COURT FILE NO.: FS-23-0001-00 DATE: 2023/03/21
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: The Children’s Aid Society of the Region of Peel Appellant
And
S. C. and S.F. Respondents
BEFORE: Bloom, J.
COUNSEL: Deana DeGrâce, counsel for the Appellant
HEARD: 2023/03/20
ENDORSEMENT
I. INTRODUCTION
[1] The Appellant appeals the term of the order of Justice A.W. J. Sullivan of the Ontario Court of Justice dated December 20, 2022 which requires the Appellant to hire a third party professional supervision service. The Respondents filed no written materials and were unrepresented during the oral hearing.
II. FACTUAL AND PROCEDURAL BACKGROUND
[2] The child, born [...], 2018, is the subject of protection proceedings under the Child, Youth and Family Services Act, 2017 (hereinafter the CYFSA). She is the child of the Respondents.
[3] By his order of December 20, 2022 Justice Sullivan varied his own order of June 30, 2022 and the order of Justice Philip J. Clay of November 10, 2022. Paragraph 1 of the December 20 order obligates the Appellant to hire a professional supervised access service to assist with supervised home visits between the child and Mr. F. The order further elaborates on how the service is to perform its assigned function. The order provides for supervision of the placement of the child; it does not provide access to a child in the care of the Children’s Aid Society.
[4] Justice Sullivan’s reasons cite as authority for the order s. 94(8) and (9) and s. 137(1) of the CYFSA.
[5] Counsel for the Appellant informed me in oral argument that the child is now in the care of her mother pursuant to another order, but that the situation involving the child is a fluid one, where the very issue before be can resurface quickly. Accordingly, I do not find that the question before me is moot. I will, therefore, address it on the merits.
III. ARGUMENTS OF THE APPELLANT
[6] In oral argument the Appellant attempted to raise as an alternative argument that the order in question was in error, even if it did not contravene s. 94(6)(c) of the CYFSA. I did not permit that argument to be made, since the Appellant’s factum clearly raised only the argument of the contravention of s. 94(6)(c).
[7] The Appellant argues that Justice Sullivan erred in law in paragraph 1 of the December 20 order by contravening s. 94(6)(c) of the CFSA which provides:
(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.
[8] The Appellant argues that this error is one of law which is subject to a correctness standard of review.
[9] The Appellant argues that the prohibition on requiring the Children’s Aid Society “to provide financial assistance or to purchase goods or services” appears in the CYFSA in three contexts involving supervision orders where children are not in the care of the society, as opposed to access orders where children are in the care of the society; and that, accordingly, the society can be ordered to make expenditures in the case of access orders which would be prohibited in the case of supervision orders.
IV. GOVERNING LEGAL PRINCIPLES
[10] The applicable provisions of the CYFSA are s. 94 and s. 137, and are set out below:
Adjournments
94 (1) The court shall not adjourn a hearing for more than 30 days,
(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or
(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.
Custody during adjournment
(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.
Where child is subject to extra-provincial order
(3) Where a court makes an order under clause (2) (d) in the case of a child who is the subject of an extra-provincial child protection order the society may, during the period of the adjournment, return the child to the care and custody of the child welfare authority or other person named in the order.
Criteria
(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
Placement with relative, etc.
(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
Terms and conditions in order
(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,
(a) reasonable terms and conditions relating to the child’s care and supervision;
(b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for 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 to purchase any goods or services.
Application of s. 107
(7) Where the court makes an order under clause (2) (d), section 110 (child in interim society care) applies with necessary modifications.
Access
(8) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.
Power to vary
(9) The court may at any time vary or terminate an order made under subsection (2).
Evidence on adjournments
(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.
Child’s views and wishes
(11) Before making an order under subsection (2), the court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.
Restraining order
137 (1) Instead of making an order under subsection 101 (1) or section 116 or in addition to making a temporary order under subsection 94 (2) or an order under subsection 101 (1) or section 116, the court may make one or more of the following orders in the child’s best interests:
An order restraining or prohibiting a person’s access to or contact with the child, and may include in the order such directions as the court considers appropriate for implementing the order and protecting the child.
