COURT FILE NO.: FC-15-118-02
DATE: 20220124
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Durham Children’s Aid Society
Lana Pryce, for the Applicant
Applicant
- and -
G.S.
David Tobin, for the Respondent mother
Respondent mother
- and -
T.A.
Sandra Grant, for the Respondent father
Respondent father
HEARD: January 18 and 20, 2022
RELEASED: January 24, 2022
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.
JUSTICE ALEX FINLAYSON
PART I: NATURE OF THIS DECISION
[1] The Durham Children’s Aid Society (the “Society”) commenced this protection application and brought this matter before the Court on motion initially returnable on January 18, 2022. One of the four bases upon which the Society seeks a finding that an 8 year-old child named G. is in need of protection, is an allegation that she is at risk of sexual abuse or sexual exploitation by her father.
[2] On January 18, 2022, the Society sought an order pursuant to section 94(2)(b) of the Child, Youth and Family Services Act, 2017 (the “CYFSA”) placing G. in the “joint temporary care of her parents” with G.’s “primary residence” to be with the mother on various terms and conditions. The Society also sought an order suspending the father’s parenting time (equal parenting time as per the Order of Nicholson J. dated December 20, 2018) pending the completion of a joint police and Society investigation.
[3] The Society’s Notice of Motion states that at the conclusion of the investigation, “if there are no criminal restrictions”, then the Society will assess the situation and “if needed build in a safety plan which may include supervised access a minimum of once per week for a minimum of one hour per visit”. The Notice of Motion states that the Court should make an order that parenting time will take the child’s views and wishes into account, as well as any “treatment recommendations”. Paragraph 3 of the Notice of Motion sates that the Court should order that “changes to the level of supervision, frequency, duration, place of access, supervisor of access if any, method of access, shall be as arranged by the Society”. And finally, there is a request to appoint the Office of the Children’s Lawyer, pursuant to section 78 of the CYFSA.
[4] The matter in which the Society brought this matter before the Court was highly irregular, and very problematic. After setting out in its written documentation some of the history of this family’s past child welfare involvement (that was lacking in important details), the Society told the Court very little information about the current protection concerns. What it chose to tell the Court, and the parents, in its documentation was vague and non-specific. But there was just enough information put before the Court to raise alarm bells.
[5] Towards the end of its initial affidavit material, the Society said that because there is an ongoing police investigation, it would be “withholding the information until the joint investigation is completed”. The Society did not point the Court to any legal authority for it to have proceeded in this manner on January 18, 2022. On January 20, 2022, the Society conceded that it had made a mistake.
[6] Fortunately, the parents have already retained experienced counsel and both counsel were present on January 18, 2022. There is already a Motion to Change Nicholson J.’s parenting order pending before this Court. There had already been a motion about whether the child could travel to Florida over the Christmas holiday in 2021, in that proceeding too, although the father was unrepresented at it.
[7] On January 18, 2022, the father’s new counsel, Ms. Grant, told the Court of the very difficult position in which she and her client found themselves. In short, they were unable to respond to the Society’s motion. Ms. Grant also submitted that the Society had failed to meet its onus under section 94(2) of the CYFSA and said the motion should be dismissed. She also submitted that the Court lacked jurisdiction to even hear this matter, as the Society failed to bring the case before the Court within five days of the child being taken to a place of safety.
[8] The mother is the parent with whom the Society proposes the Court should place the child in this proceeding. Even the mother’s counsel fairly conceded that the manner in which the Society chose to proceed was problematic. After having heard Ms. Grant’s submission that the motion should be dismissed, Mr. Tobin asked for an opportunity to have his client file evidence of her own, to address the gaps in the Society’s material and to prop up the evidentiary basis underlying the Society’s motion.
[9] For reasons that I will explain, I adjourned this matter for two days, to January 20, 2022. On a without prejudice basis, I made a two-day order placing the child in the care of the mother, and suspending the father’s parenting time. I ordered the parties to appear before me on January 22, 2022. Not knowing fully the nature of the protection concerns or what exactly the Society believed the impact of additional disclosure on the police investigation would be, I told the Society to appear before me on an ex parte basis on January 20, 2022. I wanted to give the Society an opportunity to provide more fulsome evidence to the Court, to justify its chosen course of conduct, and to make submissions about the proper procedure to be followed.
[10] Father’s counsel said she wanted to file an affidavit about the background of this case, for context. I permitted the father to do so.
[11] For the January 20, 2022 appearance, the Society filed a more fulsome affidavit and a 14B Motion seeking the same Orders sought on January 18, 2022, now on an ex parte basis. Initially at the outset of the appearance, the parties and all counsel were present. Ms. Grant orally provided some updated information to the Court. For example, the father learned that the police investigation had concluded, and the father had not been charged.
[12] The Court then heard from the Society’s counsel while the parents and their counsel waited in a breakout room. The Society said it was now prepared to serve the parents with its material as the police investigation was over. When the parties and counsel returned to the virtual court room, the Court advised it would hold the matter down to give the parties an opportunity to review the material.
[13] Upon resuming later in the day, the father once again asked that the Society’s motion to be dismissed on its merits. During the submissions, I was told that the Society might be contemplating a withdrawal of the proceeding. The Society said it wished to assess the situation further and needed a few days to do so. I reminded the parties that the Court’s permission is required if there is to be a withdrawal. I otherwise rescheduled the temporary care and custody hearing to proceed one week later, on January 27, 2022. I continued the two-day placement order that I had made on January 18, 2022, but on consent, I made a new order permitting the father to have parenting time, to be supervised by a third party in the interim.
[14] For the benefit of the parties, during the brief period of time when the Society appeared before the Court on an ex parte basis, there were no substantive discussions about the merits of this case. The discussion was about the procedure by which this matter had come before the Court. The Society gave the Court little to no submissions justifying the manner in which it had brought this matter to Court, although counsel did concede that the Society ought to have proceeded differently. The Society made little to no submissions about whether it had the legal authority to continue withholding information from the parents by not serving the new material. Because of the conclusion of the police investigation and the Society’s new position taken that day, the latter issue was moot. The Society also made very few submissions about the applicability of the ex parte rule in this context either.
[15] Nevertheless, in this decision, I intend to address three issues in advance of the return of this motion:
(a) whether there was a legal basis for the Society to withhold information/evidence from the parents, and the Court, about the allegations, in the first place;
(b) whether a children’s aid society may proceed with a motion under section 94(2) on an ex parte basis, pending the outcome of a police investigation. Although this issue is now moot, it would not have been had the police investigation not concluded and had the Society maintained its January 18, 2022 position. It is important that guidance on this be given for future cases; and
(c) I intend to provide some brief written reasons as to the evidentiary and legal basis on which the Court made the two-day temporary without prejudice order on January 18, 2022, and then the further temporary without prejudice order on January 20, 2022, until the return of this matter on January 27, 2022.
PART II: BACKGROUND
A. What the Society Disclosed (And Did Not Disclose) In Its Initial Court Documents
(1) Why The Child Was In Florida
[16] The incident that led to these proceedings was first raised when the child was in Florida during the Christmas, 2021 holiday. But the Society did not even explain to the Court fully in its court documents why the child was in Florida. The Court fleshed that out during submissions.
