2012 NUCJ 03, 2012 NUCJ 03

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Nunavut (Director of Child and Family Services) v., J.A. and J.N. 2012 NUCJ 03 Date of Judgment: 20120214 Docket Number: 17-11-336-CHW Registry: Iqaluit Applicant: Director of Child and Family Services -and- Respondents: J.A. and J.N. ________________________________________________________________________ Before: The Honourable Mr. Justice E.

Johnson Counsel (Applicant): Michael Chandler and Sheila MacPherson Counsel (Respondent J.A.): Jack Squire Counsel (Respondent J.N.) Andrea Smart Location Heard: Iqaluit, Nunavut Date Heard: January 17, 2012 Matters: Child and Family Services Act (Nunavut) , S.N.W.T. 1998, c. 34, as amended by Statutes Enacted Under

Section 76.05 of the Nunavut Act ss. 2 (f)(i)(k), 3 (d)(c), 26.1, 26.2, 27 , 28 . REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The applicant apprehended the child R.N. under the Child and Family Services Act , S.N.W.T. 1998, c. 34, as amended by s. 76.05 of the Nunavut Act, S.C. 1993, c. 28 (CFSA) on May 17, 2011, in community X. [ 2 ] The applicant later admitted that the parents were improperly served with a notice of motion requesting confirmation that the applicant had grounds to apprehend the child. The applicant agreed that a new hearing should be held and the hearing was set for early October.

For various reasons the hearing was adjourned until January 17, 2012. [ 3 ] This application is the first one heard by this Court since the Legislative Assembly of Nunavut amended the CFSA in response to the judgment of Kilpatrick J. in PE v The Director of Child and Family Services, 2010 NUCJ 24 , 2010 CarswellNun 18.

Section 26(1) created a new step in an apprehension called an “initial hearing” that requires the Director to move quickly after an apprehension to serve the parents so that a hearing is held within nine days. [ 4 ] The arguments raised issues on the evidence required, the burden of proof, and the authority of the Court to order that the child be returned to the parents. II.

BACKGROUND [ 5 ] On May 31, the applicant served the parents with a notice of motion confirming the apprehension returnable on June 2 at the City of Iqaluit in Justice of the Peace Court. [ 6 ] The parents did not appear before Justice of the Peace Parks on this “initial hearing” and he granted an order entitled First Stage Child Protection Order confirming that the child was in need of protection.

He also set the matter over to June 15 to be spoken to with respect to setting a date for a contested second stage hearing. [ 7 ] On June 10, 2011, the applicant filed a notice of motion requesting permanent custody of R.N. and the application was subsequently adjourned to September 22. Pending the hearing of the application, the child was placed with foster parents in Community X and later in Community Y. [ 8 ] In late June, counsel for the mother and father were appointed. On August 8, Counsel for the mother filed a motion and supporting affidavit returnable on September 22.

The motion requested that the Order of Justice of the Peace Parks be vacated and that an interim hearing proceed pursuant to

section 26.1 of the CFSA .

The motion also requested that pending the hearing of the motion the child be returned to the mother, subject to the supervision of the applicant or in the alternative that the mother be granted access a minimum of one week per month in community X. [ 9 ] On September 19, counsel for the father filed a similar application requesting that the child be returned to the interim care of both mother and father or in the alternative that the parents have access once a month in community X. [ 10 ] The hearing of the motions did not proceed on September 22, because of a court scheduling conflict and was adjourned to October 5.

The hearing did not proceed on that date because telephone problems prevented the father’s counsel from participating. The hearing was adjourned to October 28. It was then adjourned to January 17 at the joint request of counsel for the parties. [ 11 ] The parents have not had access to the child since he was transported to Winnipeg in mid June for medical treatment. III. EVIDENCE

[ 12 ] The applicant and the parents rely on the affidavits filed in support of the motions. [ 13 ] At the hearing, the applicant also led viva voce evidence from Norman Murray (Murray), the Director of Child Welfare and he was cross-examined by the mother’s counsel. A. Director [ 14 ] Murray’s evidence was a mixture of hearsay from the Director’s files and personal knowledge from his involvement in the file at a number of junctures.

