Nunavut v. L.A. and J.K., 2011 NUCJ 06

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Nunavut v.

L.A. and J.K., 2011 NUCJ 06 Date: 20110407 Docket: 08-09-563-CHW Registry: Iqaluit Respondent: NUNAVUT (DIRECTOR OF CHILD AND FAMILY SERVICES) -and- Applicants: L.A. (mother) and J.K.(father) ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Respondent): Vito Scavetta Counsel (Applicants): Paul LeSarge Location Heard: Iqaluit, Nunavut Date Heard: November 10, 2011 Matters: Child and Family Services Act , S.N.W.T. 1997, s.38, as amended by Statutes enacted under s.76.05 of the Nunavut Act , S.C. 1993, c. 28.; Canadian Charter of Rights and Freedoms, ss. 7 .

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) I. BACKGROUND [ 1 ] L.A. and J.K. are parents of a child born June [...], 2008. On September 10, 2009, the child was apprehended as there were reasonable grounds to believe he was in need of protection. The Director made an application to the Court for a six month Supervision Order, which was to be heard on October 14, 2009. Had this application proceeded and been successful, the child would have been returned to the parents, subject to supervision by a Child Protection Worker.

However, prior to the application being heard, the mother agreed to the child being placed in foster care for six months pursuant to a Plan of Care Agreement. Subsequent to the apprehension, the father was incarcerated. He was in custody at the time the Plan of Care Agreement was entered into and was not a party to it. [ 2 ] When the matter came before the Court on October 14, 2009, the Director indicated he wished to withdraw the application for a Supervision Order, as the mother had agreed to a Plan of Care Agreement.

Counsel for the parents objected to the withdrawal of the application, as he wished to keep the matter before the Court in order to challenge the legislative provisions relating to Plan of Care Agreements. [ 3 ] The original Plan of Care Agreement was for a period of six months, from October 14, 2009 to April 14, 2010. During the term of the original Plan of Care Agreement, the father was released from jail and upon his release he signed on to the Plan of Care Agreement.

The Plan of Care Agreement was extended on two occasions, resulting in the child being in care for approximately thirteen months. [ 4 ] While the Plan of Care Agreement was in effect, the mother was able to attend residential treatment in the south, which she successfully completed in October of 2010. Upon her return to Nunavut, she was reunited with the child and they are now living together, without any involvement by the Director or the Court. II.

DIRECTOR'S APPLICATION TO WITHDRAW THE APPLICATION FOR A SUPERVISION ORDER [ 5 ] As previously stated, when the matter first came before the Court in October of 2009, the Director attempted to withdraw the application for a Supervision Order because an agreement had been struck between the parties and there was no longer an issue to be determined by the Court. Counsel for the parents objected to the withdrawal as he wanted to keep the matter alive so that a constitutional challenge could be made. At that time, the child was in foster care pursuant to a Plan of Care Agreement.

It is noteworthy that Counsel for the parents did not suggest that the parents did not truly consent to the Plan of Care Agreement, nor did Counsel simply consent to the application being sought by the Director, which would have seen the child returned to the mother under a Supervision Order.

It is clear that at the time the Director sought to withdraw the application on October 14, 2009, there was no longer any dispute between the parties which required adjudication by the Court. [ 6 ] There is some case law to suggest that the courts cannot prevent a party from withdrawing an application (Manitoba (Director of Child and Family Services) v AC (child), 2008 MBCA 18 , 169 ACWS (3rd) 998 [Manitoba]). However, that specific question is not before me as I am not dealing with an appeal from the decision to disallow the withdrawal of the application. III.

ISSUES [ 7 ] Counsel for the parents submits that those provisions of the Child and Family Services Act, S.N.W.T. 1997, c. 13 , as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 , that relate to Plan of Care Agreements, are contrary to

section 7 of the Canadian

Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], on the grounds that they do not provide for independent judicial review of the Agreements. The issues are: 1. Is the application to have the Plan of Care Agreement provisions of the Child and Family Services Act declared unconstitutional moot and, if so, should the Court exercise its discretion to hear it in any event? 2. Do the provisions of the Child and Family Services Act relating to Plan of Care Agreements breach

section 7 of the Charter ? 3. If the provisions do breach

section 7 of the Charter , are they saved by

section 1 of the Charter? 4. If the provisions do breach

section 7 of the Charter and are not saved by

section 1 of the Charter, what is the appropriate remedy? IV. LEGISLATIVE FRAMEWORK [ 8 ] The Child and Family Services Act [Act] sets out the child protection regime in Nunavut. [ 9 ] The common theme in the principles governing the Act is that the best interests of children are paramount. These interests should be protected in a manner that is the least intrusive to the family and the community.