[17] During submissions on January 18, 2022, the Court learned, mostly through questions of counsel, that:
(a) The governing parenting order prior to the commencement of these child protection proceedings was that of Justice Nicholson dated December 20, 2018. Among other things, on consent, the order provided for “joint custody” (now joint decision-making), a dispute resolution mechanism, and a shared parenting schedule; [^1]
(b) The mother has since married a man who lives in Florida;
(c) The mother commenced a Motion to Change at some point in 2021 seeking to relocate with the child to Florida; and
(d) The mother brought a motion to travel with the child to Florida for the Christmas holiday in December, 2021. The motion came before Hughes J. Hughes J. convened a case conference and the issue settled with the child being permitted to travel during part of the holiday.[^2]
(2) The Summary of the Prior Protection Proceedings in Ms. Ibbotson’s Affidavit sworn January 17, 2022
[18] Erika Ibbotson is the “Family Services Worker, Intake” for this family. Her affidavit sworn January 17, 2022 states that she assumed carriage of this matter only on January 10, 2022. It appears that by the time this case came before this Court, Ms. Ibbotson may have only known this family for 8 days.
[19] In her affidavit, Ms. Ibbotson sets out a history of child welfare involvement dating back to June 1, 2015. While the Court might assume Ms. Ibbotson reviewed prior case notes and records, most of her entries in the affidavit fail to identify the source of her information and belief.
[20] Ms. Ibbotson’s affidavit reveals that the Society’s first involvement with this family concerned allegations of family violence, not allegations of sexual abuse. Later in 2015, the mother made further allegations, some of a sexual nature, that resulted in a criminal investigation by the Sexual Assault and Child Abuse Unit of the police. In his affidavit sworn January 20, 2022, the father says that the mother only made these allegations after she heard a judge say at a step in the prior protection proceedings that there were no allegations that the father had harmed the child. In any case, a shelter worker also reported around this time that she had heard the child make certain statements of a sexual nature, implicating the father.
[21] The Society launched the first protection application in December of 2015. The Society sought similar orders in 2015 as those now sought by it. According to Ms. Ibbotson’s affidavit, back in 2015 when the Society launched the prior protection application, there was also a pending criminal investigation. Ms. Ibbotson’s affidavit is silent as to whether the Society then withheld information in 2015, too.
[22] According to Ms. Ibbotson’s affidavit, the child was initially placed with the mother and the father’s parenting time was suspended during the criminal investigation. Dr. Fountain became involved somehow (not explained) to prepare “a report” in this matter. The report was not given to the Court. The affidavit says that Dr. Fountain found that the child was “overly attached to her mother” and “estranged from her father” and that there was no way to tell whether the child’s alleged behaviours were the result of trauma or “reflecting her mother’s psychological stress”.
[23] Ms. Ibbotson then deposes that between May 2016 and May 2017, the parents followed some kind of a plan laid out by Dr. Fountain (the plan is not described in the affidavit). Ms. Ibbotson says that the mother continued to report concerns that the child had various issues, including allegations that the child was being sexually abused by the father. There is some detail in the affidavit about some of the allegations, who was involved in various investigations, and how they were investigated.
[24] Then, at paragraph 22 of the affidavit, Ms. Ibbotson states that by May 24, 2017, the Society was taking the position that the child should now be placed with the father under a supervision order, and that the mother should have supervised clinically managed access and undergo a psychiatric or psychological assessment. Two days later, the Society amended its protection application. The affidavit says that orders for a placement with the father and the supervised access referred to above were “put into place on a temporary basis” that day too. The affidavit does not actually explain why the Society changed its position, nor how it obtained the new orders on two days’ notice. The Court here is left to draw its own conclusions and speculate.
[25] The next piece of information that Ms. Ibbotson shares is that the mother was diagnosed with depression and anxiety in November of 2017 and prescribed some medication. A named doctor (qualifications not specified) apparently “monitored her mental health, and had no concerns with [the mother] following her treatment plan.”
[26] On November 3, 2017, the Court found the child in need of protection, placed the child in the care of the father under a six-month supervision order, and ordered “graduated access” to the mother. The process by which that occurred is not detailed in the affidavit, nor is the factual basis for the finding and the disposition. If the result was achieved on consent for example, then that information could have been easily supplied to this Court by filing a copy of the Statement of Agreed Facts then signed by the parties, but that too was not provided to this Court for this motion.
[27] Next in the affidavit is some information that between November 20, 2017 and February 5, 2018, the mother went to psychotherapy with another named doctor, and there were some kind of restrictions on the parents having contact with each other. There is reference to a probation officer supervising the father and saying that he was participating in the Partner Response Program. The father apparently reported to the Society that he didn’t want the mother changing the child during supervised access, because of “the rash incident” on January 30, 2018. How the father ended up with a probation officer, and what exactly “the rash incident” was, is not described by Ms. Ibbotson. In the father’s affidavit of January 20, 2022 subsequently filed, he explains that he was charged with some 11 crimes, and he plead guilty to one count of assault.
[28] Next, Ms. Ibbotson’s affidavit says that the mother generally behaved appropriately during the supervised access visits that followed, and the parents each completed some parenting courses. There were some other issues that Ms. Ibbotson vaguely described.
[29] In March, 2018, the Society commenced a Status Review application for a further six month supervision order. Even though Nicholson J.’s detailed order was made on December 20, 2018, Ms. Ibbotson says the parents were referred to successful child protection mediation in January 2019. The timing of all this is confusing. In any event, Ms. Ibbotson says that after the parents obtained the Order of Nicholson J., these prior protection proceedings were terminated, as were all previous orders.
(3) The Society’s Current Involvement Summarized in Ms. Ibbotson’s Affidavit sworn January 17, 2022
[30] Regarding the events leading up to this current application, Ms. Ibbotson’s affidavit then says:
(a) Mother called the Society on December 29, 2021 reporting concerns of a “mark” on the child after the father’s visit;
(b) Mother took the child to a hospital in Florida;
(c) The Department of Children and Families in Florida called the Society on January 4, 2022 to report that the child had been seen at a hospital in Florida and that the hospital reported a “concerning mark”;
(d) The Department of Children and Families in Florida advised that it would not investigate the matter because the family resided in Canada and would be returning to Canada on January 7, 2022;
(e) Ms. Ibbotson interviewed the child in the mother’s home on January 10, 2022. There is no information in the affidavit about how the interview was done;
(f) Based on the child’s “disclosures”, Ms. Ibbotson consulted with the Durham Regional Police to initiate a joint investigation;
(g) On January 10, 2022, Ms. Ibbotson told the father he could not have contact with the child. Initially the father did not consent. However, he then provided his consent for a “one-day reprieve to the CLRA order” according to Ms. Ibbotson. Ms. Ibbotson sent the father a text message telling him he had “the right to obtain a legal consult regarding his consent”; and
(h) The Society’s and the police’s joint investigation began on January 10, 2022. The child was interviewed by a Detective Kavanagh on January 11, 2022. There is no other information about that interview in the affidavit.
