Director v. N.W., 2018 BCPC 30

Citation: Director v. N.W. 2018 BCPC 30 Date: 20180206 File No: 41408 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: A.W.B. , born (redacted) BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: N.W. PARENT C.B. PARENT AND File No: 41409 N.W. (1) , born (redacted) BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: N.W. PARENT A.M. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. KOTURBASH Counsel for the Director: Ms. Brice-Nicholson

Counsel for the Parent: Mr. Patterson for N. W. Appearing in person: C. B. Appearing in person: A. M. Place of Hearing: Penticton , B.C. Date of Hearing: January 23, 2018 Date of Judgment: February 6, 2018 Introduction [ 1 ] N.W. applies for a declaration that this court has lost jurisdiction over the Director of Child, Family and Community Services continuing custody application regarding her two children. She argues that a thirteen month delay without any finding that the children are in need of protection is inordinate and not in the best interest of the children.

She asks that the proceedings be terminated and her children returned to her care. [ 2 ] The Director opposes the application, and argues that it has and continues to comply with the all the applicable timelines. [ 3 ] Masseurs A.M. and C.B., the fathers of the children, and the children through their counsel, take no position on the application. Issues 1. Have any of the timelines in the Act been surpassed? 2. Does a loss of jurisdiction automatically flow when a timeline in the Act has been surpassed? 3. Has there been a loss of jurisdiction rendering these proceedings a nullity?

Procedural History [ 4 ] On November 4, 2016, the Director apprehended N.W.’s children who were 11 and 15. [ 5 ] A presentation hearing occurred on November 16, 2016. Pursuant to s 35(2)(

a) an interim order was made placing the custody of the children in the care of the Director. [ 6 ] On December 16, 2016, the Director applied for a 6-month temporary custody order. N.W. did not consent.

The Director nominally commenced the protection hearing and the parties requested an additional 4 days to complete the hearing. [ 7 ] The court was told that neither the social worker, nor N.W.’s counsel were available prior to March 2017. [ 8 ] The court scheduled a family case conference on January 4, 2017. [ 9 ] At the case conference, N.W. agreed that if the Director received the necessary funding she would participate in a parental capacity assessment. [ 10 ] On February 13, the Director confirmed with N.W.’s counsel that it received funding for a parental capacity assessment and that the Dr.

Elterman would be conducting it. [ 11 ] Contrary to her expressed willingness at the case conference, N.W. changed her mind and refused to participate in the assessment. [ 12 ] The protection hearing was scheduled to continue on April 10, 2017, for 4 days. [ 13 ] On February 28, 2017, the Director told the court that N.W. was not willing to participate in the parental capacity assessment.

The court told the Director it would have to make a formal application for the assessment. [ 14 ] A formal application was scheduled for April 25. [ 15 ] The protection hearing scheduled for April 10 was adjourned at N.W.’s request because she retained new counsel. The Director opposed the adjournment. The court granted it and the hearing was rescheduled to start on June 13. [ 16 ] On April 25, 2017, N.W. was ordered to participate in a parental capacity assessment and the matter was adjourned to May 16 to confirm trial readiness for June 13. [ 17 ] On May 16, N.W. did not attend.

The Director told the court that they were advised that N.W. was now representing herself and had been hospitalized. The Director applied to adjourn the protection hearing scheduled to start on June 13. The reasons were two fold, first, the parental capacity report would not be ready and secondly, they could not confirm N.W.’s readiness to proceed. The hearing was adjourned without any future dates being fixed. [ 18 ] N.W. continued to refuse to participate in the parental capacity assessment.

[ 19 ] On July 18, N.W. appeared with new counsel, Mr. Newcombe. Mr. Newcombe told the court that N.W. was reluctant to participate in a parental capacity assessment unless an assessment of the youngest child’s father was also ordered. [ 20 ] The Director opposed the application, expressing concerns that N.W. was deliberately trying to stall the proceedings. [ 21 ] The court agreed with N.W. that a parental capacity assessment for A.M. would assist and ordered it.

The court also made an order appointing counsel for the children. [ 22 ] The court reiterated to N.W. she needed to participate in the assessment and N.W. agreed. [ 23 ] N.W.’s counsel requested that a date be fixed for a Family Law Act application involving N.W. and A.M. The court reiterated its desire that the Family Law Act application be heard at the same time as the protection mater. The court also said it would be preferable for the parties to receive Dr. Elterman’s report before fixing any dates. The parties agreed.

