Court File and Parties
Court File No.: C-663-19 Date: 2019-05-24 Superior Court of Justice – Ontario
Re: Children’s Aid Society of Niagara, Applicant And: I. and R., Respondents
Before: Mr Justice Ramsay
Counsel: W. Herter for the Applicant; T. Pybus, duty counsel for Respondent I.; A. Debbané for Respondent R.
Heard: May 24, 2019 at Welland
Endorsement
[1] On May 9, 2019 the child, an 11-month-old boy, was removed to a place of safety by the Children’s Aid Society of Hamilton from his parent’s home in Hamilton, where he had been in their charge. The Society applied for a determination that the child was in need of protection and on May 14 the parties appeared before Bale J. in the Family Court of the Superior Court in that city for a hearing under s. 90 of the Child, Youth and Family Services Act. Bale J. adjourned the matter and made an order under s. 90(2) of the Act that the child be returned to her mother with conditions pending the adjournment. One of the conditions required the mother to live with her own mother in Welland. Bale J. transferred the matter to Welland on consent of the parties.
[2] The Director of the Children’s Aid Society of Niagara has filed a notice of application for leave to appeal and notice of appeal to the Divisional Court, citing s.19 (1) (b) of the Courts of Justice Act, and a motion under s.121 (4) of the CYFS Act for a temporary order for care and custody of the child and a stay of the order of Bale J. pending the appeal. Before me today are the motions under s.121 (4) for a temporary order and a stay.
[3] I do not think that the Society has identified correctly the basis of the Divisional Court’s jurisdiction. Section 121(1) of the CYFS Act provides:
121 (1) An appeal from a court’s order under this Part [Part V] may be made to the Superior Court of Justice by … (d) a Director or local director. … (3) Where a decision regarding the care and custody of a child is appealed under subsection (1), execution of the decision shall be stayed for the 10 days immediately following service of the notice of appeal on the court that made the decision, and where the child is in the society’s care and custody at the time the decision is made, the child shall remain in the care and custody of the society until, (a) the 10-day period of the stay has expired; or (b) an order is made under subsection (4), whichever is earlier. (4) The Superior Court of Justice may, in the child’s best interests, make a temporary order for the child’s care and custody pending final disposition of the appeal, and the court may, on any party’s motion before the final disposition of the appeal, vary or terminate the order or make a further order.
[4] Section 21.9.1 of the Courts of Justice Act, read in conjunction with the schedule to s.21.8 of that Act, provides that the provision for an appeal from the Ontario Court to the Superior Court with respect to an order under Part V of the CYFS Act is deemed to provide an appeal from the Family Court of the Superior Court to the Divisional Court. The Society, then, has an appeal as of right and no need to resort to s. 19 of the Courts of Justice Act or to seek leave. The situation is the same as that of an appeal under s.73 of the Children’s Law Reform Act, which is also mentioned in the schedule to s. 21.8 of the Courts of Justice Act. See Christodoulou v. Christodoulou, 2010 ONCA 93, [2010] O.J. No. 405 (MacPherson J.A. in chambers).
[5] In any event I can under s.121 (4) of the CYFS Act make a temporary order pending disposition of the appeal and vary or terminate the order of Bale J. There is no need to consider a stay. Either Bale J.’s order will go into effect or any order I make will replace it.
[6] I do not propose therefore to apply the test for a stay that has, in similar contexts, been considered by my colleagues in such cases as CAS Sudbury and Manitoulin v. C.B., [2003] O.J. No. 5469 and CAS Ottawa-Carleton v. B.H., 2017 ONSC 4799.
[7] It seems to me that two considerations have the most weight here:
[8] The CYFS Act provides expressly that promotion of the best interest of the child is its paramount purpose, and that a child who is removed to a place of safety shall be returned to the person from whose care he was removed, with or without conditions, unless the Society shows reasonable and probable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be adequately protected if the child is returned: ss. 1(1), 94(2).
[9] A decision, albeit a temporary decision (in this case a “temporary, temporary” decision), has been made by a court of competent jurisdiction, which should not be overturned without good reason.