[31] At paragraph 44 of the affidavit, Ms. Ibbotson writes, “[t]here is an ongoing criminal investigation and as such the Society is withholding the information until the joint investigation is completed.” She does not explain why that was necessary given that the child was already interviewed twice. She does not explain who made this decision either. Was it the Society’s decision, was this done at the request of the police, or was this a joint decision?
[32] At paragraph 46 of the affidavit, Ms. Ibbotson makes a conclusory statement that the “Durham Regional Police investigation is ongoing and father’s access/parenting time with [G.] would negatively impact the investigation”. She does not explain further why that was. She also says that the police were apparently waiting for documentation from “Florida officials”.
[33] The balance of the affidavit talks about Ms. Ibbotson giving the father a referral for 30 minutes of free legal advice, and what the Society was seeking on this motion. At paragraph 50, Ms. Ibbotson says the Society brought this matter to court “as soon as possible”, without further elaboration.
B. Ms. Ibbotson’s Affidavit Sworn January 19, 2022
[34] For the return on January 20, 2022, Ms. Ibbotson did provide a more detailed affidavit as directed by the Court.
[35] First, the new affidavit now reveals some of the names of the workers from Florida and Ontario, as well as the name of the Florida doctor.
[36] Second, the Society has a Florida police report detailing what the mother reported to the police. Ms. Ibbotson did not attach the report. She instead describes its contents in her affidavit.
[37] Third, Ms. Ibbotson describes her interview of the child on January 10, 2022. She says she interviewed the child alone, and she describes the methodology she used to conduct the interview somewhat. The child’s statements are described in paragraph 8 of the affidavit. There are statements of a sexual nature involving the father.
[38] Fourth, the January 11, 2022 police interview was video-taped, so a recording of that will exist in the hands of the police. Ms. Ibbotson watched the interview. She summarizes the child’s statements to the officer during that interview in her new affidavit. The child made a number of statements to the officer, some of which are of a sexual nature. The balance of the affidavit gives some additional information about the police interview.
[39] Fifth, at paragraph 21, Ms. Ibbotson says that an interview by the police with the father had been scheduled on January 20, 2022. However, when counsel appeared before me on January 20, 2022, the police investigation had already ended without any such interview having ever occurred. Ms. Grant advised the Court that the father’s criminal lawyer had been in contact with the police, and the father did not participate in a police interview.
C. The Society’s New Position as of January 20, 2022
[40] Beginning at paragraph 22 of the January 19, 2022 affidavit, Ms. Ibbotson purports to set out the Society’s new position, which was different from the position taken on January 18, 2022. Now she writes, “[t]he Society brought its Protection Application and Notice of Motion issued on January 18, 2022 because although [G.] having parenting time with her father maybe/is detrimental to a police investigation, it is the protection of the child and the best interest of the child that must be considered, not the best interest of a police Investigation. Ms. Ibbotson now writes, “the parent is entitled to sufficient information about the child’s disclosure.” [my emphasis added]
[41] At paragraph 24, Ms. Ibbotson says that she tried in her affidavit of January 18, 2022 to achieve “a sufficient balance between the integrity of the police investigation and, at the same time, to inform the parties of what was happening in court.” Again, it is not explained whose decision that was, that of the Society, the police, or both. She also says that she needed more information “regarding the child’s disclosure regardless of the status of the Police investigation”.
[42] At paragraph 23, the Society set outs three reasons why the father having parenting time “could/would” negatively influence the investigation. Those may very well have been good reasons to ask the Court to suspend the father’s parenting time. But those reasons are separate from and are not a justification for the Society’s earlier decision to withhold information.
[43] And finally, at paragraph 25, Ms. Ibbotson says that if at the end of the investigation there are no criminal charges, the Society would like to continue to proceed with the protection application for a period of time. Yet on January 20, 2022, the Court was then told that a withdrawal may be being discussed.
D. The Father’s Affidavit of January 20, 2022
[44] The father asked to serve and file an affidavit not fully knowing the case to which he would have to respond. He did so without having seen Ms. Ibbotson’s January 19, 2022 affidavit. He wanted the Court to have his affidavit for context. The father’s affidavit sworn January 20, 2022 fills in some of the gaps in the historical information that the Society did not provide in Ms. Ibbotson’s January 17, 2022 affidavit, it provides some additional information about what he was aware of respecting the recent events, and it provides his concerns about how this proceeding might prejudice him in the related Motion to Change, if for example there is a longer term change to the equal parenting schedule as a result of orders in this proceeding. The father tells the Court some of the circumstances surrounding the mother’s marriage to the man in Florida, some of his subsequent discussions with the mother, and some additional context about the current Motion to Change before this Court.
[45] The father says he was self-represented when he appeared before Hughes J. He says he only learned on January 18, 2022 that the mother wants to move to Florida. He now believes that the mother’s newly disclosed plan to move to Florida is important context that is relevant to the credibility and reliability of the most recent allegations. I understand from mother’s counsel that the mother will dispute the father’s statement that he just learned about the request to move.
[46] In regards to the suspension of his parenting time, the father was still self-represented on January 10, 2022 when he spoke to Ms. Ibbotson. He says she did not tell him about the specific allegations being made, nor has she ever asked to speak to him subsequently. He did however tell Ms. Ibbotson that he did not agree to the suspension of his parenting time that day. He says that Ms. Ibbotson “threatened” to take him back to Court if he did not consent. Because Ms. Ibbotson told him that she would be in contact with the police the next day, the father “agrees” that he then consented to the suspension, but only for one day.
[47] Finally, anticipating that the allegations would be sexual in nature given the tenor of the initial material filed, the father issued a blanket denial that he sexually abused the child, whether in the past or currently.
PART III: ISSUES AND ANALYSIS
A. Whether the Society May Withhold Relevant Evidence from the Parents and the Court When It Brings a Matter Before the Court
[48] In my view, the answer to this question is no. It must be given to the parents as a matter of fundamental fairness. It is also required for the Court to make a proper decision.
[49] To be clear, I am not talking about withholding evidence that may be protected by some kind of legal privilege or allowed by some other rule. I am referring to the withholding of the evidence upon which the Society intends to rely to seek an Order under section 94(2) of the CYFSA and/or which might be relevant to a parent’s response to such a motion, or more generally to the overall issues in the case.
[50] There are seven groups of legal principles that have led me to this conclusion, that a children’s aid society may not withhold.
(1) The Legislative Framework Militates In Favour of Full and Early Disclosure to the Parents and to the Court
[51] First, the legislative framework itself leads me to this conclusion. I will cite only some sections to illustrate this point.
[52] The purposes of the legislation in section 1 militate in favour of full and early disclosure of all the facts known to the Society and upon which the Society intends to rest. For example, the paramount purpose in section 1 of the CYFSA is to promote the best interests, protection and well-being of children. Some of the other purposes in section 1(2) require disclosure of information. For example, one of the purposes of the legislation is to support the family, wherever possible, on the basis of mutual consent, and based on the appropriate sharing of information in order to plan for and provide services.