It is unclear whether the court or the parties envisioned that it would take 4 months to complete the reports. [ 24 ] Between July 18 and October 30, 2017, N.W.’s counsel withdrew. [ 25 ] On October 30, 2017, N.W. filed an application claiming the Director was going to lose jurisdiction over the matter on November 3, which was the 12 month anniversary of the apprehension. In the application, she sought the return of the children on or before November 3, 2017.

She was granted short leave to appear on November 1, 2017. [ 26 ] The hearing to determine the jurisdictional issue was adjourned to November 21, 2017 and due to a lack of court time, adjourned again to January 23, 2018. [ 27 ] The parental capacity report in relation to N.W. was filed with the court on November 17, 2017 and the report in relation to A.M. on November 28. [ 28 ] On January 23, 2018, N.W. appeared with her new counsel, Mr. Patterson. Analysis 1.

Have any of the timelines in the Act been surpassed? [ 29 ] Both children and parents are entitled to a fair and prompt hearing to determine whether the child is in need of protection. A few months in the life of a child as compared to that of an adult can be significant. When several months or years go by, situations can become crystalized and irreversible. [ 30 ] One of the guiding principles in

section 2 of the Act states that decisions relating to children are to be made and implemented in a timely manner. T he Act sets out a number of timelines to ensure this occurs. [ 31 ] Delay is often an issue in child protection cases. Despite the noble intention of the Legislature that these cases proceed at warp speed, cases routinely exceed the timelines, both timelines for particular steps in the proceedings, and the maximum time children can remain in temporary care. [ 32 ]

Section 45 addresses the maximum timelines a child can remain in care.

It states that no child who is under the age of 12 at the time of making an order can be kept in temporary care for longer than 18 months. [ 33 ] Although N.W.’s youngest child has not been in temporary care longer than 18 months, her counsel argues that the case is dangerously close to the timeline, no hearing date has been scheduled for a continuation of the protection hearing and given the inordinate delay, the court has lost jurisdiction to proceed further with the hearing. [ 34 ] The Director argues that the timeline in section 45(1) only applies where there has been an initial order which section 45(2) defines as a temporary custody order following a finding that the child is need of protection or a

section 60 consent with or without such a finding. In the case at hand, the hearing has not concluded, no findings and no temporary custody orders have been made. [ 35 ] The Director also points out that the Act does not prescribe any time limit or expiration date for orders made pursuant to

section 35. Until such time that a temporary custody order is made, the Director says the clock does not start. [ 36 ] However, section 37(2) also provides a timeline. According to the section, at the conclusion of a presentation hearing the court must set the earliest possible date for a hearing to determine if the child needs protection subject to certain exceptions which do not apply here.

The start date for the protection hearing must be not more than 45 days after the presentation hearing and must conclude “as soon as possible”. [ 37 ] The timeline is subject to Rule 2 of the Provincial Court Rules, which states that if at the commencement of the protection hearing, a consent order is not made, or the judge determines it cannot be heard that day, the judge must direct the parties to attend a case conference before its completion. [ 38 ] In reality, it is rarely ever practical for contested protection hearings to conclude within 45 days. In B.B. v.

British Columbia (Director of Child, Family and Community Services), 2005 BCCA 46 , Madam Justice Huddart recognized this reality when she observed at para. 15: In practice, a protection hearing must commence no more than 45 days after the conclusion of the presentation hearing. In practice, a protection hearing is commenced within 45 days, but the commencement is a mere formality. The substantive hearing may be held months to years later, in part because of the minimal court time available for contested protection hearings.

[39] Even though the timeline in the Act for concluding protection hearings is defined with less precision than the one found insection 45 it cannot simply be ignored. [40] Although N.W. asserts a desire to see a timely conclusion to this matter, her actions have not been consistent with her request. Most of the delays in concluding the protection hearing are the result of actions taken by her.

She has changed counsel at least 4 times,at different times refused to participate in the parental capacity assessment, and made a late request for an assessment regarding A.M. [41] Despite most of the delays being at the request of N.W., this does not relieve the court from considering whether the timeline ins. 37(2) has been breached and whether continuing the proceedings is in the best interest of the children. Not only are parents entitled toa fair and prompt hearing, the children are too. [42] In Manitoba (Director of Child and Family Services) v.

H.(H.) and C.(G.) and The Assembly of Manitoba Chiefs, 2017 MBCA33, the court observed at paragraph 89 that although a fair and balanced hearing is essential, the readiness or desire of the parents shouldnot inhibit the required speed with which matters should move forward to trial.

