CAS v. J.U. and B.P.-M., 2020 ONSC 3753

COURT FILE NO.: FC-19-FO-168 DATE: 2020-06-15

WARNING: This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(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 SUPERIOR COURT OF JUSTICE – UNIFIED FAMILY COURT

BETWEEN:

Children’s Aid Society of the Regional Municipality of Waterloo Applicant – and – J.U. AND B.P.-M. Respondents

Counsel: Aisha Ghafoor, Counsel for the Applicant No one appearing, having been noted in default on January 14, 2020

HEARD: June 12, 2020

MADAM JUSTICE J. BREITHAUPT SMITH

REASONS FOR JUDGMENT

[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ Having regard to the expansion of services provided by the Superior Court effective May 19, 2020, this matter was heard by ZOOM videoconference at 10:00 a.m. on Friday, June 12, 2020. Ms. A. Ghafoor acted as counsel for the Applicant Society, represented by the Family Worker, Ms. J. Tatton, also in attendance. Neither Respondent parent appeared and Ms. Ghafoor confirmed that no one had communicated with her, or with her client, on behalf of either Respondent parent since the matter was last in court on January 14, 2020.

[2] In accordance with the consolidated Regional Notice to the Profession issued on May 13, 2020 effective May 19, 2020 (and amended May 26, 2020) and the Protocol for Central South dated April 7, 2020, electronic materials were filed by the Applicant Society by email to Kitchener.Superior.Court@ontario.ca:

a. Endorsements dated December 5, 2019 and January 14, 2020; b. Protection Application dated December 4, 2019; c. Notice of Motion originally returnable December 5, 2019; d. Affidavit of J. Tatton dated December 3, 2019; e. Form 33B Plan of Care of Society dated December 3, 2019; f. Affidavit of J. Tatton dated March 13, 2020; g. Form 14B Motion Form dated May 25, 2020; h. Affidavit of J. Tatton dated May 26, 2020; i. Draft Final Order; j. Affidavits of Service; and k. Order of Madam Justice J. Walters dated June 4, 2020 regarding the child’s elder sibling (B. W. N.-M., now approximately 1 ½ years old), who was the subject of a separate Status Review Application contained within the same court file.

[3] Upon the resumption of court operations, the Society shall file its materials in the continuing record at the courthouse. I would note that I do not have access to any other portion of the continuing record.

I. Procedural Background

[4] The Society asks for a Final Order for statutory findings regarding the child, K. M. U., who is now six months of age, and placing her in Interim Society Care for a period of six (6) months. The Protection Application was originally served upon the Respondent Mother personally on December 4, 2019 and upon the Respondent Father personally on December 10, 2019. Neither parent appeared on either of the pre-COVID-19 return dates (being December 5, 2019 and January 14, 2020), nor did they file any materials. On January 14, 2020, Mr. Justice MacLeod noted both parents in default and scheduled this matter for an uncontested hearing on March 26, 2020 at 2:15 p.m. Respondent Mother was advised of that date, but no current contact information was then available to the Society for Respondent Father. Of course, the events surrounding COVID-19 then intervened, and the Superior Court of Justice cancelled all in-person hearings during the month of March and administratively adjourned this proceeding first to June 2, 2020 and then again to July 6, 2020 for scheduling purposes.

[5] By means of its Form 14B Motion Form, the Society asked that this matter be brought forward to be dealt with in advance of the July 6th scheduling date. Having regard to the parents’ lack of engagement vis-à-vis K. M. U., the details of which are set out below, dealing with this matter in this fashion appropriately balances the need for transparency and accessibility within the administration of justice against the need to proactively plan for the enormous backlog of matters anticipated for the re-opening of the Superior Court of Justice to in-person hearings in July of 2020.

II. Procedural Fairness – How should we approach an “uncontested hearing” in the child protection context?

A. “Noting in Default” – Is there a gap in the Family Law Rules?

[6] The Respondent parents in this matter have been noted in default, meaning that they have failed to serve and file responding materials to the originating process in this matter in accordance with the timelines set out in the Family Law Rules. The procedure for a child protection hearing under section 90 of the Child, Youth and Family Services Act, 2017 (the CYFSA) where the Respondents have failed to answer the Society’s case is not defined. There is no specific guidance set out either in the CYFSA or in the Family Law Rules as to the conduct of an uncontested “hearing.”