[53] Soon after the CYFSA came into force, Sherr J. released the decision Catholic Children’s Aid Society of Toronto v. K.R., 2018 ONCJ 288. At paragraph 7, he gave societies some early guidance about some of their basic responsibilities under the new legislation. After referencing the paramount and other purposes of the then new CYFSA, Sherr J. told societies that as soon as practical they should be:
(a) providing timely and ongoing file disclosure to counsel for the parties and counsel for the children so that they can meaningfully participate, if they choose to do so, in a discussion about what services for the children and their family will best meet the purposes of subsection 1 (2) of the Act;
(b) assessing the strengths of the children and their family in order to determine what services can be provided to them that will build on those strengths;
(c) giving the children, where appropriate, and their family the opportunity to have input into what services should be provided to them, in a manner that best meet the purposes set out in subsection 1 (2) of the Act; and
(d) providing a clear list of expectations for the children’s family about what they need to do to have the children returned to them. This can be set out in a letter.
[54] And then, at paragraph 8 Sherr J. discussed the Court’s job. He wrote that it is the Court’s obligation to ensure that the purposes of the CYFSA are achieved. In a footnote to his decision, he said, “[t]his will be easier to do when a case is actively case-managed by one judge who can set out expectations for the parties, monitor compliance with those expectations and ensure that services are being provided for the children and their families consistent with the purposes set out in subsection 1 (2) of the Act.” To Sherr J.’s comments, I will add that it is impossible for the Court to achieve these goals unless the parents and the Court are told about the very allegations that are said to necessitate the Society’s intervention.
[55] There are also the consent provisions of the legislation. When a person is being asked to consent to something, disclosure of all of the information necessary to make the decision to consent or not, is essential.
[56] There are four requirements of a valid consent in section 21(2) of the of the CYFSA. One of those is that the person be “reasonably informed” as to the nature and consequences of the consent, and of alternatives to it. See section 21(2)(b) of the CYFSA. Another is that the person must be given a reasonable opportunity to obtain independent advice. See section 21(2)(d).
[57] On January 10, 2022, Ms. Ibbotson sought the father’s consent to suspend his parenting time. Otherwise, she said, there would have to be a court proceeding. The father gave very time limited consent to Ms. Ibbotson, for one day only, based on the limited information he received that there would be some contact between the police and the Society the next day.
[58] The amount of information that needs to be provided for a person to consent to a particular decision will be contextual. In this context, what the father was being asked by Ms. Ibbotson to do on consent is the same as what the Court is now being asked to Order. He limited information that Ms. Ibbotson shared with the father may have sufficed to secure his one-day consent (I need not find this one way or the other in this decision). But how could the father have possibly given “reasonably informed consent” to suspend his parenting time in the longer term, without having the proper information as to what was transpiring to inform his decision? And how could the father have then had a meaningful opportunity to obtain independent legal advice, if he is unable to even really tell a lawyer the full reasons for the Society’s intervention? [^3]
[59] In Children’s Aid Society of Brant v. R.P., 2019 ONCJ 649, Hilliard J. addressed the interpretation of these consent provisions in the context of a consent to a customary care agreement. At paragraph 56-58, Hilliard J. wrote:
[56] The enactment of prerequisites to valid consent in the legislation demonstrates a recognition of the power imbalance between child protection agencies and parents.
[57] The impact of state intrusion into the lives of families cannot be overstated, particularly when the state action involves the removal of children from the care of a parent.
[58] Capitulation to the circumstances of children being out of one’s care cannot be equated to ongoing consent to an agreement with children remaining in care….
[60] See also Children’s Aid Society of Brant v. C.H., 2017 ONCJ 276 paragraph 18-26.
[61] If these consent provisions are to have any meaning, then generous information (all that needed to make a fully informed decision) must be provided to a parent. And if that is required for an out of Court agreement, then as a matter of common sense, at least an equivalent amount of information would have to be given to the parties and to the Court when the Society brings the matter to Court.
[62] The final example from the legislation that I will cite, is the Court’s power to compel, on its own initiative, evidence to be given to it in a child protection proceeding: see section 92 of the CYFSA. This tool is in aid of the well-known principle that in cases concerning children, the Court needs comprehensive evidence about a child, in order to make the right decision. Where a children’s aid society chooses to withhold, the Court can order otherwise.
(2) The Best Evidence Available Should Be Put Before the Court For A Hearing
[63] Second, more examples of the Society’s obligation to fully disclose can be found in the sections that govern the hearing itself and the applicable case law setting out what is required by way of evidence at such a hearing.
[64] Pursuant to section 90(1) of the CYFSA the Court must hold a hearing soon after the proceeding begins. In the case of a child being taken to a place of safety, that hearing must occur within 5 days. See section 89.
[65] It is well known that at a hearing under section 94(2) the comes on five days after a child’s removal, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to a parent who had charge of the child before intervention, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T. 2000 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.).
[66] Even if there has not been a removal, once the matter is brought before the Court and a hearing is scheduled, the Court must make under section 94(2) as a condition of then adjourning the hearing. See Children’s Aid Society of Algoma v. K.M., 2021 ONCJ 680 paragraph 4, 13, and 43.
[67] At either kind of hearing there must of course be some evidence.
[68] Societies have an obligation to provide balanced affidavits. At paragraph 55 and 56 of Children’s Aid Society of Toronto v. B.H. and M.P., [2007] O.J. No. 2446 (Ont. C.J.), Sherr J. wrote the following:
[55] This court has to make a major decision for these children and their families that will have a huge and permanent impact on their lives. The society is a powerful institution and with such power comes great responsibility. The goal of a state litigant is justice. It is not about winning. The society's role in presenting a case to the court is not merely to present evidence that justifies their position, but to present all relevant and probative evidence, including that not favourable to their position, to ensure that the best possible decision for children can be made. It is important that society workers understand this. Society counsel can only put forward the evidence that the workers provide to them. It is important to educate the workers about their responsibility to provide a balanced perspective of the case to the court and not only provide information that justifies their position. It is not good enough to say that it is the job of the parents' lawyers to produce this evidence. Parents' counsel (if the parties even have counsel) rarely have the resources of the society and should not have to chase after this information. Child protection trials are not, and should not, be a game.
[56] From a practical perspective, this made the evidence of the society workers less reliable. How could I fully trust that they were providing me with the full context when they were giving me their evidence, when they chose to present their negative observations in such a disproportionate manner? This did not mean that I rejected their evidence, but it did mean that I treated it with more caution.
[69] In Children’s Aid Society of Toronto v. M. (A.), 2002 45665 (Ont. C.J.), Katarynych J. also discussed the caliber of evidence required, and in so doing, she addressed different but also important issues. Katarynych J. accepted that the evidence available may change over the lifespan of a child protection case. Nevertheless the thrust of Katarynych J.’s important decision is three-fold. First, the evidentiary record may be less developed at the beginning, but it will become more developed as the case unfolds. Second, attention to detail is necessary at all points to ensure that whatever the evidence is, it is admissible according to the statutory standard. And third, that includes at the outset of the case. There must still be some admissible evidence, however undeveloped it may then be.
