Director of Child and Family Services v. A.M. and N.N., 2018 NUCJ 22

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Director of Child and Family Services v. A.M. and N.N. , 2018 NUCJ 22 Date: 20180807 Docket: 17-17-388-CHW Registry: Iqaluit Appellant: Director of Child and Family Services -and- Respondents: A.M. and N.N. _____________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Applicant A.M.): Stefanie Laurella Counsel (Director of Child and Family Services): Sheila MacPherson Counsel (Respondent N.N.): Caroline Pothemont Location Heard: Iqaluit, Nunavut Date Heard: February 27, 2018 Matters:

Interpretation of Child and Family Services Act sections 26.1 and 28 . REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements. Letters have been assigned at random. I. OVERVIEW [ 1 ] In this application, the parties have asked the Court to decide whether a judge of the Nunavut Court of Justice has jurisdiction to return an apprehended child to one or both parents on an interim or temporary basis. The merits of the case were not presented to me.

This decision is confined to interpreting sections 26 , 26.1 , and 28 of the Child and Family Services Act [ Act ]. [1] [ 2 ] Each party filed briefs and made oral submissions. I reserved my decision, and these are my reasons for judgment. II. BACKGROUND [ 3 ] Children are vulnerable. They require care, love, and protection to grow and flourish. We recognize that parents have primary responsibility for raising their children. However, from time-to-time families in distress need outside help. Sometimes, too, a child’s circumstances may require outside intervention.

As a society, we have sought to balance the rights of a parent against the role of the state in assisting children in need of protection . [ 4 ] In Canada, family law is the constitutional responsibility of the territories and provinces. Each territory and province has enacted special procedures and rules. In Nunavut, the governing legislation is the Act . A brief look at the child protection regime will assist in an understanding of the issue in this application.

I will reproduce the exact wording of the relevant sections later . [ 5 ] In Nunavut, anyone who has reasonable grounds to believe a child needs protection has a duty to report that belief to a child protection worker [worker] or a peace officer. [2] That worker or peace officer may then apprehend the child if he or she has reasonable grounds to believe the child’s health or safety is in danger. [3] A worker or peace officer may also apprehend a child where no report has been made if he or she has reasonable grounds to believe the child needs protection, and the child’s health or safety is in danger. [4] [ 6 ] A child’s apprehension then sets in motion a series of mandated court procedures.

In the context of this case, I will focus on a child who has been apprehended, but has not been returned to the parents by the Court, the Director, or through an interim care agreement. [5]

[ 7 ] The Director of Child and Family Services [Director] must bring an application to Court within four days of the apprehension for a Court Order declaring the child to be in need of protection. [6] The hearing of that application must be heard by the Court no later than nine days after the application is filed. [7] The initial post-apprehension hearing must be completed no later than 20 days after the apprehension. [8] [ 8 ] A judge may make several different orders at the end of the initial post-apprehension hearing. The judge may make a

section 26.1 interim order, make a

section 28 child protection order, or dismiss the application and order the return of the child to whoever had lawful custody at the time of the apprehension. One of the available child protection orders is a return of the child subject to the supervision of a worker. [9] The interim order, and when it is available, is the subject of this application. [ 9 ] In this case, six-month-old A.N. was apprehended by the Director on July 12, 2017. The initial confirmation hearing was heard by Justice of the Peace Calvin Clark on August 4, 2017. J.P.