[7] Rule 10(1) provides thirty days in which a Respondent may serve and file an Answer [1], failing which “the consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply.” [2] Rule 1 (8.4) paragraphs 1 to 4 read:

1 (8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
2. The party is not entitled to participate in the case in any way.
3. The court may deal with the case in the party’s absence.
4. A date may be set for an uncontested trial of the case.

[8] “Uncontested trial” is defined at Rule 1(1) as “a trial at which only the party making the claim provides evidence and submissions” and Rule 23(22) confirms that affidavit evidence may be used at an uncontested trial unless the court directs that oral evidence must be given.

[9] Notably, the Family Law Rules do not use the phrase “noting in default.” The Society suggests that this is a gap in the Family Law Rules. Where such gaps exist, Rule 1(7) tells the court to decide “by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.” The Society thus asks me to apply Rule 19.02(1) of the Rules of Civil Procedure which reads:

19.02 (1) A defendant who has been noted in default,

(a) is deemed to admit the truth of all allegations of fact made in the statement of claim; and (b) shall not deliver a statement of defence or take any other step in the action, other than a motion to set aside the noting of default or any judgment obtained by reason of the default, except with leave of the court or the consent of the plaintiff.

[10] Although the phrase “noting in default” is not expressed in the Family Law Rules, the two concepts addressed by Rule 19(1) of the Rules of Civil Procedure are covered. There is no substantive gap in the Family Law Rules. Despite a Respondent’s failure to answer a case, proper evidence is nonetheless required to enable a family court judge to make an Order. If a deemed admission of allegations set out in the originating process were sufficient in family matters as contemplated by Rule 19.02(1)(a) of the Rules of Civil Procedure, Rule 23(22) regarding affidavit evidence at an uncontested trial would not exist. The content of Rule 1 (8.4) paragraphs 1 to 4 yield the same result as Rule 19.02(1)(b) of the Rules of Civil Procedure.

B. Child Protection Litigation – Unique Considerations

[11] Child protection matters are unique. In the leading Ontario Court of Appeal case of Kawartha-Haliburton C.A.S. v. M.W., Curve Lake First Nation, and OCL [3] Madam Justice Benotto guided judges of first instance in the handling of summary judgment motions in child protection. Many of her comments are applicable to uncontested hearings. She wrote: “Decades of jurisprudence … have emphasized that fairness in a child protection summary judgment motion necessitates caution and the need for the court to take into account special considerations.” [4] Quoting reasons in the decision of the Supreme Court of Canada [5], Her Honour noted further:

The interests at stake in the custody hearing are unquestionably of the highest order. Few state actions have a more profound effect on the lives of both parent and child. [6]

-and-

As well as affecting women in particular, issues of fairness in child protection hearings also have particular importance for the interests of women and men who are members of other disadvantaged and vulnerable groups, particularly visible minorities, Aboriginal people, and the disabled. [7]

[12] Counsel for the Society pointed out that most summary judgment motions are brought in cases where at least one Respondent parent has filed materials of some kind, even if they are stale-dated. In contrast, Respondent parents are only noted in default where no responding materials have been filed. While certainly a failure or inability to participate in the litigation speaks to a parent’s level of interest in the case, and by extension may suggest a reduced level of interest in the child’s life, I am mindful of the comments of Mr. Justice Stanley Sherr of the Ontario Court of Justice in Children’s Aid Society of Toronto v. B.B. [8]:

The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make determination.

[13] The same can be said for the order sought at an uncontested hearing and the evidence supporting such important decisions. I therefore conclude that, while the scheduling approach may be different, the juristic approach to an uncontested hearing in a child protection matter must be consistent with the approach taken on motion for summary judgment.

[14] The Court of Appeal’s direction with respect to the unique approach to be taken on summary judgment motions in the child protection context was set out at paragraph 80 of Kawartha-Haliburton C.A.S. as follows:

To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
2. The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[15] I would adjust these principles to fit the “uncontested hearing” thus:

1. In determining whether to make the order sought by the Society where the Respondent parents have been noted in default, the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
2. The burden of proof is on the Society, who must demonstrate that the order sought is in the child’s best interests with sufficient evidence to allow the court to give reasons for its decision under section 97 (d) of the CYFSA.
3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence at an uncontested hearing that would be inadmissible at trial.
4. If a self-represented Respondent parent appears at the uncontested hearing, even where he or she has failed to file any materials, judicial assistance must be provided. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[16] I note that the above order is intended to reflect the order in which the directives are listed in Kawartha-Haliburton C.A.S., and is not intended as a sequential flow of one principle into the next.