[70] At paragraph 16, Katarynych J. wrote that often at the early stage of a case the evidence may be based merely on a belief about risk. However, whether there are reasonable grounds to believe a child is in need of protection is an “ever-evolving question.” The investigation is “seldom completed at the time of the motion hearing. The Society’s evidentiary case reflects what the investigation has yielded to that point in time”. What appears to be credible and trustworthy information and an early stage may be found later to be speculation, or conjecture.
[71] For example, at paragraph 58-72, Katarynych J. wrote that “adjudication of an interim custody motion is not an exercise in blind faith”. She wrote that, “the society’s powers, substantial as they are, are not unbridled. Those powers are limited to those articulated in the litigation. The society is before the court so soon after an intervention to provide a sober second look at whether the intervention has been faithful to the criteria of the statute. It is a check on the exercise of the intervention power.”
[72] Katarynych J. wrote that the Court requires “evidence” not “supposition, conjecture, speculation, leaps of hyperbole, innuendo, gossip and unqualified opinion where qualified opinion is required”. She wrote that at an early stage of the case, the evidence can be expected to include information obtained from others that is then advanced through a social worker’s affidavit as “credible and trustworthy”.
[73] Likewise, at paragraph 15 and 16 of Children’s Aid Society of Algoma v. H.P, 2011 ONCJ 679, Kukurin J. wrote the following about the evidentiary standard and the changing nature of the evidence as a case unfolds:
[15] My view is that this relaxed [credible and trustworthy] evidentiary standard was intended to compensate for the requirement on a society to have child protection applications before the court within five days of an apprehension. In many cases, it is extremely difficult, if not impossible, to have evidence that meets a more conventional standard before the court in such a short time. When combined with the requirement on the court to make some kind of temporary care and custody order on each date that the child protection case is before the court, there is some logic to legislating a reduced evidentiary standard, at least to apply in the early stages of a case.
[16] However, as a case ages, and the time pressures are relieved somewhat, the applicability of this looser evidentiary standard becomes more difficult to justify. As time marches on, evidence that was earlier admitted and acted upon as being credible and trustworthy may become less so. Typically, this happens when the initial evidence is hearsay in nature, or on occasion, double hearsay. It certainly would be the case where responding evidence is filed that contradicts earlier evidence, especially if such earlier evidence was not firsthand.
[74] While these cases certainly stand for the proposition that the evidence may be more limited at the outset and be developed more as the case unfolds, nowhere in these decisions do seasoned child protection judges like Katarynych J., Kukurin J. and Sherr J. approve of a society withholding information from the parties and from the Court until a later time.
(3) The Family Law Rules and Good Case Management Practices Militate In Favour of Full and Early Disclosure to the Parents and to the Court
[75] Third, the Family Law Rules and good case management practices militate in favour of full and early disclosure. The primary objective of the Family Law Rules, which applies in child protection proceedings, is to deal with cases justly. Among other things, that means a procedure that is fair to all parties. See rule 2(3).
[76] The Court is required to apply the rules to promote the primary objective, and the parties and their lawyers are required to help the Court do so. See rule 2(4).
[77] Like with its obligations in relation to the purposes of the legislation cited by Sherr J., the Court cannot achieve the primary objective of the rules, and the parties and counsel cannot help it do so either, if relevant information is withheld by the Society.
(4) Charter Principles Militate in Favour of Full and Early Disclosure
[78] Fourth, in New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, the Supreme Court held that section 7 of the Canadian Charter of Rights and Freedoms extends beyond criminal law, and can be engaged in child protection proceedings. The Supreme Court found that the state’s application for custody of a child was a prospective violation of the mother’s section 7 rights to security of person, and the restriction on her security of person would not be in accordance with the principles of fundamental justice if she was required to proceed without counsel. See also Catholic Children’s Aid Society of Toronto v. J.R.C., 2015 ONCJ 729 paragraph 48.
[79] The Supreme Court’s decision concerned whether state funded legal representation was required to ensure compliance with section 7. But there is much other helpful commentary in the decision, about the principles of fundamental justice require, not just legal representation.
[80] The principles of fundamental justice “are to be found in the basic tenets of our legal system”. They can have both a procedural and substantive component. See R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30 at pages 63 and 70.
[81] It is well established that the Court must ensure that the process is fair. At paragraph 70-75 of New Brunswick (Minister of Health and Community Services) v. G.(J.), Lamer J. set out what is required in this respect. While again, some of that analysis pertains to whether an indigent parent should be afforded a lawyer (which is not the issue in this case before me), Lamer J. also said:
(a) There must be a hearing before a neutral and impartial arbiter at which the paramount consideration is the child’s best interests;
(b) A parent must have an opportunity to present his or her case effectively, so that the court may assess the best interests of the child based on all the relevant evidence. If a parent is denied the opportunity to participate effectively, the judge may be unable to make an accurate determination; and
(c) Protection proceedings are adversarial in nature, and the parties are responsible for planning and presenting their case. A parent must adduce evidence, cross-examine witnesses, make objections on evidentiary issues, and present legal defences “in what is to many a foreign environment, at a time when they are under significant emotional strain”.
[82] In A.M.R.I. v. K.E.R., 2011 ONCA 417, a case involving a child’s removal from Canada under the Convention on the Civil Aspects of International Child Abudcition, at paragraph 98, 120, 125 and 128, the Ontario Court of Appeal also discussed what was required to ensure a fair process. The Court answered that question in a contextual way. The Court recognized that given the “potentially life-altering effect on all interested parties”, it is “axiomatic that the courts must be vigilant in ensuring procedural fairness for all concerned.” Compliance with any governing rules and the statutory provisions is one way of doing this.
(5) There Should Be A Level Playing Field
[83] Fifth, child protection proceedings are often stacked against parents to begin with. When the Society is not fair and candid, it is deliberately creating an uneven playing field.
[84] Writing recently about the whirlwind process that follows a child’s removal from a parent, at paragraph 9-12 of Children’s Aid Society of Algoma v. K.M, Kukurin J. said this:
[9] If this 5-day limitation is not met, the court loses jurisdiction and the society has no choice but to return the child to whoever had the child prior to the child’s removal. It is, therefore, a big deal. The time constraints imposed by this section of the CYFSA do not only impact the society, but also the persons from whom the child was removed.
[10] The society arguably has the advantage in these removal applications. It physically has the chid that it has removed for up to five days, unimpeded by any statutory requirement. It can use these five days to prepare its application and its motion to bring the matter before the court. And it does, sometimes producing an affidavit in support of its motion that stretches to 300 paragraphs or more. In fairness, societies will sometimes have their materials ready to go before the 5 days are up. They generally manage to serve at least one respondent within these five days and often on the first court day.
[11] The respondents, in the meantime, are at a disadvantage. They have just had their child removed. Sometimes they know why; oftentimes they do not. They often have no lawyer. They rarely have the means to pay a lawyer and thus are left to apply for legal aid. Legal Aid Ontario seems to grant certificates to respondents in child protection matters in priority to many other matters, but it has a process that sometimes takes a week or two. If granted a legal aid certificate, the respondent still has to find a lawyer who will agree to be that person’s counsel in the case. Although a lawyer may be retained, he or she still has to respond to the society’s materials. Often these have not yet even been served on the respondent/client or have just been served. Most lawyers have their days booked weeks and even months in advance, and don’t have the time flexibility to prepare any response even if the society’s materials are available. The average lawyer also does not have the support staff that a society has to deal with the early stages of a child protection case. Dominating this entire period of (up to) five days is the emotional state of most respondents who are likely just spinning their wheels doing everything wrong and nothing right to advance their side of the case in the court.