Clark ordered the child to be placed under the interim care of the Director. The parents were granted access during that interim period in accordance with what the Director determined to be the child’s best interests. [ 10 ] On September 8, 2017, the Director applied for a six-month temporary custody order pursuant to section 28(1) (

c) of the Act . This application has been adjourned several times and was still before the Court at the time of writing. In the meantime, on January 18, 2018, the child’s mother applied to have the child returned to her care on an interim basis pursuant to

section 26.1 of the Act . The child’s father is opposed to both applications as he wants the child returned to him on an interim basis . III. POSITIONS OF THE PARTIES A. The Applicant mother [ 11 ] In her written brief, Ms. Stefanie Laurella said the Court has jurisdiction to order the interim return of an apprehended child to a parent at any stage of the proceedings. The applicant asserts that the Court’s authority is grounded in the permissive language of

section 26.1 of the Act . [10] The relevant principles of statutory

interpretation, she continued, ought to be applied in the context of the Act as a whole. The Act ought to be given a “contextual liberal

interpretation to capture the true intention of the legislation”. [11] [ 12 ] Counsel reminded the Court that the Act ’s

interpretation

section requires it be administered and interpreted in the best interests of the child, with the least amount of disruption to the family. Furthermore, the applicant argued the Act : defines an “interim order” as “an interim child protection order made under

section 26.1”. [While] A “child protection order” is defined as “a child protection order made under

section 28 ”. [Therefore,] [a]t its core, an interim order is a s. 28 order made on an interim basis. [12] [ 13 ] As I noted earlier,

section 28 of the Act sets out the various child protection orders available to the Court. [ 14 ] Counsel then noted that child protection legislation in every other province and territory, except in the Northwest Territories, permits courts to make interim placement orders which return a child to the parent. [13] The applicant then stated that the apprehension of a child infringes a parent’s

section 7 Charter right to security of the person. [14] With this, Ms. Laurella concluded that

section 26.1 is permissive and permits the Court to grant the relief she seeks – the return of the child to his mother on an interim basis . [ 15 ] In her oral submissions, Ms. Laurella reiterated the permissive language of

section 26.1 :

Section 26.1 doesn’t say that an initial confirmation hearing is the only time interim relief can be sought, it’s simply one of the times that interim relief can be sought. [15]

There’s an opportunity here today to interpret the Act in a way that’s both innovative and resourceful and consistent with the statutory

interpretation to reunify children with their families at the earliest available opportunity. [16] B. The father [ 16 ] Ms. Caroline Pothemont represents the father. In her short brief, she wrote that

section 28 of the Act permits this Court to return an apprehended child to his or her own parent even at an interim stage of the proceedings. Ms. Pothemont referred the Court to the situation in Ontario as a model for how this Court ought to interpret Nunavut’s statute. [17] C. The Respondent Director [ 17 ] The Director’s counsel, Ms. Sheila MacPherson, stated that

section 26.1 is “irrelevant” and cannot assist the applicant. The Act , she said, “clearly provides that such an order may only be made on an initial hearing of an application under subsection 24(1) ”. [18] This should be clear from a “plain reading” of the section. [19] [ 18 ] Ms. MacPherson said that the Court may make either an interim order or a child protection order when the

section 26.1 test is met. If the test is not met, the Court must order the return of the child to whoever has lawful custody. The respondent argued that nothing in the Act permits the Court to make a supervision order as sought by the applicant mother. [20] [ 19 ] Respondent’s counsel referred to the “practice” which has developed in Nunavut where the Director seeks an interim order – and not a child protection order – at the initial hearing.

The respondent argued that this practice reflects “the limited scope of an initial hearing, whose purpose is determining the best way to care for the child until there can be a complete examination at a protection hearing”. [21] Ms. MacPherson noted that the application asks the Court to “make a contested child protection order without the benefit of a trial,” arguing that there is no statutory authority for the Court to do so. [22] “None of the orders available to the Court under subsection 28(1) ”, she concluded, “are interim in nature”. [23] [ 20 ] In further support, Ms.