The written notes on the file indicate that on November 23, 2009, a nurse expressed concern about possible child abuse because the child had suffered rib fractures and a fracture of the left femur. However, after investigation the file was closed because there was no proof of intentional harm. [ 15 ] A note to the file dated July 2010, indicated the father was convicted of family assault with weapons, drugs and drinking. He was sentenced to jail and placed on probation for one year.

On July 11, 2010, this Court sent a letter to the Director with a transcript of the sentencing of the father expressing concern for the welfare of the children. [ 16 ] A note to the file on February 11, 2011, indicated that R.N. was taken by air ambulance from community X to Rankin Inlet to be treated for a broken elbow. [ 17 ] On May 3, 2011, the parents brought R.N. to the Health Centre and Dr. Moffat treated him for a fractured fibia. A May 4, screening report indicates Dr.

Moffat called Social Services noting R.N.’s multiple rib, wrist and leg fractures. [ 18 ] Notes to the file dated May 17, indicate that social worker Mary Angidlik was sent to community X to investigate the issues as explained by the Health Centre and the RCMP. She was advised by the nurse to go with the RCMP if she was going to apprehend the children. She spoke with R.A., a relative of the parents who had looked after R.N. when the father was in jail. The social worker decided to apprehend the child.

She attended the family home on the same day with the RCMP officers, R.A., and other members of the extended family to make the apprehension. Constable LaRose and another officer entered the family home and found R.N. sitting in a chair while the parents were sleeping. The father woke up and refused to surrender the child to the police. The mother intervened and took the crying child from the father.

The father tried to prevent the removal of the child from the residence and was taken to the ground by the RCMP and handcuffed. [ 19 ] The child was placed with R.A. and she agreed to be R.N.’s foster parent. [ 20 ] On May 20, Mary Angidlik noted that R.A. wanted to take R.N. with her to community Y because the mother and father would not stay away from her and leave her alone. [ 21 ] On May 23, Mary Angidlik noted the mother went to R.A.’s home and removed R.N. from the home.

However, R.N. was eventually returned to R.A.’s care with the assistance of the RCMP. [ 22 ] The RCMP met with the nurses and they agreed that R.A. and R.N. should be relocated to community Y because of the past history of violence between the mother and the father. [ 23 ] On May 25, Mary Angidlik noted that the regional office in Rankin Inlet rejected the relocation idea. The regional office wanted to remove the child from R.A. and put him in the care of his maternal grandmother, M.A.

They also wanted to enter into a voluntary care agreement with the parents that allowed them unsupervised access three times a week. [ 24 ] The Nurse in Charge disagreed with returning the child to the parents and in late May notified Murray about her concerns. Murray

took over the file and directed the social worker to file the usual motion confirming the apprehension. [ 25 ] The file noted that on June 13, the maternal grandmother took R.N to the Health Centre for treatment of a broken collarbone. R. A. escorted R.N. to Winnipeg for treatment and then resumed caring for R.N in community Y. [ 26 ] A note to the file dated June 27, indicated that Carol Ducharme, M.S.W. from the Health Sciences Centre Child Protection Clinic in Winnipeg drafted a report dated June 14.

It stated there were concerns about child abuse and neglect because over the past 18 months the child presented for medical treatment for injuries including multiple fractures on different occasions as well as bruising and malnutrition. The report continued that R.N. had incurred five separate fractures over a period of 15 months. They also discovered that about three weeks earlier he had suffered some rib fractures. [ 27 ] Murray contacted a Dr. Ferguson and spoke with him about the alleged child abuse. Dr.

Ferguson convinced Murray that there was no other plausible explanation for the injuries except child abuse. He recommended that the department obtain a temporary order of custody for the child and his older brother and have them reside outside of the community where the parents resided. [ 28 ] The file noted that on July 6, Dr. Ferguson wrote to Dr Moffat describing the injuries suffered by the child. A Dr. Reid described the forearm fracture as a nightstick or defensive fracture from guarding his face from a blow. Dr.

Ferguson stated it was apparent that R.N. requires long-term protection from his immediate biological family, parents and grandparents. [ 29 ] In cross-examination, Murray acknowledged that it was important to know if the injuries were the result of accidental or intentional conduct and that there was nothing in the file explaining how the broken bones occurred.