The court at paragraph 52 quoted with approval thestrong commentary of Chief Justice Joyal of the Manitoba Queen’s Bench at a Child Protection Conference held in Winnipeg onDecember 2, 2016 where he said: [Once] a child has been apprehended and taken from his or her family, the Court of Queen’s Bench … will not be used as a remediatingwaiting room for the agencies and parental counsel, hoping to avoid the determinations that judges are morally and constitutionallymandated to make following apprehension. … The Court’s new scheduling model and the Court’s role in adjudicating the issues that it must adjudicate pursuant to statute, cannot andwill not be delayed or obscured by agency program or service issues, or for that matter, by a parent’s rehabilitation schedule.

At the endof the day, it is the child who sits in care waiting for both the agency and parents to act. The current delays are intolerable andunacceptable. [43] There were no submissions with respect to the delay in completing the parental capacity assessments. There is no evidence tosuggest that after the application of July 18 that N.W. did anything to frustrate their completion.

I am unable to conclude that 4 monthsto prepare the reports was reasonable in the circumstances. [44] Following the July 18 court appearance when the parental capacity assessment for A.M. was ordered the parties ought to havedetermined how long the assessments would take to complete and fixed at a minimum four days for the continuation of the protectionhearing. Although there was some logic in waiting for the reports, the parties were aware that at a minimum 4 days would be required. [45] It is inevitable, given the court schedule, the schedules of counsel, and the

schedule of Dr. Elterman, that there will be furtherdelays in finding time to conclude the protection hearing. [46] Because of combination of factors, the protection hearing has neither proceeded nor will it be concluded “as soon as possible”;the timeline in section 37(2) of the Act has been breached. 2. Does a loss of jurisdiction automatically flow when a timeline in the Act has been surpassed? [47] The Act is silent as to the consequences of not completing the protection hearing as soon as possible. Does a breach result in aloss of jurisdiction and termination of the proceedings, or is a more flexible

interpretation that takes into account the best interests of thechildren available? [48] Some judges treat the timelines in child protection legislation as imperative and synonymous to substantive limitation periods. See: Re. R.(K.), 2005 ABPC 210 (substantive limitation period); Candish v. Saskatchewan (Minister of Social Services), 1978CarswellSask 54 (QB) (legislation imperative not merely directory); Catholic Children’s Aid Society of Metropolitan Toronto v.

S.(I.)(1987), (ON SC), 12 RFL(3d) 40 (ON Dis Ct), appeal quashed (1989), (ON CA), 68 OR (2d) 255(ONCA) (time period mandatory not discretionary). [49] Other judges interpret the timelines as directory, meaning, to the greatest extent possible, they must be adhered to, but failure todo so will not automatically result in a loss of jurisdiction. See: Re G.

(1976) CarswellNB 19 (NBCA) (provisions directory only; failureto comply not depriving court of jurisdiction); Children’s Aid Society of Huron-Perth v. M.(T.S.)

(2004) CarswellOnt 1898, affirmed2005 CarswellOnt 1264 (SC) (judge retroactively extended time for protection hearing to occur). [50] In British Columbia there are very few reported decisions regarding breaches of timelines under the Act. The first is BritishColumbia (Superintendent of Family and Child Services) v. N.A., [1983] B.C.J. No. 120 (SC). In that case, Mr. Justice McEachernconcluded that a provincial court judge lost jurisdiction when he failed to complete the protection hearing within a reasonable timerelative to its length. In that case, the protection hearing took 90 days over a 13-month period.

In finding a loss of jurisdiction,McEachern J. made the following observation: …this trial became so badly fractured and became extended for such an inordinate and inappropriate length of time with manyadjournments within each month in addition to those I had mentioned that the trial the lost the quality of fairness. I do not accept thesuggestion that what happened here is typical of proceedings in Family Division of Provincial Court. [51] Although Mr.

Justice McEachern found a loss of jurisdiction, he went on to exercise his inherent jurisdiction both in parenspatriae and in injunction to leave the children in the custody of the Superintendent, until a new trial of the matter could be heard. [52] In D.J. v. British Columbia (Superintendent of Family and Child Services), [1993] BCJ No 526 (SC), Parrett J. reached asimilar conclusion. In error, a 3-month temporary custody order was made without a finding that the children were in need of

protection. Before the order expired, the Superintendent brought an application for permanent custody which was adjourned sine die. By the time, the mother of the children petitioned the Superior Court for a finding that jurisdiction had been lost, the children had been inthe Superintendent’s care for over 23 months. In finding that the provincial court had lost jurisdiction, Mr. Justice Parrett observed: Here the inordinate delay is not in the trial process itself but in matters leading up to the trial and, in effect, constitutes a delay of thatprocess itself. The same principles apply.

The entire thrust of the Act is to ensure that the Superintendent, although empowered to actquickly and decisively to take custody of children thought to be in need of protection, must adhere to strict time and notice requirementsso that the taking of custody may be disputed by the parents within the court process in a timely manner. Above all, it is for the courtand not the Superintendent to make the critical finding that a child is in need of protection. Without such a finding, the Superintendenthas no power or authority to retain custody.

The scheme of the Act is to ensure, so far as possible, an early determination of the child’s best interest and whether that child is in needof protection. The object is to either confirm the requirement for intervention by the Superintendent or reunite the family at the earliestpossible date. [53] Instead of returning the children to their mother, Mr.

Justice Parrett, like Justice McEachern, exercised his parens patriaejurisdiction, left the children in the care of the superintendent, and directed a hearing be scheduled at which time all parties would havethe opportunity to present evidence with respect to the best interests of the children. He said the presumption at the hearing would bethat the children would be immediately returned to the parents unless it was shown that such a return would not be in the children’s bestinterests. [54] In J.W. v.

M.E.S., 2000 BCSC 311, the mother sought a ruling in superior court dismissing the proceedings brought by theDirector in provincial court on the basis that the court had lost its jurisdiction by not requiring the Director to disclose relevantdocuments and for not moving the case along in a timely manner.

The mother also claimed that her rights under the Charter of Rightsand Freedoms were infringed by the delay. [55] Her position was that the proceedings had become so inordinately delayed that the legislative scheme in the Act, which containsstrict timelines, had been frustrated and hence the provincial court proceeding had lost the inherent quality of fairness and should resultin a loss of jurisdiction.

Although a protection hearing had been nominally commenced, it had not yet been concluded 3 ½ months afterthe apprehension. [56] Justice Brenner dismissed the application after finding the protection hearing was commenced within the appropriate timelineand it was scheduled to continue in a timely manner. [57] Unlike some other jurisdictions, the decisions from British Columbia do not engage in analysis as to whether or not thetimelines are mandatory or directory. An analysis that can have some importance in how the

section is interpreted. [58] In B.(M.J.) v. Family And Children’s Services of King County, 2008 NSCA 64, it was argued that the trial judge erred byholding a protection hearing outside the 90-day time period provided for in the Nova Scotia legislation. In concluding that the judge didnot err by exceeding the timelines, the court characterized the timeline as directory and not mandatory. [59] The court relied on the Mr. Justice Freeman’s observations in Children's Aid Society and Family Services of Colchester Countyv. H.W., (NS CA), where he concluded that the time lines stipulated in the Nova Scotia Act were not mandatory, butstrongly directory. He states: [28] In my view, on a proper

interpretation of the time limits contained in the Children and Family Services Act, the object ofeliminating the excessive time delays experienced under the previous legislation can best be attained not at the expense of the paramountconsideration but by giving the best interests of children their fullest and broadest effect. [29] What Judge Levy has pointed out, and what this appeal illustrates, is that the time limits, which give effect to the concern expressedin the

Preamble, are sometimes in conflict with the best interests of the child. When that occurs, the legislation must be given aconstruction consistent with the best interest of the child. In my view the ordinary meaning of the legislation creating the time limitscannot be ascertained from looking at the sections containing those specific provisions standing alone; they must be read in light of thePreamble and s. 2. [30] The alternative, loss of jurisdiction which nullifies all proceedings prior to the infringement of the time limit, may not only becontrary to the best interests of the child but to the concern addressed in the

Preamble, and to the intent of the time limits themselves.Nullification after a child is found in need of protection either deprives a child of that protection or subjects it to the delays inherent instarting proceedings all over again from the beginning.

Child protection proceedings become a game of “snakes and ladders”. [31] Because their meaning varies with their context from case to case, depending on whether there is a conflict with s. 2, I wouldconsider the time limits provisions to be not mandatory but strongly directory, to be obeyed to the fullest extent possible consistent withthe best interests of the child. An error in extending a time limit to serve the best interests of a child would then be an error of law,subject to appeal, but would not result in the loss of jurisdiction nullifying proceedings.

It is neither logical nor pragmatic that a courtcan be wrong as to a child’s best interests and retain jurisdiction but, if it is wrong respecting a time limit, it is shorn of jurisdiction.(Emphasis added) [60] Mr. Justice Cromwell, in Children’s Aid Society of Cape Breton-Victoria v. A.M., 2005 NSCA 58, viewed the status of thestatutory time limits in a similar way when he wrote at para. 32: To summarize my conclusions: 1. Surpassing of a time limit in the Act to determine the child's best interests does not result in the loss of jurisdiction: H.W. andB.F. 2003 NSCA 119 , [2003] N.S.J. No. 405.