III. Applying Kawartha-Haliburton C.A.S. to this Uncontested Hearing

[17] Turning to the specifics of this matter, I note that K. M. U. does not have Indigenous heritage and that neither Respondent parent appeared at the hearing (and thus I was not tasked with providing assistance). No further discussion of those two principles is necessary in this particular case. I propose to note any evidentiary concerns next, and then apply the statutory tests to the admissible evidence to determine whether the Society has met its burden of proving that the order sought should issue.

A. Evidentiary Concerns

[18] As noted above, three Affidavits were filed in the name of the Family Worker, Ms. Tatton. As tends to be a habit in Society affidavit materials, Ms. Tatton attests in each of the three Affidavits that she has “reviewed the records of the Society and verily believe [their content] to be true.” This approach may be simpler from the Society’s perspective in generating materials, but it creates complications for the court in screening carefully to eliminate inadmissible evidence. Frankly, the Society should abandon this habit. Unless it is a clear situation wherein the maker of the record is unavailable or the record is a business record and has been served in accordance with the Evidence Act requirements, the document being tendered by the Society should come into evidence via its maker (or, depending upon the document, some other person having direct knowledge of its creation).

[19] In reviewing the evidence, it is important to understand the interplay between Section 35 of the Evidence Act, R.S.O. 1990, c. E.23 and Section 93 of the CYFSA.

[20] Section 35 of the Evidence Act, R.S.O. 1990, c. E.23 reads:

35 (1) In this section,

“business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise;

“record” includes any information that is recorded or stored by means of any device.

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days’ notice of the party’s intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same.

(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.

(5) Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged.

[21] Section 93 of the CYFSA reads:

93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and (b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

(2) In a hearing under subsection 90 (1), evidence relating only to the disposition of the matter shall not be considered in determining if the child is in need of protection.

[22] I note that the Society did not serve Ms. Tatton’s most recent Affidavit, dated May 26, 2020, upon either of the Respondent parents as they had both been noted in default months earlier. Where all other parties are noted in default, it is unnecessary to serve notice under the Evidence Act of the intention to tender business records. However, a failure to actually tender the business record into evidence (here, by way of appending same as an exhibit to the worker’s affidavit) prevents the required judicial scrutiny and thus renders evidence regarding the record presumptively inadmissible. Wherever the affidavit contains reference to a purported business record made by someone other than the affiant and the record is not entered into evidence, I have disregarded the information purportedly contained in the business record. One example is found at paragraphs 19 and 20 of Ms. Tatton’s affidavit of March 13, 2020 wherein Ms. Tatton references email exchanges between the Respondent Mother and another Society staffperson but fails to attach the email chain as an exhibit. Where a record is not appended as an exhibit to the affidavit but is quoted in its entirety, I have given the Society the benefit of the doubt and have admitted the contents as recited in this particular care. Having said this, I would caution the Society that there may be instances where the meta-data associated with the document that has not been tendered becomes relevant, in which case the Society should expect that the quoted content will be rejected by the court if an objection as to admissibility is raised on the basis that the evidence is incomplete.

[23] The court must screen the business record carefully wherever it is entered into evidence. As Justice Sherr pointed out, the existence of a business record does not render the hearsay contained therein automatically admissible. [9] Opinion evidence and “double hearsay” (where the maker of the record includes observations that are not his or her own) are two examples of material sometimes contained within business records presented in child protection litigation which the Court must diligently screen out of the evidence to be relied upon. Justice Sherr incorporated the concept and section 93 of the CYFSA into his overall analysis (at paragraph 15 of his reasons).

[24] In applying Justice Sherr’s test, it is my view that his Questions #2 and #3 should be applied to all documents, whether tendered as business records under the Evidence Act or as statements relevant to the proceeding regarding past conduct of a person toward a child under the CYFSA. I would thus re-order Justice Sherr’s questions as follows:

1. Is it a proper business record under section 35 of the Evidence Act, following the criteria set out in that section?
2. If it is not admissible as a business record, is it admissible as evidence of past parenting?
3. Is the evidence within the business record otherwise admissible? Does it contain inadmissible opinion or second-hand hearsay?
4. Is the evidence relevant? In asking this, I addressed: a. Does it achieve threshold reliability? b. Does the probative value of the evidence exceed the prejudicial effect of its admission?