He also agreed there was nothing in the file that indicated that the parents had inflicted the injuries. [ 30 ] Murray acknowledged that the CFSA permits a child protection worker to enter into a voluntary service agreement with the parents for the period between the apprehension and a court order or plan of care agreement. However, he believed that the voluntary service option was not authorized by the CFSA after a child had been apprehended. [ 31 ] Murray also acknowledged the conflict within the department about whether the child should be returned to the parents.

Mary Angidlik wanted the child moved to community Y and cared for by foster parents. The Rankin Inlet Office wanted to negotiate a voluntary support agreement with the parents and return the child to their care. Murray overruled the Rankin Inlet Office and told the social worker she had to go to court. He believed the Department could not use a voluntary support agreement because the child had already been apprehended. [ 32 ] Murray acknowledged that the mother contacted the department to find out where her son was located.

She was told to contact a lawyer and have the lawyer speak with the Director’s legal counsel. He testified that he was not more upfront with the parents because he was trying to protect the child and the parents had harassed the foster parents. [ 33 ] Murray testified that the parents were told about R.N’s relocation to community Y after he had been moved there. He acknowledged that he decided that the parents should be denied access even though the parents were not interviewed for an explanation. He testified that he not draw a conclusion that child abuse had occurred.

However, he accepted the medical information and felt the courts should decide whether the parents should have access. He felt the parents should be restricted to videoconferencing access and should not be left alone with the child. [ 34 ] Murray testified that he was not qualified to express an opinion about whether the injuries were the result of accidental or intentional conduct. He maintained this position while acknowledging that later information indicated that two of the accidents occurred when the child was not in his mother’s care.

One of the injuries occurred when the maternal grandparents cared for him and one occurred when he was in R.A.’s care in community Y. [ 35 ] Murray acknowledged the comment in a case note of a social worker that the child was very fragile. While this comment gave him some basis for reassessment he still felt his decision was justified because of the number of broken bones.

B. Mother [ 36 ] The mother’s affidavit deposes that the Director apprehended both R.N. and his older brother J.O.N., despite the fact that J.O.N. had never suffered any injuries that required hospitalization. J.O.N. has since been returned to her care. [ 37 ] The mother denies ever hitting her children. Unfortunately R.N. is accident-prone and suffered four different injuries in his young life, two of which were when he was not in her care. Two accidents occurred when he was in her care. The first one occurred when R.N. was 10 or 11 months old.

She was bathing the two boys in the bathroom and was focused on J.O.N. While she dealt with him R.N. made an attempt to climb a low window ledge and slipped falling awkwardly and broke his arm. The second one occurred in the summer of 2011 and resulted in the apprehension. R.N. and J.O.N. were playing on the kitchen floor while she was working. She left the room for a few minutes to go to the bathroom.

In the few minutes she was away R.N. crawled into a ground floor cupboard and J.O.N. slammed the door and broke his leg. [ 38 ] The mother now realizes that R.N. requires constant supervision because of his over-activity and fragility. [ 39 ] The other injuries occurred when her parents were caring for R.N. The first one occurred several months after he broke his arm. She was in Winnipeg for a medical appointment and left him in a room with her parents. R. N. was jumping on the bed with some other children but bounced too close to the edge and fell off. The second one occurred after the apprehension.

R.N. was running around a room and collided with an older nephew and broke his collarbone. [ 40 ] Up to the time of the incident when R.N. broke his collarbone in June, she was exercising access from 1:00 p.m. to 5 p.m. three days a week. However, since that time she has had no access to him. C. Father [ 41 ] The father deposes that he has never hurt R.N. and that he was not in his care for any of the injuries. [ 42 ] He acknowledges that in the past he abused alcohol and was convicted of assaulting his spouse. He spent some time in jail for the assault and has learned from that experience.

He no longer abuses alcohol and is getting along well with his spouse. [ 43 ] The father and mother miss R.N. very much and want him back in their home, under supervision if necessary. In the meantime he wants telephone access on a regular basis and physical access at least once per month. [ 44 ] Both mother and father are willing to attend courses or counseling suggested by the Director to improve their parenting. IV. ISSUES [ 45 ] The applications raise four issues for the Court to determine. A. What is the burden of proof on the Director at an initial hearing under

Section 26.1(1) of the CFSA ? B. Has the Director met the burden of proof in this case? C. Does this Court have the authority under

Section 26.1(1) to order that a child who was apprehended be returned to the parents? D. Does

section 26.1 authorize a court to allow access to the parents at the discretion of the Director?