[12] On the 5-day court appearance, the society invariably asks for an order granting temporary care and custody to someone other than the person from whom the child was removed. Occasionally, it has not even served the respondent(s) by the time the matter is brought to court. The materials before the court are only those filed by the society. The court is also handicapped at the removal hearing if the only materials before it are the society’s pleadings and the society’s evidence. It is more often than not dealing with a matter that is truly ex parte, or is on such short notice that it is tantamount to being ex parte. The gatekeeping function of the court is rarely utilized at this stage and is further attenuated by s. s.94(10):
S. 94(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.
This almost guarantees that whatever the society places before the court will be accepted as uncontradicted truth that will enable the court to make an order.
[85] This context is important. Parents in child protection already face enough barriers. Procedural fairness to them must necessarily start with full disclosure of the allegations forming the Society’s case. The parents should not be put further into catch up mode, after being left guessing about what they need to respond to.
(6) The Society Has Broad Disclosure Obligations
[86] Sixth, the Society’s broad obligation to disclose is well known. It is a Charter requirement.
[87] At paragraph 30 of Children’s Aid Society of Algoma v. B.S. 2008 ONCJ 358, Keast J. wrote:
It has long been recognized that the principles in The Queen v. Stinchcombe are applicable to child protection proceedings. In the criminal justice system, the disclosure net is cast wide, in part because of the severe consequences of many prosecutions. Child protection proceedings likewise often involve severe consequences for parents and their families. The indefinite removal of children for up to one year or the permanent removal of children are severe consequences. Thus, it is important there be a wide net and low bar for disclosure, in child protection proceedings. There is a parallel between the Crown’s role in a criminal prosecution and a society’s role involving the welfare of children. See Children’s Aid Society of Sudbury and Manitoulin v. Ginette M., Benoit M. and Ernie S., 1992 4765, 5 O.F.L.R. 121, 11 L.W.C.D. 426, [1992] O.J. No. 181, 1992 CarswellOnt 5012 (Ont. Prov. Div.), per Provincial Judge André L. Guay; and Children’s Aid Society of Peel Region v. Valerie J., 1993 5411, 44 A.C.W.S. (3d) 217, 4 W.D.C.P. (2d) 638, [1994] W.D.F.L. 042, 7 O.F.L.R. 121, 13 L.W.C.D. 206, [1993] O.J. No. 3245, 1993 CarswellOnt 4393 (Ont. Prov. Div.), per Provincial Judge Theo Wolder.
[88] The Society’s broad disclosure obligations may even impose upon the Society an obligation to bring a motion against a non-party if necessary to obtain information in the hands of others as part of the duty to disclose. See S.D.K. v. Alberta (Director of Child Welfare), 2002 ABQB 61.
[89] Now in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, the Supreme Court did say that the Crown does have discretion to withhold some information, for example to respect a rule of privilege, or to prevent impeding an investigation. There is some discretion as to the timing of disclosure. But “delayed disclosure [to avoid impeding an investigation] is not to be encouraged and should be rare”.
[90] And the Crown’s discretion as to the timing of disclosure in a criminal case is not analogous to what is before me now. When a police investigation is underway, charges have not been laid. But it would be inconceivable to suggest that an accused be forced into a criminal hearing like a trial without the disclosure. That is the equivalent of what the Society did here. It wanted to proceed to the hearing withholding evidence that it had. The discretion about timing referred to in R. v. Stinchcombe must refer to pre-trial disclosure.
(7) The Relevance of the Decisions About Production of Police Disclosure or a Crown Brief
[91] Seventh, I do accept that when access to material in the possession of the police or the Crown is sought for use in a civil proceeding, the Court does consider whether “there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information.” See D.P. v. Wagg, 2004 39048 (Ont. C.A.) paragraph 17. In practice, counsel for the Crown responding to these disclosure motions in family law cases sometimes take the position that disclosure should wait until after the completion of a trial or some other pending criminal proceeding (like a preliminary inquiry) to protect the criminal process. See for example G.L.K. v. C.L.K., 2021 ONSC 5843 paragraph 126.
[92] However, even when these arguments are made, the Court must engage in a balancing of the competing interests. I note for example paragraph 16-19 of Native Child and Family Services of Toronto v. P. (S.), 2009 ONCJ 473, where Murray J. made the following particularly apt observations:
[16] There have been protection cases in which a society has requested disclosure from police that the Crown has opposed, invoking the doctrine of public interest immunity and alleging, for example, that the disclosure will interfere with an ongoing police investigation. The MAG did not make that submission in this case. However, I refer briefly to these cases because, in them, courts have commented on the MAG’s submission in this case, which is essentially that preservation of the integrity of the criminal process a priori has a higher public interest value than the timely completion of a protection trial, a trial in which the court is provided with the evidence necessary to determine whether a child is in need of protection.
[17] For example, in Re A.J.S., 2000 BCPC 99, [2000] B.C.J. No. 2765, 2000 CarswellBC 3236 (B.C. Prov. Ct.), a child had died while in her parents’ care. The Director of Family and Child Services apprehended the remaining children. A police investigation ensued. No charges had been laid by the time the director moved for production of information from the police related to their investigation, in preparation for the protection trial. The police opposed, submitting that disclosure at this stage could prejudice their investigation. Provincial Judge B. Lynne Dollis ordered disclosure, acknowledging that this choice might mean that a guilty person escaped prosecution. She observed that that the protection trial could not proceed in any meaningful way if information was withheld from the director, saying that protecting the interests of living children was more important than punishing the guilty.
[18] In Children’s Aid Society of Algoma v. Lesa H. et al., 1996 7942, 63 A.C.W.S. (3d) 667, [1997] W.D.F.L. 672, 7 W.D.C.P. (2d) 318, 10 O.F.L.R. 36, [1996] O.J. No. 1978, 1996 CarswellOnt 1970 (Ont. Prov. Div.), Provincial Judge John Kukurin dealt with a motion for disclosure from police. A criminal trial of a father on charges that he had abused a child was scheduled to commence three months after the scheduled commencement of the protection trial, which turned on the same allegation of abuse. The police submitted that disclosure before the completion of the criminal trial would prejudice their ongoing investigation and the prosecution. They argued that “the public interest in the criminal prosecution was a more weighty consideration than a child protection proceeding”. Judge Kukurin did not agree. He observed that, although the criminal prosecution could provide sanctions for criminal wrongdoing, the decisions involved in the protection proceedings would have life-long future consequences for the children.
[19] In the instant case, the disclosure sought is relevant. There is nothing in the doctrine of abuse of process that suggests that disclosure should not be made or that it should be delayed.
