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Family - "Child in Need of Protection" [CFYSA s.74(2)]. K.R. v Children’s Aid Society of London and Middlesex
In K.R. v Children’s Aid Society of London and Middlesex (Div Court, 2023) the Divisional Court considered the timing of a finding that a "child (is) in need of protection" [under CYFSA s.74(2)]:[40] The Appellant mother’s key argument is that the trial judge failed to consider the fact that the risks had resolved themselves by the time the trial took place. The Appellant mother argued that the trial judge erred in law by considering the Appellant mother’s history of drug abuse and transiency because there was no evidence that the Appellant mother was using drugs at the time of the trial and because she had found permanent accommodations three months before the trial. In support of this position, the Appellant mother relied on the decision in N.V.C. v. Catholic Children’s Aid Society of Toronto 2017 ONSC 796.
[41] I disagree for two reasons. First, the general approach in the case-law is laid out in detail in Children’s Aid Society of Toronto v. R.M. 2019 ONSC 2251. In that decision, Horkins J. rejected the rigidity associated with requiring a finding that the children were at risk of harm on the day of the hearing. She stated (at paras. 92 to 94):[92] In C.A.S. of London and Middlesex v. T.Y., 2017 ONSC 3460, at para. 94, the court explained why the rigid approach is problematic, adopting Thibideau J.’s comments in Children's Aid Society of Brant v. J.A.T., 2005 ONCJ 302, at para 24:The more rigid approach reduces the hearing process to a judicial game with formal and rigid rules regardless of outcome and policy considerations. The flexible approach focuses on the best outcome for the child within an evidentiary framework that fosters use of evidence for an appropriate outcome. [93] The type of risk that can lead to a child protection order is set out in s. 74(2) of the CYFSA. It was also defined in the predecessor Act. It is obvious from the legislation that “risk” can be caused by a variety of different circumstances and conduct.
[94] In many child protection matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts. [42] I accept that the risks will change over time, and that the judge hearing the case must consider all of the facts to determine whether the risk exists and/or may return, even if it is under control or resolved at the time of the hearing.
[43] Second, in any event, a close reading of N.V.C. suggests that the judge in that case adopted an approach that was not that different from the one adopted by Horkins J. in R.M. I acknowledge that N.V.C. states (at para. 57) that the risk of harm must be determined at the time of the hearing. However, N.V.C. goes on to state (at para. 64):[64] It is obvious that for the state to intervene, apprehend a child, and place her in foster care on a temporary basis, there must be a finding that the child is in need of protection at the time of the intervention. As well, in a hearing to finally determine the issue of present risk of future physical harm, it is equally obvious that a finding must be based upon all of the relevant evidence at the date of the hearing. [44] The N.V.C. decision, like R.M., envisions a review of all the evidence at the time of the hearing. In my view, that encompasses both the facts as they exist on the date of the hearing and the history of the participants in the trial. By considering the entirety of this evidence, a trial judge can arrive at a complete and accurate risk assessment.
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