 22 months – longer than the amount of time permitted under s. 70, even including a potential six month extension pursuant to s. 70(4). At a certain point – and section 70 helps us in determining that point – primacy has to be placed on the child’s actual needs over the parent’s potential progress. (Children’s Aid Society of Hamilton v. L.(A.D.), [2009] O.J. No. 4390 (Ont. S.C.J.), paragraph 144). (emphasis in original)
[25] While admittedly there are two lines of authority on the issue of extensions of society wardship pursuant to s. 70(4), I am of the view, with deference to opinions to the contrary, that on a plain reading of s. 70(4), the period of society wardship referred to in s. 70(1) can only be extended for six months. Section 70(4) cannot be considered in isolation. The maximum time limits are set out in s. 70(1). Section 70(4) refers to extending “the period” permitted by s. 70(1). This creates an 18 month maximum for a child under the age of 6, and a 30 month maximum for a child 6 years of age or older.
[26] In addition, and I say this respectfully, an interpretation of s. 70(4) that permits multiple extensions of up to six months each time, is not supported by the wording of the legislation. I agree with the reasons of L. Duchesneau-McLachlan J. in C.(T.), supra. (However, in theory, multiple extensions pursuant to s. 70(4) could be possible, but subject to the overall maximum limits of 18 months or 30 months depending on the child’s age.)
[27] The paramount purpose of the Act is set out in s. 1(1):
1(1)The paramount purpose of this Act is to promote the best interests, protection and well being of children.
[28] The Act specifically provides a maximum period of society wardship; this directive makes clear that children are not to languish as wards in society care.
[29] A liberal interpretation of s. 70(4) results in a situation where society wardship can continue, via a six month extension, or perhaps multiple six month extensions as some cases have suggested, with no finite limit for society wardship.
[30] If the legislature had intended to allow for “the period” set out in s. 70(1) to be extended by more than six months, then that could have been stated in s. 70(4).
[31] I find support that s. 70(4) creates a finite period of society wardship in the case of L.(R.) v. Children’s Aid Society of Niagara Region, 2002 41858 (ON CA), 2002 CarswellOnt 4262 (C.A.). In that case, the Court of Appeal for Ontario was dealing with an appeal in a protection case that involved different issues than the case at bar. However, in the course of its judgment, the Court found it appropriate to set out the intended course of child protection proceedings under the Act.
[32] The Court examined the various steps and time limits under the Act. In relation to s. 70, the following is stated at para. 5:
- … The Act stipulates in s. 70 that the court shall not make an order that results in the combined total period for a child being in the Society’s care that exceeds twenty-four months or, pursuant to the recent amendments to the Act, in the case of a child under the age of six years, twelve months. The time limit may be extended by an additional six months. This time limit includes any interim care orders made during an adjournment of a protection proceeding. It excludes the time to dispose of any appeals from orders that have been made. Society wardship therefore gives the Society a finite time within which to determine if the best interests of the child lie with being returned to a parent or with his or her extended family. (my emphasis)
[33] Some of the cases supporting a liberal approach to the interpretation of s. 70(4) do so on the basis that a child’s best interests cannot be curtailed by arbitrary time limits. In my view, the preferred interpretation of s. 70(4), and one that is also consistent with the decision of the Court of Appeal for Ontario in Children’s Aid Society of Niagara Region, supra, is that a child’s best interests, in relation to an order of society wardship, are served by making such an order within the finite time prescribed by s. 70.
[34] For the foregoing reasons, I find that s. 70(4) cannot be used to extend a period of temporary wardship beyond 18 months for a child under the age of 6, and beyond 30 months for a child 6 years of age or older.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: April 24, 2014