A. Burden of Proof (i).

Arguments A.i.1 Director [46] Relying on AJ (Re), [1996] BCJ No 2786 (BCPC) [A.J.]; British Columbia (Director of Family and Child Services) v WHK, 2003BCPC 307, [2003] BCJ No 1982 [W.H.K.]; Prince Edward Island (Director of Child Welfare) v DM (PE SCTD),[1998] PEI J No 34, 163 Nfld & PEIR 36 [D.M.]; Nova Scotia (Community Services) v A.M., 2010 NSSC 227, [1010] NSJ No 339[A.M.]; K.M.T. v J.D.T., [1999] BCJ No 822, 87 ACWS (3d) 498 (BCPC) [J.D.T.], the Director argues the burden of proof is similar toa preliminary inquiry or a bail hearing. [47] These cases indicate that the Director must present some evidence which, if believed by the Judge could lead to a finding that thechild is in need of protection.

The Court is not required to make any credibility findings and factual disputes should be resolved in favorof the Director. A.i.2 Parents [48] Counsel for the mother acknowledged that the cases relied on by the Director do indicate that the standard of proof to be met islower than at a hearing where a court is determining whether a child is in need of protection under

section 27 of the CFSA. Any disputeabout the facts should be resolved in favour of the Director. However, he argues that in A.J., Grannary J. also noted that a dispute aboutthe conclusions to be drawn from those facts may result in the child being returned to a parent. In other words there should be nospeculation and a principle similar to res ipsa loquitur (the thing speaks for itself) is not applicable.

In the case at bar the facts are not indispute but there is a serious dispute about the conclusions to be drawn from those facts as to whether the injuries were caused byaccidental or deliberate conduct. [49] At para 21 of A.M., Forgerson J. held that a court should consider the circumstances, as they existed at the date of the hearing. (ii). Analysis [50] As discussed in A.M., in Nova Scotia the test is set out in

section 39 of the equivalent legislation to the CFSA as being whetherthere were “reasonable and probable grounds” to make the apprehension.

Forgerson J. accepted and applied the words of Levy J. inanother case that compared the test as being similar to the test used in a preliminary inquiry. [51] Manitoba uses the same reasonable and probable test as Nova Scotia. [52] In Prince Edward Island and the Yukon, the test is whether the judge is satisfied that “there is a prima facie case that the child is inneed of protective intervention”. [53] In British Columbia, Ontario, New Brunswick, the Northwest Territories and Nunavut, the test is whether there are “reasonablegrounds to believe that the child needs protection”. [54] In Alberta, Newfoundland, Saskatchewan, there is no test mentioned. [55] In Quebec, it is where the tribunal “concludes that the security or development of the child is in danger”.

[ 56 ] I am satisfied that the test the Director must meet at an initial hearing under s. 26.1 is lower than at a hearing to determine if a child is in need of protection under s. 27 . [ 57 ] In the British Columbia case of A.J., Grannary J. described the test as follows: [12] I've had the benefit of reading two decisions that were referred to me, the first being In the Matter of the Child. Family and Community Service Act and A.V., R.A. and M.V.S., L.V.S. and V. I'm not quite certain exactly what the citation would be as most of it's blacked out in the title, but it's a decision of Judge Levis in Fort St. John on the 24th of April, 1996. He had to consider what the purpose of

Section 35 was and he says this at page one: "It is my view that at a presentation hearing the court must be satisfied that the Director has fully complied with the provisions of the Act authorizing the removal of a child or children. Upon the court being satisfied that the Director has complied with those provisions of the Act, the order sought by, the Director is granted. He goes on further to say that, "It is also my view that the persons referred to in

Section 34 and any other persons with an interest who are present at the presentation hearing would be entitled to bring to the attention of the court any defect in compliance by the Director which could result in nullifying the removal of the child or children or vary the order sought by the Director. Their participation at that stage would be limited to that aspect of the presentation hearing and would not include the issue of whether the child or children are, in fact, in need of protection. Now, I agree with that assessment of the legislation.