An order restraining or prohibiting a person’s contact with the person who has lawful custody of the child following a temporary order made under subsection 94 (2) or an order made under subsection 101 (1) or clause 116 (1) (a) or (b).
Notice
(2) An order shall not be made under subsection (1) unless notice of the proceeding has been served personally on the person to be named in the order.
Duration of the order
(3) An order made under subsection (1) shall continue in force for such period as the court considers in the best interests of the child and,
(a) if the order is made in addition to a temporary order made under subsection 94 (2) or an order made under subsection 101 (1) or clause 116 (1) (a), (b) or (c), the order may provide that it continues in force, unless it is varied, extended or terminated by the court, as long as the temporary order made under subsection 94 (2) or the order made under subsection 101 (1) or clause 116 (1) (a), (b) or (c), as the case may be, remains in force; or
(b) if the order is made instead of an order under subsection 101 (1) or clause 116 (1) (a), (b) or (c) or if the order is made in addition to an order under clause 116 (1) (d), the order may provide that it continues in force until it is varied or terminated by the court.
Application for extension, variation or termination
(4) An application for the extension, variation or termination of an order made under subsection (1) may be made by,
(a) the person who is the subject of the order;
(b) the child;
(c) the person having charge of the child;
(d) a society;
(e) a Director; or
(f) in the case of a First Nations, Inuk or Métis child, a person described in clause (a), (b), (c), (d) or (e) or a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.
Order for extension, variation or termination
(5) Where an application is made under subsection (4), the court may, in the child’s best interests,
(a) extend the order for such period as the court considers to be in the best interests of the child, in the case of an order described in clause (3) (a); or
(b) vary or terminate the order.
Child in society’s care not to be returned while order in force
(6) Where a society has care of a child and an order made under subsection (1) prohibiting a person’s access to the child is in force, the society shall not return the child to the care of,
(a) the person named in the order; or
(b) a person who may permit that person to have access to the child.
[11] In Ruth Sullivan, The Construction of Statutes, 7th edition, (LexisNexis Canada Inc. 2022) at s.2.01 the learned author states:
In the first edition of The Construction of Statutes, published in 1974, Elmer Driedger described an approach to statutory interpretation which he called the modern principle:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 1
In the years following that first edition, the modern principle was frequently cited and relied on, and in 1998, in Re Rizzo & Rizzo Shoes Ltd., it was declared to be the preferred approach of the Supreme Court of Canada. Speaking for the Court, Iacobucci J. wrote:
Although much has been written about the interpretation of legislation ... Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. 2
Since the Rizzo case, the modern principle has been the starting point for statutory interpretation in innumerable decisions by Canadian courts. It has been applied in interpreting Indian band by-laws, 3 constitutions and election codes enacted by self-governing Indigenous communities, 4 municipal bylaws, 5 as well as Quebec’s Civil Code. 6
[12] The distinction between supervision orders, where a prohibition of the sort before me applies, and access orders where it does not, as argued by the Appellant, finds support in Children’s Aid Society of the Niagara Region v. L. S., [2009] O.J. No. 46 (Ont. Sup. Ct.) at para. 30 and in Children’s Aid Society of Toronto v. S.T., 2017 ONCJ 833 at paras. 96 to 99. There is contrary authority to this line of cases in Durham Children’s Aid Society v. T.W., [2009] O.J. No. 4456 (Ont. Sup. Ct.).
V. ANALYSIS AND ORDER
[13] The error alleged is one of law to which the standard of review of correctness applies.
[14] Applying the modern principle of statutory interpretation and taking comfort from the case law supporting the distinction between supervision and access orders relied upon by the Appellant, I find that the order in issue contravenes s. 94(6)(c) of the CYFSA by requiring the Children’s Aid Society to purchase the services of a professional supervision service.
[15] The language of the statutory provision is clear and unequivocal in that regard.
[16] Since at the moment the child is in the care of her mother under a different order than the one subject of this appeal, I need not address the issue of remedy, other than allowing the appeal and setting aside the provision of the order subject of the appeal.
Bloom, J. DATE: March 21, 2023