[10] Good reason to overturn the decision could include an apparent error of law that is not harmless, an apparent palpable and overriding error of fact or fresh evidence that reveals previously unknown facts that make the difference.
[11] The Society alleges a number of errors and offers fresh evidence. I think that some of the Society’s submissions are arguable.
[12] The judge had reason to discount reports from the paternal grandparents. As she said, there is little detail or background to justify putting much weight on their hearsay reports. With respect to the remaining evidence, and the four stated matters of concern (domestic violence, parenting capacity, mental health issues and lack of medical follow through) all she said was, “I am concerned about the source and strength of many of these allegations but I do not have the benefit of responding materials yet by the mother or the father. The parties agree that the matter should be adjourned. The parents have not yet had the opportunity to retain counsel and to respond to the allegations of the Society and they require an opportunity to do so.”
[13] The limits on the parents’ ability to prepare are inherent in the legislation, which requires the first appearance to take place within five days of removal. The parents’ rights are taken into account by the onus on the Society and the fact that any order made pending adjournment is temporary. It is not a reason to discount evidence that is available.
[14] The most serious reports on the record came from the maternal grandmother. A CAS worker deposed that the maternal grandmother had told her on the day of the removal that two weeks earlier the mother had left in a hurry with limited supplies and had been telling people she is hearing voices and does not appear to be able to manage her anger. She also said that the mother will scream, hit and punch people (not the child) when upset.
[15] To find that the child can be protected adequately by an order returning the child to the mother with conditions without dealing with that cogent evidence strikes me as a palpable and overriding error. The conditions imposed were strict, but they give no power to the grandmother to prevent the mother from taking off with the baby. She can only report it to the authorities after the fact. The fact that the mother’s own mother is reporting that she is saying she hears voices is by itself an extremely concerning circumstance. In the absence of any explanation from the judge as to what she made of it, I think I am entitled to look at the short term situation anew. I think that the child cannot be protected adequately unless he is placed with the Society or another person.
[16] I admit the fresh evidence but I do not need to deal with it. I think that to protect the child adequately it is necessary to place him with the Society or with another person.
[17] I have an advantage that Bale J. did not, in that I have consent from the maternal grandmother to take charge of the child, together with a plan of care that would be essentially what Bale J. ordered, but with the maternal grandmother having the authority as well as responsibility for the child. The Society objects on the basis that it has not had an opportunity to make an assessment of the suitability of the grandparents’ home. They have not, but there is significant evidence on the record and the Act does not contemplate that children should necessarily be kept in care pending a full investigation. The grandmother has had a number of files with child protection agencies, but they were all unverified except for one set that involved domestic violence perpetrated on her by a previous partner whom she has not seen in 14 years. She lives with her husband and they are raising a 10-year-old with special needs and have had no Society involvement in that regard. She has essentially been forthright with the Society, even if her initial disclosure was delayed. And she has an interest in taking good care of her own grandchild. Her interest and the mother’s interest are not identical.
[18] I grant the motion and vary the order of Bale J. as follows: a. In the first sentence of paragraph 1, after the child’s date of birth, replace the remaining words before the colon with “shall remain in the care and custody of the Society until May 27, 2019, when he shall be placed in the care and custody of [maternal grandmother’s name]” subject to the Society’s supervision on the following terms and conditions”. b. In clause 1 a., the word “shall” is replaced with “may.” c. Clause 1 c. is replaced with “No one shall sleep in the same bed as the child or permit anyone to sleep in the same bed as the child.” d. In clauses 1 f. and k. the word “mother” is replaced with “maternal grandmother.” e. Clause 1 h. is deleted. f. In clauses 1 m. and p., the words “the maternal grandmother and” are added before the word “parents.” g. In clause 1 s., the word “mother” is replaced by “maternal grandmother.” h. In clause 1 y. the word “mother” is replaced by “maternal grandmother.” i. In clause 1 w., the words “they and the maternal grandmother” is inserted before “shall ensure”. j. In clause 1. z. the words “or unless the maternal grandmother is present” are added before the final period.
[19] The motion for a stay of the order of Bale J. is dismissed. Costs are not sought.