Here, it's slightly different because the issue that has arisen is where are the children going to go pending the protection hearing. In my view, the presentation hearing is designed to consider the facts upon which the apprehension was made. If there is a dispute about the facts, then they are resolved in favour of the Director.

If there is a dispute about the conclusion to be drawn from facts that aren't in dispute, then that may very well result in the child being returned to a parent.” [ 58 ] Later in W.H.K., Grannary J. adopted the following statements from earlier cases: [14] The law in this area is fairly clear.

I have not been shown any authority to the contrary and I would welcome clarification on this area, as well, by way of an appeal, but at present the law is pretty clear and it says that: If there is admissible evidence at a presentation hearing which, if believed by the protection hearing judge, could lead to a finding that the child is in need of protection, the child should remain in the care of the Director, pending a protection hearing. If the evidence presented suggests a risk of harm to the child, the test is much lower than the balance of probabilities.

It should result in the Director being granted interim custody, pending a protection hearing. K.M.T. v. J.D.T. [1999] B.C.J. No. 822 . If, however, the protection concerns can be addressed by having the child reside with the parents under terms of supervision, those terms may be determined by the court. R. v. A.T. [1999] B.C.J. No. 624 . I am satisfied here that those terms aren't likely to occur and that the child at the present moment cannot be adequately protected by a supervision order.

At a presentation hearing the interim order made must ensure the best interests of the child are preserved and, as such, the court must have regard for the principles set out in

Section 2 and 3 of the Act. R. v. B.S. [1998] B.C.J. No. 2553 . [ 59 ] I adopt these statements for this Court and will apply them in analyzing the evidence I heard. [ 60 ] Where a child has been apprehended under the CFSA , a judge of this Court must be satisfied that there is some evidence to believe the child is in need of protection. The judge should look at the reasons given for the apprehension and be satisfied that there is some evidence that it falls within one of the categories listed in section 7(3) of the CFSA. [ 61 ] Section 7(3)(

n) deals with failing to provide adequate care and states: “the child's parent is unavailable or unable or unwilling to properly care for the child and the child's extended family has not made adequate provision for the child's care…” B. Has the Director met the burden of proof? (i). Arguments B.i.1 Director [ 62 ] The Director argues that he has met these tests. The medical evidence of five fractures in seventeen months is suspicious and suggests possible child abuse.

The facts are similar to the situation where a court might use the res ipsa loquitur tort principle. [ 63 ] There is a body of other information that was sufficient to catch the Director’s attention and force him to take action to apprehend the child. This court sent a transcript to the Director saying, “For the Director’s information and action”. Dr. Ferguson expressed the strong opinion that the only explanation for the number of injuries was child abuse. Dr. Reid expressed the opinion that the arm fracture was a defensive injury. Finally Ms.

Ducharme expressed her opinion that the child had been physically abused. [ 64 ] Under these circumstances, the Director had to take some action to protect the child. The test, as applied in the cases, relied on by the Director is whether the Director acted reasonably. In deciding this question, a court takes a quick look at the evidence but leaves the bigger issues for the second stage hearing. There will only be a small number of cases where a court will refuse to grant an order. [ 65 ] In most cases a court will not have the amount of evidence that is present in this case.

The additional evidence does raise some issues about whether the injuries were caused accidentally or deliberately. However, there is sufficient evidence to satisfy the low threshold in an initial hearing. The bigger issues involving possible findings on credibility and expert conclusions on child abuse should be left to a second stage hearing. B.i.2 Parents [ 66 ] Counsel for the mother argues that the initial evidence before the Justice of the Peace consisted of the opinion of the Nurse in Charge that an incident of child abuse may have occurred -without particulars.

[ 67 ] The second affidavit from the social worker that apprehended the child filed on June 10, in support of the application for permanent custody provided some particulars about the facts that supported the opinion of the Nurse in Charge. It stated that: “Based upon the medical information it appears this child has suffered a broken leg, a broken arm, broken ribs, injured hips and all by 3 1/2 years of age. More importantly the opinion of the specialist who cared for the child labeled these injuries as abusive.” [ 68 ] The parents subsequently filed affidavits that did not dispute that these injuries occurred.