MacPherson cited Manitoba (Director of Child and Family Services) v HH and CG [24] . She submitted that that case established that the “judicial creation of an interim hearing process is not … appropriate”. [25] [ 21 ] On the other hand, should the Court find it has such a jurisdiction, Ms. MacPherson said “it would be contrary to the interests of the child to [use this jurisdiction] without the benefit of complete evidence from all parties, typically presented through viva voce evidence at a hearing”. [26] IV. LAW [ 22 ] My decision in this application rests upon the

interpretation and application of the following Nunavut law. A. Statutes i. Child and Family Services Act [ 23 ] The present application has been made pursuant to

section 26.1 of the Act . [ 24 ]

Section 1 of the Act defines a “child protection order” as an order made under

section 28 , and an “interim order” as an “interim child protection order made under

section 26.1 ”. [27]

[ 25 ]

Section 2 governs the Act ’s

interpretation : (1). … (

a) The paramount objective of this Act is to promote the best interest, protection and well-being of children; … (

f) measures taken for the protection and well-being of children should, as far as possible, promote family and community integrity and continuity; … (

j) there should be no unreasonable delay in making or carrying out a decision affecting a child; (

k) services to children and their families should cause the least amount of disruption to the family and should promote the early reunification of the child with the family. [28] [ 26 ] Section 2(2) and (3) states that the Act “shall be administered and interpreted” according to listed Inuit societal values.

Two of these principles are : • Inuuqatigiitsiarniq – respecting others, relationships and caring for people; and • Pijitsirniq – serving and providing for family, community, or both. [29] [ 27 ] Section 24(1) states: Where a child is apprehended … an application to a court for a declaration that a child needs protection and for a child protection order must be made within four days after the day on which the child is apprehended. [30] [ 28 ] The relevant parts of

section 26 state:

(1) An initial hearing of an application under subsection 24(1) (

a) must be held not later than nine days after the day on which it is filed; and (

b) subject to subsection 3, may be adjourned from time

to time.

(3) Where an application is made under subsection 24(1), an initial hearing must be completed within 20 days after the day on which the child was apprehended, and at the conclusion of the hearing the court may take one of the following actions: (

a) make an interim order under subsection 26.1(1); (

b) make a child protection order under

section 28; or (

c) dismiss the application and direct that the child be returned to the person who had lawful custody of the child when the child was apprehended. [31] [ 29 ] The relevant parts of

section 26.1 state:

(1) On an initial hearing of an application under subsection 24(1), the court may make an interim order that the child remain in the care of the Director, where the court determines that (

a) There are reasonable grounds to believe that the child needs protection; and (

b) The person who apprehended the child, had at the time of the apprehension, reasonable grounds to believe that the child’s health or safety would be in danger if the child were returned to a person having lawful custody of the child at the time the child was apprehended.

(2) An interim order under subsection (1) may include terms and conditions that the court considers appropriate in respect of any person's right of access to the child.

(3) The court shall dismiss the application if it determines that the grounds referred to in paragraphs (1)(

a) and (

b) have not been established. [32] [ 30 ] The court may only grant an interim custody order in favour of the Director if this two-part test is met. Otherwise, the child must be returned to the person who had lawful custody of the child at the time of the apprehension. [ 31 ]

Section 26.2 provides for when an interim order is in effect: An interim order remains in effect until one of the following events occurs: (

a) the order is discharged by the court; (

b) the order is replaced by a child protection order made under

section 28; (

c) the Director withdraws the application, under subsection 26.1(4); or (

d) the Director fails to issue a notice of motion for a hearing on the application for a child protection order within 30 days after the interim order is made. [33]

[ 32 ]

Section 28 sets out the orders which may be made by the judge at the end of the initial post-apprehension hearing and that are in the best interests of the child. The judge may : • return the child to his parent or the person who had actual care of him when he was apprehended; • return the child to his parent or the person who had actual care of him when he was apprehended subject to supervision by a worker under terms and conditions for up to one year; • place the child in the temporary custody of the Director for up to one year on terms and conditions; or • place the child in the permanent custody of the Director on terms and conditions. [34] ii.