B. The Screened Evidence

[25] Having said all of this, no actual business records are appended as exhibits to Ms. Tatton’s three affidavits. Although one might have expected to see the medical records for Mother and Baby K. M. U. (and indeed perhaps for Father who is alleged to have spent time in hospital as a result of mental health concerns), the only exhibits are letters authored by Ms. Tatton and sent to the parents on various occasions. As Ms. Tatton was the author of those documents, they do not need to satisfy either section 35 of the Evidence Act or section 93 of the CYFSA to be admissible.

[26] In exercising my screening function, then, this leaves the issues of “double hearsay” and inadmissible opinion evidence. I confirm that I have not relied upon evidence set out in the affidavits which trigger either of these concerns. For clarity, I rely upon the following facts as being both relevant and admissible in addition to the facts set out under the heading “Procedural History” above:

a. Ms. Tatton has worked with the Society since May 25, 1999 and has been this family’s worker since November 8, 2018. b. On February 11, 2019, Baby K. M. U.’s older sibling was removed from the Respondent parents’ care and brought to a place of safety. On April 26, 2019, an Order for Temporary Society Care for six months was granted regarding this older child. On June 4, 2020, such order was extended for four additional months in the best interests of that child. Parents’ access with that child is in the Society’s discretion. c. Ms. Tatton has communicated continuously with both parents in person, by telephone and in writing to describe the Society’s child protection concerns and in efforts to connect them with community resources to address such concerns. d. Respondent Father failed to complete the “Caring Dads” program; failed to comply with the terms of his probation order (which arose in part from violence between the parents); and failed to engage meaningfully or at all with the Society. e. On December 1, 2019, Mother’s landlord reported to the Society that Mother had given birth. Baby K. M. U. and Mother were brought to Grand River Hospital by first responders and the child was placed in the Neonatal Intensive Care Unit. f. Respondent Mother was unaware that she was pregnant and thus received no prenatal care. As of December 1, 2019, Respondent Mother had no plan to care for Baby K. M. U. and had no residence after December 16, 2019. On December 17, 2019, Respondent Mother told Ms. Tatton that she had not yet found a location where she could reside with the two babies. g. On December 5, 2019, being the day upon which Baby K. M. U. was scheduled to be discharged from hospital, she was placed in the Society’s care on a temporary without prejudice basis. h. Respondent Father has not communicated any plan to care for Baby K. M. U. to the Society. i. Although kinship options were explored and Respondent Mother told Ms. Tatton that she had “a lot of other relatives who want to be [K.M.U.’s] grandma,” no family member put forward a plan of care for either child. j. Respondent Mother’s last visit with K. M. U. was on January 7, 2020. Respondent Father’s last visit with K. M. U. was on December 11, 2019. k. Ms. Tatton last spoke with Respondent Father on December 18, 2019 while he was at Grand River Hospital regarding mental health concerns and suicidal ideation. Ms. Tatton does not know his whereabouts. l. Ms. Tatton and her colleague, Ms. Darlene Forsyth, continued to reach out to Respondent Mother via email as Respondent Mother did not have a telephone. Visits between Respondent Mother were changed from three times weekly to twice weekly in an effort to address Respondent Mother’s difficulty getting to the Society’s access location. Respondent Mother was advised that failure to attend could result in the suspension of visits. m. Visits between Respondent Mother and Baby K. M. U. were suspended for non-attendance on February 4, 2020. n. On February 18, 2020, Ms. Tatton met with Maternal Grandmother and Maternal Aunt to discuss the situation and schedule a family planning meeting. That same day, Ms. Tatton advised Respondent Mother about the meeting. The following day, the Respondent Mother responded by email and was offered an in person meeting on February 19th which she did not attend. On February 20th, Respondent Mother asked to switch workers and was offered an appointment on February 24th at 11:30 a.m. to discuss the situation further. Respondent Mother did not attend that appointment. o. On February 28, 2020, Ms. Tatton advised Respondent Mother of the family planning meeting taking place on March 2, 2020. Neither parent attended, but Maternal Grandmother and Maternal Aunt were in attendance with Mother’s cousin. Kinship planning was actively discussed and efforts to assess possible kinship plans continue to date. p. On March 25, 2020, Respondent Mother emailed Ms. Tatton asking to see Baby K. M. U. She did not respond to Ms. Tatton’s reply email asking to first speak by telephone. q. On April 23, 2020, Ms. Tatton emailed Respondent Mother asking to speak by telephone and has received no response.

C. Conclusions

[27] For clarity, no relative of Baby K. M. U. has put forward any plan of care to the court at this time. In reviewing the Society’s Plan of Care, expectations placed upon the Respondent Parents appear sensible having regard to the child’s very young age and vulnerability. It is undisputed that neither parent has a fixed place of residence, and thus the Society cannot determine the suitability of accommodations for a young baby. In the 6 ½ months that have elapsed since K. M. U.’s birth and immediate apprehension, neither parent has been able to prioritize her needs. Indeed, there is no evidence that either parent has made any effort whatsoever to ready themselves to parent K. M. U. There is no question that K. M. U. is in need of protection and that she cannot be adequately protected whilst in the care of either of her parents (having been removed from her mother’s care on December 5, 2019). The Society has met its burden of proof based on the admissible evidence. I therefore find that K. M. U. is in need of protection under sections 74(2)(b)(i) and 74(2)(b)(ii) of the CYFSA and that it is in her best interests to be placed in interim Society care for a period of six (6) months under section 101(1)1 of the Act. Unfortunately, there is no less disruptive alternative available for this child at this time, although kinship plans continue to be explored.

[28] Based on all of the foregoing, Final Order to go in accordance with draft signed today.

J. Breithaupt Smith, J.

Released: June 15, 2020

APPENDIX “A” – RELEVANT STATUTORY PROVISIONS

Child, Youth and Family Services Act, 2017 (S.O. 2017, c. 14, Sched. 1)

74(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, i. failure to adequately care for, provide for, supervise or protect the child, or ii. pattern of neglect in caring for, providing for, supervising or protecting the child;

74(3) 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) …; 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.

90 (1) Where an application is made under subsection 81(1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 101.

90 (2) As soon as is practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(a) the child’s name and age; (b) whether the child is a First Nations, Inuk or Métis child and, if so, the child’s bands and First Nations, Inuit or Métis communities; and (c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.

97 (1) Where the court makes an order under this Part, the court shall give,

(a) a statement of any terms or conditions imposed on the order; (b) a statement of every plan for the child’s care proposed to the court; (c) a statement of the plan for the child’s care that the court is applying in its decision; and (d) reasons for its decision, including, i. a brief statement of the evidence on which the court bases its decision, and ii. where the order has the effect of removing or keeping the child from the care of the person who had charge of the child immediately before intervention under this Part, a statement of the reasons why the child cannot be adequately protected while in the person’s care.

97 (2) Clause (1)(b) does not require the court to identify a person with whom or a place where it is proposed that a child be placed for care and supervision.

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

101 (7) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the child’s care and supervision; (b) reasonable terms and conditions on, (i) the child’s parent, (ii) the person who will have care and custody of the child under the order, (iii) the child, and (iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and (c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

Footnotes

[1] Being in Form 33B.1 for Respondent parents in child protection matters per Rule 33(7)(c.1)(i). [2] Rule 10(5) of the Family Law Rules. [3] 2019 ONCA 316 (“Kawartha-Haliburton C.A.S.”). [4] Kawartha-Haliburton C.A.S., supra, at paragraph 64. [5] New Brunswick (Minister of Health and Community Services” v. G.(J.), 1999 SCC 653, [1999] 3 S.C.R. 46. [6] Kawartha-Haliburton C.A.S., supra at paragraph 65 quoting New Brunswick (Minister of Health and Community Services” v. G.(J.), 1999 SCC 653, [1999] 3 S.C.R. 46 at paragraph 76. [7] Kawartha-Haliburton C.A.S., supra at paragraph 68 quoting concurring reasons of Madam Justice C. L’Heureux-Dubé in New Brunswick (Minister of Health and Community Services” v. G.(J.), 1999 SCC 653, [1999] 3 S.C.R. 46 at paragraph 114. [8] 2012 ONCJ 646 at paragraph 25. [9] Children’s Aid Society of Toronto v. L.L., J.Z. and A.B., 2010 ONCJ 48 (O.C.J.).