B. Conclusions Respecting the Society’s Conduct
[93] The Society had no legal basis to withhold evidence from the parties and the Court. The legislation, the rules, the case law, Charter principles, particularly the principles of fundamental justice, the need for a level playing field, and the well-known principles in the case law about disclosure, ought to made it crystal clear that the Society did not have the right to proceed in manner in which it chose to proceed. The Society’s more fulsome affidavit only came later on January 20, 2022, after the Court intervened on January 18, 2022. The Court should not have had to intervene.
[94] I am aware of no decision (and the Society in this case did not provide me with one) that says a Society may withhold information only to tell the Court and the parents about it later. The Society has an obligation to put balanced information before the Court. I accept that the evidence may be less developed at the beginning of a case, and omissions can occur by accident due to timing constraints. But that is not what happened here. The Society made a conscious choice to withhold. This is clearly stated in Ms. Ibbotson’s January 18, 2022 affidavit. Omitting important context is not providing a balanced affidavit. The outright withholding of evidence is not balanced either.
[95] This is not a situation like in some cases, where allegations are already known, where temporary orders are already in place, where there is an ongoing proceeding, and prior to trial a request for disclosure of documents in the possession of the police or the Crown is made for use in the next steps in the case. This is not a situation where a lawyer for the Crown or the police then comes to Court and asks to vet and/or delay the documentary disclosure to protect the integrity of a criminal proceeding in some way. None of that has happened in this case. And even then the principles at stake in the criminal proceeding do not necessarily prevail over the interests at stake in a child protection proceeding. The criminal justice system and the child protection system achieve two different goals. One is not paramount over the other. See Children’s Aid Society of Algoma v. S.B. paragraph 16; see also Children’s Aid Society of Algoma v. D.P., 2006 ONCJ 170, substantially aff’d by 2007 39363 (Ont. S.C.).
[96] Rather, on Tuesday, January 18, 2022, the Society, on its own initiative (or perhaps in consultation with the police – I do not know), made the decision to withhold. And it did so while bringing on a legal proceeding at which it was asking the Court to make an impactful order. The information the Society had about the allegations ought to have been turned over to the parents and disclosed to the Court. It was for the police to claim investigative privilege; not the Society.
C. Whether A Society May Obtain An Order Under Section 94(2) on An Ex Parte Basis To Protect The Integrity of A Police Investigation
[97] To be clear, the Society did not bring this matter before this Court on an ex parte basis; it opted to withhold relevant evidence. From the parents’ perspectives, the impact their ability to meaningfully participate is similar. From the Court’s perspective, it was deprived of the evidence it needed to make a decision. At least if the Society had moved ex parte at the outset rather than withheld, the Court would have been made aware of more of what it needed to know.
[98] The Society did come to Court on an ex parte basis on January 20, 2022. To be clear, that occurred at the Court’s direction, given in an attempt to fix this mess that the Society had caused.
[99] Rules 14(12)(c) and (d) of the Family Law Rules provide that a motion may be made without notice if (c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or (d) service of a notice of motion would probably have serious consequences. Rules 14(14) and (15) then require a return date on notice within 14 days, and service of any order made, unless the Court specifies otherwise. Had the police investigation not come to an end by January 20, 2022 and had the Society not changed its position, the question that this Court may very well have had to then answer, is whether these rules or some other legal authority authorizes a Society to proceed ex parte.
[100] Now sometimes a first appearance in a protection proceeding does proceed without service on the parents for certain reasons (ie. for example, when there is an unsuccessful attempt at service - such as with transient parents who cannot be located)[^4]. However, in regards to whether a society may choose to hold off on service because of a pending police investigation, the Society referred the Court only to one decision when it reappeared before me on January 20, 2022. And in that decision, the Court strongly disapproved of such a practice.
[101] In Catholic Children’s Aid Society of Toronto v. M.G., 2020 ONCJ 28, Spence J. held that the Society was not authorized to delay serving a party with a protection application just because the police wanted to first interview the party. At paragraph 32-33, he wrote that, “[r]emoving a child from the care of a parent or legal guardian is serious business. It is pretty much the most intrusive action which a society can take under the Act. This is the main reason why following such a removal the matter must be brought before a court within five days to review the removal”.
[102] At paragraph 34, he wrote that, “to properly enable a court to review the appropriateness of a removal, as well as to consider whether to make any further orders, the court requires the attendance of the parties to the proceeding; in that way, the fullest possible submissions can be made to assist the court in its determination”.
[103] At paragraph 37-38, Spence J. held that the Society and the police mishandled the situation. The Society should have told the police of its duties under the legislation. The police ought not have told the Society to refrain from doing what it had a legal obligation to do.
[104] On the other hand, I have found one other decision, not referred to by the Society, in which a different approach might have been taken. Whether that is so is not entirely clear from a read of the decision.
[105] In Chritidis v. P.L.L., [2000] O.J. No. 554 (S.C.J.), a police officer brough an application before the Superior Court for an order that he not be required to disclose information in police files respecting an ongoing investigation for use in a child protection proceeding before the Ontario Court of Justice. Belleghem J. dismissed the application finding that the matter should be dealt with by the judge in the Ontario Court of Justice.
[106] In obiter, Belleghem J. did refer to a decision of Kruzick J., in which the Court held that “confidentiality of the information where real need arose such as where the police investigation in that case was ongoing and had not been concluded, took precedence over the needs of the litigant to have the results disclosed”. At paragraph 10, Belleghem J. held that Kruzick J.’s decision was “practically on all fours with the present case”.
[107] With respect, I do not necessarily agree. First, the name of Kruzick J.’s decision is not mentioned in Chritidis v. P.L.L. so I could not read it. Second, I do not know whether the case before Kruzick J. was a child protection proceeding, or some other family proceeding. As already explained, criminal justice concerns are not always prioritized over those relating to child welfare. But more importantly, in Christidis v. P.L.L., and unlike in this case now before me, it was the non-party police officer who moved to block disclosure of records during a case, not a Society that was withholding evidence from the parties and the Court that was already in its possession. The decision in Christidis v. P.L.L. seems to be to me more akin to the disclosure decisions referred to earlier.
[108] This Court was very surprised by the unusual manner in which the Society proceeded on January 18, 2022. The Court was made aware of the Society’s desire to withhold information because of the police investigation. But the Court was unaware of, and struggled to understand, what specifically the Society’s concerns were and why it believed disclosure might harm the police investigation. The Court was also reluctant to dismiss the motion outright under section 94(2) out of a concern for this child’s safety, given that there were some, albeit still vague and non-specific alarming statements in the January 18, 2022 affidavit.
[109] In that context, what this Court tried to do, in its comments to the parties on January 18, 2022, was to create a process to get the necessary information before it, but also to give the Society a chance to persuade the Court that it is proper to proceed in the fashion that it attempted to proceed. While the Court did also tell the Society to be prepared to argue whether the ex parte rule could even be used in the process that I allowed for the Society to cure its missteps, it was ultimately the Court that proposed the idea and directed the Society to return before it on an ex parte basis. Having now considered the matter further and having had the benefit of additional submissions and Spence J.’s decision, the Court may have been wrong in proceeding in that fashion. Such a process will not likely be good practice for the future. It may have been preferable on January 18, 2022, just to order the Society to prepare a proper affidavit and serve it. But I am going to stop short of making such a finding.