Interpretation Act [ 33 ] The

Interpretation Act [35] sets out those principles which govern the

interpretation and application of Nunavut law . [ 34 ]

Section 2 says that the rules of the

Interpretation Act apply to every other act of the Nunavut Legislature unless that other act specifically excludes it. [ 35 ]

Section 10 says that legislation be interpreted as “remedial”. In other words, I must interpret the Act in a manner which provides a remedy or redress. I must give the Act “such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects”. B. Case law [ 36 ] We also look to the Supreme Court of Canada for guidance concerning statutory

interpretation. The fundamental Canadian rule states: The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the entire Act, the object of the Act, and the intention of Parliament. [36] [ 37 ] These are the legal principles and procedures I must apply in this application. V. ISSUE [ 38 ] At its heart, this application poses a single question – does the Court have jurisdiction to make a

section 26.1 interim order in favour of a parent or lawful guardian ? [ 39 ] The Act is clear – a

section 26.1 only permits, on an interim basis, that the child be placed in the care of the Director . [ 40 ] The Court does have jurisdiction to grant a temporary supervision order based on a liberal, remedial, and plain reading

interpretation of

section 28 of the Act . VI. ANALYSIS

[ 41 ] As I have noted, this application turns on the correct

interpretation of Nunavut law. [ 42 ] The applicant says the Court’s jurisdiction to make an interim supervision order at any stage in the proceedings derives from

section 26.1 of the Act . The Director counters saying there is no statutory authority for the Court to make an interim supervision order on a temporary basis. In my view, both positions arise from a mistaken misunderstanding of the Act . A.

Section 26.1 [ 43 ] The applicant has relied on the reference in

section 26.1 to the availability of interim orders. In its ordinary usage, the term interim means provisional or temporary, [37] The Act , though, expressly says that interim orders are only available pursuant to

section 26.1 at the initial post-apprehension hearing . [ 44 ]

Section 26.1, in the context of the legislative scheme and in its ordinary plain meaning, merely highlights the two-part test which the Director must meet to ground a successful application for an interim order at that initial stage. I agree with counsel for the Director concerning the Legislature’s intention in using the permissive “may” in

section 26.1 . If the Court is satisfied the two-part test has been met, then the judge may order either an interim order pursuant to

section 26.1 or a child protection order under

section 28 . If the two- part test has not been met, the judge must dismiss the Director’s application and return the child . [ 45 ] Therefore, the applicant cannot successfully ground her application for a post-apprehension hearing interim order under

section 26.1 [ 46 ] However, that is not the end of the matter . B.

Section 28 [ 47 ] The “Child Protection Hearings” part of the Act does not set out a coherent and easily understandable explanation of the child protection process. One is left to infer that the Legislature contemplated an initial post-apprehension hearing followed at some point by a later child protection hearing. As we have seen,

section 28 merely refers to “the hearing” . [ 48 ]

Section 28 outlines the range of orders which a judge may impose during a child protection hearing.

Section 28 expressly says that a judge may impose various provisional or temporary orders at the hearing. For example,

section 28 says the court may return the child subject to supervision by a worker; or it may make a temporary custody order in favour of the Director, each for a period up to 12 months. The court may do so by including whatever conditions and terms it deems to be just in the circumstances . [ 49 ] By necessary implication, and this is important, the matter will return to court once the temporary order expires . [ 50 ] The Act does not give any guidance as to when this later hearing, or hearings, may or ought to take place. This fact is not surprising.

The circumstances which lead to a child’s apprehension reflect profound dysfunction within the family. Experience has taught us that there are no quick fixes. Apprehended children often remain in the long term temporary custody of the Director. Efforts are made to help the parent(

s) heal to permit the child’s return. This takes time. Consequently, the Act imposes no limit to the availability and timing of the

section 28 hearing(s). [38] [ 51 ] In my view, a plain reading of

section 28 clearly permits a parent to apply for a temporary supervision order notwithstanding that the Director – as in this case – seeks a temporary custody order . VII. DECISION [ 52 ] In the context of the entire legislative scheme, I find that the Act permits any party with standing to seek a

section 28 child

protection order at any stage of the post-apprehension process. Dated at the City of Iqaluit this 7th day of August, 2018 ___________________ Justice P. Bychok Nunavut Court of Justice