However, they argue that there is no evidence that the injuries were deliberately inflicted. In particular, the father was not present when any of the injuries occurred and the mother was only present for two of them. The other two injuries occurred when the children were in the care of the maternal grandparents and R.A. [ 69 ] The parents argue that the conclusions reached by the medical people who treated the child amount to speculation. The speculation is undermined by the return of J.O.N. to the care of the parents.

If they were abusive parents it is incongruous that J.O.N. would be returned to their care. [ 70 ] The parents argue that the Director has not met the test and the child should be returned to their care. (ii). Analysis [ 71 ] Counsel for the Director objected a number of times during Murray’s cross-examination because the mother’s counsel was probing far in excess of what was required in this type of hearing. He argued the second stage hearing would cover that level of cross- examination and that the Court should not allow an initial hearing to turn into a hearing under

section 27 . [ 72 ] I overruled him because I pointed out that counsel had agreed at the outset that I was conducting a hearing de novo. This type of application is usually held before a Justice of the Peace and it is the first time and may be the last time it will end up before a judge of this Court other than by way of an appeal under

section 88. It came before me because Counsel for the Director conceded that the parents had not been properly served and that a new hearing should be held. Despite the best efforts of counsel and the Court the hearing was delayed. [ 73 ] An unfortunate consequence is that the parents have not had access since the child was moved to community Y.

However, one of the positive consequences is that this Court now has much more information than was available at the time of the initial apprehension and I agree that I should consider all the new information in analyzing the arguments. [ 74 ] Justices of the Peace throughout Nunavut regularly hear applications for an order at an initial hearing. They will have much less information before them than I have at this unusual hearing. Their job is to ensure that the parents have been properly served with notice of the hearing and whether they are present in court.

If they are present they should be given the opportunity to speak to the allegations. [ 75 ] Since it is unlikely the parents will have had access to legal counsel, there will be no affidavit evidence for the Justice of the Peace to consider. If the parents wish to give evidence they should be sworn. After consideration of the parents’ evidence and the affidavit evidence filed by the social worker, the Justice of the Peace should be satisfied that there is some evidence to support the

section 7 grounds specified for the apprehension. [ 76 ] If there is contradictory evidence the Justice of the Peace should not attempt to make findings of credibility and should resolve the conflicts in favour of the Director. [ 77 ] In the case at bar, the Director relied on sections 7(3) (a),(

b) and (n). The initial evidence filed was insufficient to satisfy the test because it gave neither particulars to support the allegations of child abuse nor any evidence to suggest the parents were unavailable or unwilling to care for the child. The second affidavit provided sufficient evidence to justify the apprehension under subsections (

a) and (

b) because of the particulars about the injuries incurred and I would have upheld an order made by the Justice of the Peace if there had been

an appeal. [ 78 ] I now have the benefit of Murray’s evidence at the hearing as summarized earlier as well as the affidavits filed by the parents. [ 79 ] The parents depose that R.N. is fragile and accident-prone. They accept he has suffered the injuries described by the health professionals. They agree that they have learned from what has happened and that he requires special care that was missing in the past. However, they have adamantly denied that they hit the child or that any of their actions were deliberate.

There is some credence to their evidence because one of the injuries occurred when the maternal grandparents were caring for R.N and the other when he was cared for by R.A. The mother’s explanations for the injuries when he was in her care are plausible and accidents are common with all children. [ 80 ] There is further support for the parent’s arguments in the Director’s return of J.O.N. to their care. If the parents were abusive and neglectful about one child it is a rational conclusion that they would also be abusive with another child.

The return of J.O.N. refutes any of the evidence that suggests section 7(3) (

n) was applicable. The only issue is whether there is some evidence of child abuse under section 7(3) (

a) and (b). [ 81 ] Sections 7(3)(

a) and (

b) deal with potential child abuse and state:

a) the child has suffered physical harm inflicted by the child's parent or caused by the parent's unwillingness or inability to care and provide for or supervise and protect the child adequately; (

b) there is a substantial risk that the child will suffer physical harm inflicted by the child's parent or caused by the parent's unwillingness or inability to care and provide for or supervise and protect the child adequately; [ 82 ] Subsection (

a) describes two situations. The first is where a parent deliberately inflicts physical harm on the child and the second is where the child suffers physical injury caused by inadequate supervision. [ 83 ] The only evidence that suggests the parents may have physically abused the child is the comment by Dr. Reid describing the forearm fracture as a nightstick or defensive fracture from guarding his face from a blow. This injury occurred when the mother was caring for R.N. She described it at paragraph 7 of her affidavit as summarized above. She was bathing the two boys in the bathroom and was focused on J.O.N.