It is recognized that it is generally in the best interests of children to be cared for in the family. [ 10 ] The legislation provides for a variety of ways in which the Director can be involved in the lives of children and families.

These ways range from Voluntary Support Agreements, pursuant to which the Director and the family agree that the Director will provide specified support to the family, to Permanent Custody Orders, whereby the Director assumes all parental rights in relation to a child. [ 11 ] If there are grounds to believe that a child is in need of protection, and the Director either intends to apprehend or has apprehended a child, the Act provides that a Plan of Care Committee must be established. [ 12 ] The Act provides: 15.

(2) A plan of care committee shall be composed of (

a) at least one person who has lawful custody of the child; (

b) the child, where the child has attained the age of 12 years and wishes to sit as a member; (

c) one member of the Child and Family Services Committee, where there is a Child and Family Services Committee in the child's community; and (

d) one Child Protection Worker. [ 13 ] The Act further provides:

(7) A plan of care committee terminates (

a) where there is only one member of a category listed in paragraph (2)(

a) and he or she has become unable or unwilling to sit as a member, and the Child and Family Services Committee or the Child Protection Worker, as the case may be, i. is not required under the regulations to invite another person to sit as a member, or ii. is required under the regulations to invite another person to sit as a member but is unable to substitute another person for the member; [ 14 ] The Child and Family Services Regulations, Nu R. 142-98 provide: 14.

Where a lawful custody member is unable or unwilling to continue to sit as a member, or is ineligible under subsection 17 (1) of the Act to sit as a member, the Child and Family Services Committee or Child Protection Worker that established the plan of care committee shall invite another person who has lawful custody of the child to sit as a member, if his or her whereabouts are known, who (

a) previously refused an invitation to sit as a member; or (

b) is a former member. 20.

(1) A meeting of a plan of care committee may be held only where a majority of the members attend in person or by telephone conference call. The majority of members referred to in subsection (1) must include the following members: (

a) every lawful custody member; (

b) the Child Protection Worker member. 27

(1) Except as otherwise provided in the Act , a decision of a plan of care committee is mad with the agreement of a majority of the members.

(2) The majority of members referred to in subsection (1) must include the following members: (

a) every lawful custody member; (

b) the Child Protection Worker member. [ 15 ] A person with lawful custody will, in most instances, be a parent, so I will simply refer to “parent” throughout this decision. [ 16 ] Pursuant to section 16(1) of the Act , if a Plan of Care Agreement is not reached within 15 days of the relevant day under subsection (2), an application must be made to the Court for a declaration that the child is in need of protection.

However, as a result of a Practice Directive of this Court which has been in effect since December 21, 2009, the application must be made to the Court within four days of an apprehension, and a hearing to determine whether there were reasonable grounds for the apprehension must be heard within nine days of the documents being filed with the Court. The effect of this Practice Directive is that a matter will be before the Court within 13 days of an apprehension, a period of time less than the 15 days allowed for developing a Plan of Care Agreement before having to go to Court, as provided for in the Act.

V. THE EVIDENCE [17] The parents did not file an Affidavit or call evidence. Counsel for the parents filed a thesis titled “When Cultural Competence isInadequate: An Opportunity for a New Approach to Child Welfare in Nunavut.” There is no indication that this thesis was successfullydefended, peer reviewed or published, nor was the author qualified as an expert witness.

It is difficult to know to what extent, if any, theCourt can rely upon this document. [18] Counsel for the parents relies upon those aspects of the thesis that speak to a power imbalance between child protection workersand parents, which exists in any context but may be exacerbated in Nunavut.

However, there are also aspects of the thesis that speak tothe need to be creative and to use alternatives to court (page 79). [19] The uncontradicted evidence in this case, which seems to be borne out by the manner of the proceedings, is that the mother wishedthe child to be placed in care while she addressed housing and other issues. A.

Is The Constitutional Challenge To The Plan Of Care Agreement Provisions Moot? [20] The Director takes the position that since the mother and child are now reunited, the matter is moot and the Court should decline tohear the constitutional challenge to the Plan of Care Agreement provisions.

Counsel for the parents takes the position that the nature ofPlan of Care Agreements is such that they do not come before the courts, therefore there will rarely, if ever, be a matter in which there isan ongoing dispute between the parties where a court may be asked to rule on this particular issue. [21] In Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 at para 16, 57 DLR (4th) 231 [Borowski],the Supreme Court of Canada set out the approach that should be taken in resolving a mootness issue. The process involves a two-stepanalysis.

The first step requires a determination of whether the dispute between the parties has been resolved, rendering the issueacademic.

If so, the court must go on to determine whether it should exercise its discretion to hear the matter in any event. [22] It is clear in the matter before me that not only is there no outstanding dispute between the parties, it is questionable whether, at anytime, there was a dispute to be resolved, the parents having agreed to a greater level of Departmental intervention and supervision thanwhat the Department had been seeking in its application. [23] I am satisfied that the issue is moot and I must proceed to determine if the Court should exercise its discretion to hear the matter inany event. [24] In determining the proper exercise of its discretion, Borowski sets out in paragraphs 31 to 41, that the court must consider that:

i) The adversarial nature of the legal system lends itself to a full hearing of issues. If this adversarial feature is not present, issues mightnot be argued as vigorously and fully. ii) The scarcity of judicial resources requires the court to ensure that resources are being used where they are most effective. iii) The court must be sensitive to its role in the constitutional framework and its proper law-making function. It must be careful not tointrude into the role of the legislature. [25] The issue of mootness arose in two other cases involving child protection matters in Nunavut.

In JS v Nunavut (Minister of Healthand Social Services), 2006 NUCJ 20, 152 ACWS (3d) 359 [JS], the court proceeded to rule on a constitutional challenge to the Child and

Family Services Act even though the youth had since turned 18 and no longer fell within the provisions of the Act. [ 26 ] In PE v Nunavut (Director of Child and Family Services), 2010 NUCJ 24 (available on CanLII) [PE], the issue was moot, as the children had been returned to the parents. The issue of mootness was not argued by the parties and the court went on to determine the constitutional validity of the impugned provisions. B. Adversarial Context [ 27 ] Counsel for the parents does not take the position that the parents’

section 7 Charter rights were infringed, in the circumstances of this particular case, because of anything done on the part of the Department or because the parents felt coerced or were unaware of their options. Indeed, there is no evidence at all before the Court on behalf of the parents. The evidence that is before the Court supports the finding that the parents entered the Plan of Care Agreement voluntarily and with knowledge of their options. [ 28 ] It is the process provided for in the legislation that is being challenged.

Given the nature of the challenge, the fact that the specific dispute (if there ever was one) between the parties has been resolved does not detract from the nature of the argument before the Court. I am satisfied that the issue has been fully argued and presented, irrespective of the resolution between the parties. C. Scarcity of Judicial Resources [ 29 ] This concern may be addressed in cases where the issues are likely to arise in the future and judicial direction will assist in resolving future uncertainty.

It may also be addressed in instances where there is an important question to be answered but the nature of the question is such that it evades independent review by the court. [ 30 ] The nature of child protection proceedings means that decisions have to be made quickly so that children are protected and their lives disrupted as little as possible. Challenges to the legislation will, of necessity, most often be argued after issues relating to the children have been resolved. [ 31 ] The particular issue raised in this matter will not arise in the context of contested child protection proceedings.

It is an issue which is evasive of review. D. Role of the Courts [ 32 ] While it is the role of the legislature to make laws, it is the role of the courts to interpret laws and determine if they are in compliance with the Constitution. In Borowski, the court was not being asked to determine whether a particular piece of legislation was Charter compliant; it was being asked to rule on the nature and scope of a Charter right, without any legislation or government action to provide context.

Such is not the case in this matter. [ 33 ] I am satisfied that, despite the mootness of the issue, the Court should exercise its discretion and hear the application. VI. DO THE PROVISIONS RELATING TO PLAN OF CARE AGREEMENTS BREACH

SECTION 7 OF THE CHARTER? [ 34 ]

Section 7 of the Canadian Charter of Rights and Freedoms provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[35] It is well established law that

section 7 rights are triggered in the context of child protection proceedings (New Brunswick (Ministerof Health and Community Services) v G(J), (SCC), [1999] 3 SCR 46, 216 NBR (2d) 25 [New Brunswick]; KLW vWinnipeg Child and Family Services, 2000 SCC 48, [2000] 2 SCR 519 [KLW]). [36] The Supreme Court of Canada has established that when children are apprehended, the liberty and security interests of the parentsare impacted. Principles of fundamental justice require a timely post-apprehension hearing to determine the validity of the apprehension(See KLW).

Further, depending upon the complexity of the case and the particular circumstances of the parents, the principles offundamental justice may require that, in the context of a contested hearing, the parents be represented by counsel (See New Brunswick). [37] Both New Brunswick and KLW were decided in the context of ongoing disputes between the parents and the child protectionauthorities. [38] In the case of Manitoba , a 14 year old child required blood transfusions to prevent severe damage to her health.

Both the child andher parents refused blood transfusions on the basis that their faith did not allow her to receive blood products. Child protection authoritiesapprehended the child and obtained a treatment order for the transfusions. The transfusions were administered. At the first courtappearance, child protection authorities sought to withdraw their application, as the medical emergency had been addressed and the childhad been returned to her parents.

The parents sought Charter relief, in the form of a declaration and damages, on the basis that there hadbeen a delay between the apprehension and the court hearing, which breached principles of procedural fairness. [39] The parents in Manitoba relied upon case law which establishes that principles of fundamental justice require a full, fair, and prompthearing when a child is being held by the state.

They argued that a post-apprehension hearing is mandatory and is the only effective wayto ensure that Charter rights are protected and child protection agencies held accountable. [40] The Manitoba Court of Appeal disagreed, and distinguished those cases mandating a prompt post-apprehension hearing, stating atparagraph 36: The requirement for a prompt hearing with all the attendant fair trial procedures presupposes a fundamental dispute with respect to thecustody of the child.

The statute and the jurisprudence arising from the statute are all premised on a situation where there is a lisbetween the state and the parents and a further order is being requested from the court. [41] The case before me is distinguishable from New Brunswick and KLW on the same basis. [42] Counsel for the parents argues that the relationship between parents and social workers is inherently coercive. He points out thatthe legislation does not require parents to obtain independent legal advice prior to signing a Plan of Care Agreement.

He argues that theprovisions of the Act are not complied with because few communities have Child and Family Service Committees (which areresponsible for developing a Plan of Care Agreement), and because information is not, in practice, provided to the parents in the propermanner. [43] When the materials and submissions presented by Counsel for the parents are carefully examined, one sees that the real issue ofconcern is the validity of the consent given by the parents. [44] It must be noted that non-compliance with legislation is a different issue than the constitutional validity of legislation.

Further,although it is alleged that the legislation is generally not complied with, there is no evidence before the Court to support the proposition. [45] Counsel for the parents further submits that parents who wish to contest an apprehension will be reluctant to do so because of theembarrassment and stigma of court proceedings, leading them to agree to a Plan of Care when they do not truly agree. For this reason, hesubmits independent review by the courts should be mandatory for all Plan of Care Agreements.

The converse is that parents who arestruggling and want to seek the help of the Director over the short term may be reluctant to do so if they know that the matter will go tocourt regardless of their wishes. [46] The legislation sets out a comprehensive framework for establishing a Plan of Care Agreement, which is designed to ensure that

parents are involved in the process, information is provided to the parents about their options, the matter is brought to court in a timely manner if parents do not participate or do not consent, and that participation in Plan of Care Agreements is truly voluntary.

It is designed to facilitate conciliation and joint problem solving in those instances when that is appropriate and in the best interests of the child, while at the same time ensuring parental rights are protected. [ 47 ] The Court is being asked to strike down legislation in the absence of any evidence to suggest that the regime does not work as intended. I am not prepared to do so. [ 48 ] I find that Counsel for the parents has failed to establish that the provisions of the Child and Family Services Act relating to Plan of Care Agreements breach

section 7 of the Charter . VII. CONCLUSION [ 49 ] Is the application to have the Plan of Care Agreement provisions of the Child and Family Services Act declared unconstitutional moot, and, if so, should the Court exercise its discretion to hear it in any event? The application is moot but the Court should hear it in any event. [ 50 ] Do the provisions of the Child and Family Services Act relating to Plan of Care Agreements breach

section 7 of the Charter ? No. [ 51 ] If the provisions do breach

section 7 of the Charter , are they saved by

section 1 of the Charter? Not necessary to answer. [ 52 ] If the provisions do breach

section 7 of the Charter and are not saved by

section 1 of the Charter, what is the appropriate remedy? Not necessary to answer. Dated at the City of Iqaluit this 7th day of April, 2011

___________________ Justice S. Cooper Nunavut Court of Justice