[110] In the end, the availability of rule 14(12) for use to obtain an initial order under section 94(2) was not argued. Nor was it argued whether rule 14(12) could be used in this fashion, if the rule conflicts with provisions of the CYFSA. See for example R. Sullivan, “Sullivan on the Construction of Statutes”, 6th ed., LexisNexis Canada, 2014 at pages 362-363. Nor was it argued whether the rule may be used, if Charter values suggest that it shouldn’t be. If in the future a society brings a different matter before the Court again like this, it should be prepared to justify its decision and to address the principles in this decision and Justice Spence’s decision.
D. The Factual and Legal Basis For the Court’s Orders of January 18 and 20, 2022
[111] The evidence before the Court on January 18, 2022 was very sparse. The Society took a risk that the Court might have dismissed its motion. However, I erred on the side of caution out of a concern for the child’s safety, having been given the limited but alarming information that I was given. I concluded that there was enough evidence to support a two-day order under section 94(2), with a direction to the Society that it fill in the evidentiary gaps immediately.
[112] The additional evidence filed for January 20, 2022 was more extensive, as it ought to have been in the first place. As of January 20, 2022, there was sufficient evidence for the Court to make the further without prejudice order for another week, until the return of this motion.
[113] I appreciate the father wanted the motion dealt with, but he has not addressed the specific allegations (through no fault of his own given the service issues). In the absence of a response from the father, and for that matter the mother wants to provide evidence too, the test under section 94(2) was met.
[114] To help remedy any prejudice to the parents caused by the Society, the Court has kept this case on an extremely tight timetable. In the end, the temporary care and custody hearing will be heard on its merits within 9 days of the matter being brought before the Court. By the time of the hearing, the Court will have already given the parties three court appearances in this short time span. The Court cleared its schedule on the afternoon of January 27, 2022 to accommodate this.
E. The Five-Day Rule
[115] The father may be arguing that this hearing is a removal hearing and that the Court is without jurisdiction when this matter returns, because of the Society’s failure to bring this matter before the Court within five days.
[116] As such, an issue may be being raised as to whether the facts of this case engage the five day rule. I direct counsel to paragraph 10 of the Society’s own Plan of Care dated January 17, 2022, in which the Society itself states it removed the child from the care of the respondent on a temporary basis. Paragraph 23 (c) of Ms. Ibbotson’s January 19, 2022 affidavit also says that the police were not able to interview the father “within the five day rule as they were waiting for information from Florida. This is no fault of father”.
[117] I request that the parties consider the impact of this evidence and where it fits into the argument. If jurisdiction is being argued, then I ask counsel to provide the Court with case law and be prepared to make submissions about how the governing statutory principles should be applied. This might include submissions about whether the child was taken to a place of safety, whether the 5-day rule, if it applies, may be extended, and any other relevant matter.
F. Disclosure
[118] At paragraph 21 and 22 of his affidavit of January 20, 2022, the father seeks historical file disclosure of the Society’s prior involvement. He also seeks disclosure regarding the joint police and CAS investigation. The father may make submissions about this on January 27, 2022, including whether there needs to be a motion scheduled to obtain the latter from the police, and if so, who should bring this motion.
G. A Request to Withdraw
[119] The Court reminds the parties that if the Society intends to seek leave to withdraw this application, whether or not it has the parents’ consent, it still requires the Court’s permission. If this is being argued, there should be case law on this point too.
PART IV: SUMMARY
[120] Although the withholding of information and the service issue resolved as a result of the quick conclusion of the police investigation, the change to the Society’s position and through the Court’s case management of this motion, the Court felt it was important to release this decision in writing, not just for these parties and this Society, but for other societies and other parents who may find themselves in similar situations.
[121] Like Justice Spence did in the case before him, this Court wishes to issue a caution that steps like this should be taken rarely, if ever. This Court gave this Society considerable latitude and an opportunity to cure its missteps. The Court tried to participate in coming up with a solution, while also trying to minimize the impact on the parents and the child pending a proper hearing. It did so out of a great concern for the child before the Court, too. The Society put the Court in the difficult position of being asked to make an order, while not being told fully by the Society what was actually happening.
[122] This Society (and other societies) need to understand that if in the future, they choose to withhold information from the Court again, the Court may very well find that the test under section 94(2) has not been met. So that is abundantly clear, that means that the protection order being sought may not be granted. And that means that a child could end up being exposed to harm from exposure to the very circumstances that the particular society chooses to withhold from the Court.
[123] I have stopped short of completely agreeing with Spence J.’s conclusion since the issue was not fully argued before me (although I gave the Society an opportunity to make arguments). If in the future a society is faced with a case that it thinks warrants an irregular approach like the one on which it tried to embark in this case, before acting it should thoroughly consider the competing interests at stake, its obligations to the child, the family and to the Court, and how the applicable legal principles, including constitutional principles, apply to govern its conduct. It should also consider having the serious conversation with the other agency like the police, in the way that Spence J. recommended, and/or supervisors and internal legal counsel at the Society.
PART V: ORDERS
[124] In addition to the scheduling Order that I already made on January 20, 2022, I direct that any case law to be provided for the motion may be listed and hyperlinked in a Confirmation Form and filed to my attention via the judicial assistant. Counsel may do this at any time up to noon on the day of the motion.
[125] Costs of this motion continue to be reserved to the hearing on the merits.
Justice Alex Finlayson
Released: January 24, 2022
COURT FILE NO.: FC-15-118-02
DATE: 20220124
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Durham Children’s Aid Society
Applicant
- and –
G.S.
Respondent mother
- and –
T.A.
Respondent father
REASONS FOR DECISION
Justice Alex Finlayson
Released: January 24, 2022
[^1]: The Court was told that the parents informally changed the specific schedule in Nicholson J.’s order to a week about schedule at some point after the Order was made. Paragraph 39 of the affidavit of Erika Ibbotson sworn January 17, 2022 says this occurred on June 28, 2019.
[^2]: Pursuant to the Order of Hughes J. dated December 10, 2021, the mother was permitted to travel with the child to Florida between December 26, 2022 and January 6, 2022. This Order was not part of the Society’s motion material. The mother’s counsel later provided this Court with a copy of Hughes J.’s Order by email to the registrar on January 20, 2022. All counsel were copied with counsel’s email. The Court thanks Mr. Tobin for being helpful. However, out of an abundance of caution for next time in case there is an objection, the Court also asks that counsel please file documents in the ordinary course, or seek the Court’s permission to file them during a hearing, before emailing them to the registrar.
[^3]: There is also the separate issue, that Ms. Ibbotson telling the father to get 30 minutes of free legal advice from the lawyer referral service at the Law Society, while at the same time as telling him he must agree to the suspension of his parenting time or else there would be a court proceeding, cannot possibly meet the requirement of section 21(2)(d). See Children’s Aid Society of Toronto v. Y.M., 2019 ONCH 489 ¶ 392.
[^4]: See again ¶ 12 of the decision of Kukurin J. in Children’s Aid Society of Algoma v. K.M. In this paragraph, Kukurin J. also says that sometimes even where there is service before the hearing, it is effectively like an ex parte hearing because the parents cannot respond in time.