While she dealt with him R.N. made an attempt to climb a low window ledge and slipped falling awkwardly and broke his arm. [ 84 ] Dr. Reid’s evidence was not put before me and is therefore hearsay. He is contradicted by the mother’s affidavit evidence. This is not a conflict in the facts as alleged by the social workers and the parents as occurred in A.J. and W.H.K. It is a conflict between a hearsay opinion and the mother’s sworn evidence.

As a result there is no factual dispute that should be resolved in favour of the Director on this issue. [ 85 ] I am satisfied on the evidence before me that the parents did not deliberately harm the child. The injuries that occurred were caused by accidents, not deliberate conduct. [ 86 ] However, there is an issue about whether there was adequate supervision. The mother admits that she did not adequately supervise the child on the two occasions when he had accidents under her care. She is now aware of the child’s fragility and his propensity to have accidents.

Both parents have indicated a desire to take parenting programs and will ensure that he is supervised and given special attention in the future.

[ 87 ] Subsection (

b) envisages a risk of future harm from the deliberate actions of the parents or from inadequate supervision. Given my finding on (

a) there is no risk of harm from future deliberate actions by the parents. The parents have addressed the risk of future harm from inadequate supervision. [ 88 ] As I noted earlier, the affidavit evidence submitted to Justice of the Peace Parks was insufficient to establish that the child was in need of protection. The subsequent evidence as summarized by Director’s counsel established the need for the apprehension and satisfied the test for an initial hearing. However, before a new hearing was held the parents obtained legal counsel and filed the motion requesting the return of the child.

In support of that motion the parents filed affidavits that addressed the concerns raised by the new evidence received by the Director. I also had the benefit of hearing the evidence and cross-examination of the Director. After considering all of the evidence, I am satisfied that the Director did not satisfy the test for an initial hearing. C. Does this Court have the authority under

Section 26.1(1) to order that a child who was apprehended be returned to the parents? [ 89 ] In W.H.K., D.M., and J.D.T., the legislation specifically authorizes the return of the child to the parents as one of the options open to a judge at an initial hearing. All other jurisdictions have a similar provision except the Northwest Territories and Nunavut. Considerable argument was devoted to whether this court had the jurisdiction to return the child to the parents if

section 26.1 (

a) and (

b) were satisfied. Since I have found that

section 26.1 was not satisfied I do not have to answer that question. D. Does

section 26.1 authorize a court to allow access to the parents at the discretion of the Director? [ 90 ] Because of my finding, I do not have to answer this question either. V. CONCLUSION [ 91 ] I order that the child be returned to the parents within 14 days of the date of this judgment subject to the following terms: (

a) The parents shall not leave the child unattended at any time (

b) The parents shall not use any physical discipline on the child (

c) The parents shall not be under the influence of alcohol or consume alcohol during any time that the child is their care (

d) The same terms shall apply to any other person who temporarily cares for the child (

e) The parents shall participate in any parenting course recommended by the Director Dated at the City of Iqaluit this 14th day of February, 2012 _______________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice

Supplementary Reasons for Judgment [1] Subsequent to the release of the reasons for judgment in this matter, Counsel for the parties advised the Clerk that they were having difficulties settling the terms of a formal order. [2] I arranged a conference call for Friday February 24, 2012. Counsel advised me that it was their view that I did not have jurisdiction to impose conditions on the parents because I had found that the Director had not satisfied the burden of proof at the initial hearing under

Section 26.1(1). [3] I concluded that Counsel were correct and that I would address the problem by issuing these supplementary reasons. [4] Counsel for the mother had suggested in argument that, if I found the Director had met the burden of proof, I could still order the children returned to the parents on the conditions specified in the judgment.

I clearly misunderstood his argument and I accept that I did not have jurisdiction to impose the conditions in judgment in the face of my finding that the Director had not met the burden of proof. [5] The Formal Order should simply read that the Child be returned to the parents. Dated at the City of Iqaluit this 27th day of February, 2012 _______________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice