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Family - Child Protection (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 'bonding' of a child with a foster parent, and the need (or not) for expert evidence on the issue:[67] Counsel for the Society rightly points out that expert evidence is not required to make determinations of both whether a child is attached to a parent or whether fostering that attachment is in the best interests of the child. For example, in Valoris for Children and Adults of Prescott Russell v. S.M.N. et. al. 2018 CanLII 53413, (2018) 144 O.R. (3d) 424 (S.C.J.), the Court was faced with a complex dispute over the parenting of a young child. The Court found, without expert evidence, that the child had bonded with the foster mother and that it was in the child’s best interests that the child be placed with the foster mother. Similarly, in this case the trial judge did not require expert evidence to determine that the Children were bonded to the foster mother.
[68] More generally, expert evidence is not required to explain every technical finding that a judge makes. For example, an observation that a child does not have a nighttime accident except on the night after an access visit is objective non-expert evidence that a judge can use to infer that the child was dysregulated after the access visit. Indeed, the admission of expert evidence must be tempered by an understanding of its risks and dangers: See White Burgess Langille v. Abbott and Halliburton Co. 2015 SCC 23, [2015] 2 S.C.R. 182. An overreliance on expert evidence to support inferences that are open to trial judges to draw makes litigation more costly and is a further barrier to access to justice.
[69] The evidence before the trial judge in this case was evidence about what the Children were doing and when they were doing it. The trial judge was entitled to use that evidence to draw reasonable inferences about what was causing the behaviour. He drew these inferences, and there is no basis for appellate intervention. . T.M.N. v Child and Family Services of Grand Erie (formerly C.A.S. of Haldimand Norfolk)
In T.M.N. v Child and Family Services of Grand Erie (formerly C.A.S. of Haldimand Norfolk) (Div Court, 2023) the Divisional Court considers the fresh evidence test for child protection matters:[32] The standard test for admission of fresh evidence on an appeal is set out in Palmer v. The Queen 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. That test, when applied in a child protection appeal in light of s. 121(6) of the CYFSA, has been described as being “more relaxed”. Such evidence should be admitted in a child protection proceeding if it: (a) could not have been adduced before; (b) is highly relevant in that it provides the court with an accurate picture of the situation at hand; (c) is potentially decisive to the child’s best interests; (d) is credible; (e) is uncontroverted; and (f) updates evidence submitted between the time of the prior hearings and the appeal. A flexible approach should be taken, given the need for accurate and up-to-date information concerning the child’s best interests: see Children's Aid Society of Toronto v. P.M., 2015 ONCA 695.
[33] In this case, however, the evidence sought to be adduced is not of a nature that is more commonly proffered in child protection appeals. It is not designed to provide up-to-date information relevant to the best interest of the Child or to give a better picture of the situation at hand. Rather, the proposed fresh evidence deals with the same events that surrounded the execution by the parents of the SAF as had already been outlined in their affidavits filed on the motion that resulted in the Order under appeal, with some augmentation and occasional contradiction.
....
[36] Even with an assessment of the issue of admission of the fresh evidence based upon the more relaxed standard applicable to a child protection proceeding, I would not consider that the evidence has met the test for admission on this appeal. In particular, the evidence could have been adduced at the original hearing of the motion, is not relevant to the present situation at hand, has little bearing on the best interests of the Child, is of questionable credibility and is not uncontroverted.
[37] Accordingly, the motion to admit the fresh evidence is dismissed. . T.M.N. v Child and Family Services of Grand Erie (formerly C.A.S. of Haldimand Norfolk)
In T.M.N. v Child and Family Services of Grand Erie (formerly C.A.S. of Haldimand Norfolk) (Div Court, 2023) the Divisional Court, while ostensibly assigning the normal appeal standard of review (correctness for errors of law, palpable and overriding for errors of fact and mixed fact and law) to a child protection appeal, really applies a highly deferential overall standard - undifferentiated by the type of error being considered:[30] This Court has previously commented on the standard of review to be applied in the context of child protection appeals. The court owes a special duty to protect the safety and well-being of children, as the best interests of the children are the paramount concern in child protection proceedings (see: A.L.B. v. Durham Children’s Aid Society, 2021 ONSC 8041 (Div. Ct.)). The standard of review on appeal set out in Housen v. Nikolaisen, 2002 SCC 33 remains applicable, as both parties agree, with that special duty in mind. An appeal court in a child protection case may interfere with the judge’s conclusion only if he [or she] made an error in principle, misapprehended the evidence or arrived at a clearly unreasonable result (see: M.F. v. Family and Children Services of Lanark, Leeds and Grenville, 2013 ONSC 702). . Catholic Children's Aid Society of Toronto v. V.O.
In Catholic Children's Aid Society of Toronto v. V.O. (Ont CA, 2023) the Court of Appeal cited the leave test for an application under s.115 ['Status review for children in, or formerly in, extended society care'] of the Child, Youth and Family Services Act, 2017:[13] At the outset of her analysis, the motion judge noted that s. 115(5) does not set out a test for leave to seek a status review but added that a test has developed through the case law. She considered the five criteria set out by Bean J. in Children’s Aid Society of Metro Toronto v. B.A.F., 1988 CanLII 1432 (ON CJ), [1988] O.J. No. 2950 (Prov. Ct. (Fam. Div.)):1. The court must be satisfied that the status review application for which leave is sought must be made in good faith and not for some ulterior motive.
2. Leave should be refused where it is possible to obtain the relief sought by some less drastic way than a review of the whole order.
3. There must be some unusual circumstance to justify the review after two years and in spite of the child’s permanent status.
4. The court must be satisfied that, after two or more years, a status review application would likely promote the objectives set out in section 1 [of the CYFSA].
5. The applicant must establish a prima facie case that, if leave was granted, the applicant would probably get the relief sought. [14] The motion judge noted that there were two lines of cases relating to these criteria. Some cases have held, following B.A.F., that all five criteria must be satisfied before leave will be granted. Others have adopted a more flexible approach, in which the court’s discretion is not fettered by a requirement that the five criteria be satisfied. The motion judge considered that the five criteria provide a helpful guide for conducting a contextual analysis of whether leave should be granted. For example, in Children’s Aid Society of Haldimand and Norfolk v. J.A.M.-F., 2011 ONCJ 53, at paras. 22-23, Thibideau J. stated that the leave determination is a matter of substance, not formality; the analysis should be child-focused and give effect to the purposes of the CYFSA.
[15] The motion judge preferred and both counsel agreed to a “more flexible approach” focusing on the merits of the leave application rather than the necessity of satisfying all five criteria. She stated:Accordingly, the onus is on the parents to convince the court, on a balance of probabilities, that leave should be granted. In assessing the merits of the motion, the court is required to consider the legislative principles of the CYFSA. The first and paramount purpose is to promote the best interests, protection and well-being of the child. In reviewing these purposes the court must weigh if there is evidence that warrants a hearing on the merits. The court should weigh the circumstances flowing up to the leave application with the secure placement of the child. ....
[33] Section 115(5) is clear: a parent may not make a status review application without leave once a child has received continuous care for at least two years from the same foster parent or from the same person under a custody order. This is consistent with the broader context of time limits in s. 122 of the CYFSA that prohibit interim society care orders exceeding 12 months for a child under six years of age, as well as the requirement in s. 112 that, once a child is in extended care, the society “make all reasonable efforts” to establish a permanent placement. In this case, L was in the same temporary foster home from March 28, 2019 and the appellants’ status review application was not filed until January 4, 2022 – a period of almost three years.
[34] The appellants proffer no authority in support of their proposed interpretation. Section 115(5) establishes discretionary authority in the court to grant leave, but the court’s discretion does not go so far as to eliminate the leave requirement itself. This argument must fail.
[35] In the alternative, the appellants argue that the two-year period in s. 115(5) refers to “continuous care for at least two years” following an extended society care order. Interpreted in this way, the time begins to run only after an extended society care order has been made. Applying this approach, L had only been in continuous care with her foster parents following the extended society care order for about a year when the appellants brought their application for a status review.
[36] As with the first argument, there is no textual support for this interpretation of s. 115(5), nor is there any support in the case law. On the contrary, in several cases courts have included the time a child was with the same foster family prior to the extended society care (formerly referred to as “Crown wardship”) order in applying the two-year timeframe: see e.g., B.A.F.; Children's Aid Society of Hamilton v. M.W., 2011 ONSC 1382; Children’s Aid Society of Waterloo Region v. L.M., 2015 ONCJ 103.
[37] The appellants argue that to interpret s. 115(5) as requiring them to seek leave gives rise to an unfairness: because s. 115(7) establishes a six-month “placement window” prohibition on initiating a status review following a final order, expiration of this six-month period may coincide with two years of continuous care, leaving no window in which a parent may apply for a status review without leave. There could also be situations where the leave requirement is triggered immediately upon a child being placed in extended society care, which the appellants say would be absurd.
[38] This argument is misconceived. An extended society care order is distinct from an interim society care order. Section 122(1) of the CYFSA prohibits the court from making an order for interim society care that results in a child younger than six being in the care and custody of a society for a period exceeding 12 months. This provision clearly indicates the intention of the Legislature to establish a time limit on legal limbo. The limit on time spent in interim care provides parents with a limited period of time in which to address the society’s safety concerns. In contrast, s. 112 of the CYFSA makes clear that the purpose of an extended society care order is permanence: once an extended society care order is made, the CCAS is required to “make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family” through an adoption or a custody order. Given, as the appellant states, that the purpose of the six-month prohibition is to create a “placement window” during which the CCAS seeks to place the child for adoption or in a non-parent’s custody, it is anticipated that the child may be placed for adoption during this time, finally terminating the parent’s rights. There is no opportunity to seek a status review following an adoption placement: s. 115(9). Thus, although a status review is not foreclosed, the leave requirement established in s. 115(5) is consistent with the goal of permanence associated with an extended society care order. . Children's Aid Society of London and Middlesex v. T.E.
In Children's Aid Society of London and Middlesex v. T.E. (Ont CA, 2023) the Court of Appeal considered cost awards in child protection matters, here in an indigenous context:[3] This court looks to the Family Law Rules, O.Reg.114/99 and its underlying principles to provide guidance as to costs: Selznick v. Selznick, 2013 ONCA 35. Under those rules, while there is a general presumption that costs are awarded to the successful party, the same presumption does not apply in a child protection case or to a party that is a government agency: rules 24(1) and 24(2). At the same time, rule 24(3) explicitly retains the court’s discretion “to award costs to or against a party that is a government agency, whether it is successful or unsuccessful”.
[4] An important factor for this court to consider is whether the agency was respectful of the rights and dignity of the children and parents involved in the case: Children’s Aid Society of the Region of Peel v. L.M., 2022 ONCA 379. . Land v. Dryden Police Services Board
In Land v. Dryden Police Services Board (Ont CA, 2023) the Court of Appeal allowed an appeal from a summary dismissal of a lawsuit by a self-represented indigenous couple who sued the police over events following a report that the woman had attended to pick up children from school while intoxicated. The action was grounded in negligent investigation, negligence, negligent infliction of mental distress, invasion of privacy, trespass, misfeasance in public office and breaches of ss. 7, 8, 9 and 12 of the Charter.
Regarding the trespass tort against the police, which was defended on CFSA grounds, the court stated:[18] Concerning the Dryden Police, the motion judge relied on a finding that Ms. Gardner was entitled, under s. 40 of the Child and Family Services Act, R.S.O. 1990, c. C. 11 (the “CFSA”)[1], to enter the home without a warrant to search for and remove the child and to request the police officers to assist her in doing so to dismiss many of the appellants’ claims against them. ...
....
(2) Did the motion judge err in finding Ms. Gardner was entitled, under s. 40 of the CFSA, to enter the appellants’ home without a warrant and to request the police officers to assist her in so doing?
[30] The motion judge found that Ms. Gardner’s entry into the appellants’ home was lawful for two reasons. First, he accepted that Mr. Land invited Ms. Gardner into the home. Second, he found that Ms. Gardner was entitled to enter the home under s. 40 of the CFSA without a warrant and that she was also entitled under that section to request that the police assist her in so doing.
[31] On appeal, the appellants dispute both findings.
[32] It is unnecessary that I address the first finding. I have found no error in the motion judge’s conclusion that the appellants’ claims against the Society defendants are statute barred. However, the lawfulness of the police entry into the home and of their subsequent actions in arresting the appellants for obstructing the police turn on whether Ms. Gardner was entitled, under s. 40 of the CFSA, to enter the home without a warrant and to invite the police to assist her. The fact that she may have been invited to enter the appellants’ home did not entitle her to invite the police to enter the home without the owners’ permission, or to do so without a warrant and by force, unless she was acting under authority granted by s. 40 of the CFSA.
[33] Before turning to the motion judge’s findings, it will be helpful to understand the relevant provisions of s. 40 of the CFSA.
[34] To make his findings, the motion judge relied on s. 40 of the CFSA, which included provisions (ss. 40(7), (8), and (11)) that authorized a child protection worker, in certain circumstances, to enter premises without a warrant, by force if necessary, to search for and remove a child, and to request the assistance of the police in doing so.
[35] However, ss. 40(1) and 40(2) of the CFSA provided necessary context for the provisions on which the motion judge relied, so I will review those subsections as well.
[36] Section 40(1) permitted a children’s aid society to apply to the court for an order that a child is in need of protection.
[37] Section 40(2) permitted a justice of the peace to issue a warrant authorizing a child protection worker to bring a child to a place of safety if satisfied “on the basis of the child protection worker’s sworn information” that there were reasonable and probable grounds to believe that:. the child is less than 16 years old and is in need of protection; and
. a less restrictive course of action is not available or will not protect the child adequately. [38] As noted above, ss. 40(7), (8), and (11) of the CFSA, authorized a child protection worker, in certain circumstances, to enter premises without a warrant, by force if necessary, to search for and remove a child, and to request the assistance of the police in doing so. The two conditions underpinning the authority provided by these sections included that the child protection worker believe on reasonable and probable grounds (i) that a child is in need of protection, and (ii) that there would be a substantial risk to the child’s health or safety during the time necessary to obtain a warrant under s. 40(2): R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 39.
[39] The specific provisions on which the motion judge relied, ss. 40(7), (8), and (11), read as follows (with emphasis added):40(7) A child protection worker who believes on reasonable and probable grounds that,
(a) a child is in need of protection;
(a.1) the child is less than 16 years old; and
(b) there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter on for a hearing under subsection 47(1) or obtain warrant under subsection (2),
may without a warrant bring the child to a place of safety.
(8) A child protection worker acting under this section may call for the assistance of a peace officer.
...
(11) A child protection worker who believes on reasonable and probable grounds that a child referred to in subsection (7) is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child. [40] In finding that Ms. Gardner was entitled to enter the appellants’ home under s. 40 of the CFSA, the motion judge made a finding that Ms. Gardner had a subjective belief that the appellants’ child “may have been” in need of protection on the day in question. He said the following (with emphasis added):Section 40(11) of the CFSA states that a child protection worker who believes on reasonable and probable grounds that a child may be in need of protection may without a warrant enter premises to search for and remove a child.
The requirement of reasonable and probable grounds has both a subjective and objective component. …
Ms. Gardner has deposed that she was advised that Ms. Henry picked her child up from school while possibly intoxicated. She felt obliged to check on the welfare of the child at the [appellants’] residence. Once at the residence, she initially encountered Mr. Land, whom she observed to be acting aggressively toward her and who she thought was under the influence of alcohol. Ms. Gardner deposed that Mr. Land attempted to close the door on her after she explained why she was present at his home.
I find that Ms. Gardner, having received a referral that Ms. Henry may have been intoxicated, and having observed Mr. Land to also be possibly intoxicated and aggressive, had a subjective belief that the [appellants’ ] child may have been in need of protection on the day in question. I also find that Ms. Gardner’s belief was objectively reasonable in the circumstances.
As a result, Ms. Gardner’s entry into the [appellants’] home on November 24, 2015 was lawful pursuant to s. 40(11) of the CFSA. [41] In my view, there are several problems with this analysis.
[42] First, while Ms. Gardner gave evidence in her affidavit filed on the motion of the background circumstances the motion judge described and said she had concerns for her safety and the safety of the child, she gave no specific evidence addressing whether she believed, when she entered the residence, that the child met the statutory criterion of being a child in need of protection. Her only evidence that spoke directly to that statutory criterion was that, after the appellants were placed under arrest, she concluded the child was in need of protection primarily because there was no adult caregiver present in the home. Accordingly, to the extent the trial judge made a finding concerning this statutory criterion, he made it without a proper evidentiary foundation.
[43] Second, although s. 40(7) sets out a requirement that to act without a warrant a child protection worker must believe on reasonable and probable grounds that a child is in need of protection, the motion judge described the requirement, and his finding concerning Ms. Gardner’s state of mind, as believing that the child may be in need of protection.
[44] Third, the motion judge made no finding concerning the requirement in s. 40(7)(b) that to act without a warrant, a child protection worker must believe on reasonable and probable grounds that there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).
[45] Fourth, Ms. Gardner gave no evidence in her affidavit concerning her subjective belief about whether there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).
[46] I recognize that in making his findings, the motion judge focused on s. 40(11) of the CFSA which specifically authorizes a child protection worker to enter onto premises without a warrant, by force, if necessary, to search for and remove a child. However, s. 40(11) is premised on s. 40(7), which sets out the two pre‑conditions to its exercise recognized by this court in Davidson, namely, that a child protection worker believe on reasonable and probable grounds: (i) that a child is in need of protection, and (ii) that there would be a substantial risk to the child’s health or safety during the time necessary to obtain a warrant under ss. 40(2).
[47] The Dryden Police rely on R. v. C.(M.), 2007 ONCJ 164, 220 C.C.C. (3d) 398, at para. 42, in support of their position that child protection workers may exercise their powers to enter premises without a warrant to conduct welfare checks, i.e., based on reasonable and probable grounds that a child may be in need of protection.
[48] However, there are conflicting authorities in the courts below concerning whether the position the Dryden Police advance is correct. See, for example, R. v. Ashkewe, 2007 ONCJ 152, 220 C.C.C. (3d) 423, at paras. 27, 30 and 41.
[49] Because of the other issues I have identified, it is unnecessary that I finally decide the question whether reasonable and probable grounds to believe a child may be in need of protection is sufficient to meet the requirements of s. 40(7)(a) of the CFSA in order to dispose of this appeal. Accordingly, I consider that that question is best left to another case in which the issue can be fully argued.
[50] In this case, in addition to the first problem set out above, I conclude that the motion judge’s finding that Ms. Gardner’s entry, and therefore the police entry, was lawful under s. 40 of the CFSA cannot stand because the motion judge made no finding, and there was no evidence before him on which to base a finding, that the requirements of s. 40(7)(b) of the CFSA were satisfied. That is, Ms. Gardner gave no evidence that she subjectively believed there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).
[51] I emphasize that the absence of this evidence and a finding by the motion judge are not technical deficiencies. Sections 40(7), (8) and (11) confer extraordinary powers on child protection workers to enter premises, including a dwelling house, without a warrant, by force if necessary, and with the assistance of police. While the goal of protecting children is undoubtedly of great importance, the extraordinary nature of the powers conferred under these sections requires that the conditions for exercising them be both strictly respected and strictly enforced. While I recognize that child protection workers and the police frequently encounter fluid, and difficult, situations in carrying out their mandate to protect children, even so, they must always turn their minds to the statutory conditions for exercising their extraordinary powers before doing so.
[52] I accordingly conclude that the trial judge’s finding that Ms. Gardner’s entry was lawful under s. 40 of the CFSA must be set aside and his further finding that the police entry was lawful because Ms. Gardner was lawfully entitled to request them to assist her must also be set aside.
[53] During oral argument, the Dryden Police argued that if Ms. Gardner’s evidence did not provide lawful grounds for the warrantless entry by police using force, the evidence of the police officers surely did. However, the Dryden Police failed to identify the evidence that would support that submission.
[54] In the result, I would set aside the summary judgment dismissing the appellants’ claims against the Dryden Police with respect to which the motion judge relied on his finding that the police entry into the appellants’ home based on reasonable and probable grounds was lawful. Those claims are the claims for: negligence, false arrest, false imprisonment, assault and battery, trespass and invasion of privacy and the appellants’ claims under ss. 7 and 9 of the Charter, which must proceed to trial.
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