However, as noted in B.F., this principle does not apply to time limits which

govern the contents of the order after that determination is made: B.F. at para. 58. 2. Time limits should not be extended in order to permit a determination to be made of the child's best interests unless, at the timethey are extended, the judge determines that it is in the best interests of the child to do so: H.W. at para. 41. 3. Such extensions should not be open-ended but rather strictly constrained in accordance with the principles in the Act: H.W. atpara. 41. 4.

Failure to observe the approach set out in points 2 or 3 above is an error of law, but will not lead automatically to interferencewith the judge's ultimate determination. Intervention will follow only when it is shown, according to the applicable standard of appellatereview, that the judge's decision to proceed, notwithstanding the expiration of the time limit, was not in the children’s best interests. [61] Although the decisions of the Nova Scotia Court of Appeal are not binding, they are very persuasive. [62] In British Columbia (Director of Child, Family, and Community Services) v.

K.(S.A.), 2015 BCPC 257, Judge Frame was askedto apply a flexible

interpretation regarding the availability of retroactive extension for temporary custody order. Because of an oversight,counsel for the Director forgot to apply for an extension of a temporary custody order. The Director made an application for anextension and asked that it be applied retroactively; something the Act does not specifically provide for.

Before granting the extension,Judge Frame highlighted the importance of abiding by timelines in the Act but realized the reality that failing to extend the order wouldlikely mean a re-apprehension and starting the process over; a result which would not be in the best interest of the child. Although shegranted the extension, Judge Frame did say she might have reached a different conclusion if the mother of the child had made significantimprovements. [63] Finally, although arising in the context of criminal proceedings, the following two cases support a mandatory versus directoryanalysis. [64] In Doucet v.

British Columbia (Director of Adult Forensic Psychiatric Services), 2000 BCCA 195 , [2000] B.C.J. No.586 (C.A.), the legislation provided that a Review Board had to hold a hearing within 45 days after a verdict of “not criminallyresponsible” was rendered, but that the Court could extend the time to a maximum of 90 days if there were “exceptional circumstances”to warrant the extension. An extension was not applied for and the timeline was not met.

Despite this restrictive language, the majorityof the Court of Appeal held that “Parliament did not intend to have the validity of a delayed hearing, or any order which resultedtherefrom, defeated unless the delay resulted in substantial prejudice to the ... accused”, and that there had not been prejudice to theaccused in the case before it. [65] In R. v. McDonald, 2014 BCSC 2131, Mr. Justice Fitch assessed whether a timeline was mandatory or directory in determiningwhether a breach of it would render a dangerous offender proceeding invalid or a nullity. The timeline was for the filing of a psychiatricassessment.

Section 752.1 of the Criminal Code allows an accused to be remanded for a maximum of 60 days for the assessment to beconducted and a further 30 days for the assessment to be filed.

Section 752.1(3) provides the court with the discretion to extend theperiod for filing by 30 days but only if there a reasonable grounds to do so. Because of an oversight, the report was not filed within 30days, nor was an application made to extend the timeline before its expiry. [66] The accused argued that because the timeline was mandatory, and not complied with, the proceedings were a nullity. In otherwords, the court lost jurisdiction over the matter. They found support for this proposition in an Alberta Queen’s Bench decision that saidexactly that. [67] Mr. Justice Fitch did not agree. Although he agreed that the

section in the Code uses the word “shall” and by doing so imposesa duty or requirement, he said the court must still determine whether in the context, the provision is mandatory (the breach of which willlead to a nullity) or directory (the breach of which constitutes an irregularity that can be cured.) [68] He goes on to explain at para. 51 how this is accomplished: In Montreal Street Railway Co. v.

Normandin, (UK JCPC), [1917] A.C. 170 (P.C.), it was said that no general rule canbe laid down as to whether the provisions in a statute are directory or mandatory and that in every case the object of the statute must belooked at.

In determining whether the provisions of a statute relating to the performance of the public duty are directory or mandatory, itis important to consider: (1) whether holding null and void acts or omissions in neglect of this duty would cause an injustice to a party who has no controlover those entrusted with the duty; and (2) whether characterizing the provision as mandatory would frustrate achievement of the objectives of the legislation.

Where these conditions are met, it is open to a court to characterize the provision as directory only and hold that the neglect of them doesnot affect the validity of acts done. As I understand the law, much depends on context. He continues at para. 62: Finally, as Pierre-André Côté points out in his text, The

Interpretation of Legislation in Canada, 2nd ed. (Cowansville: Les Editions YvonBlais Inc., 1991) at p. 204-205, in the absence of express provisions declaring that a failure to comply strictly with the

section will renderthe proceedings a nullity, the courts must look to other elements (cited in C.B.H. at para. 15). The Code does not expressly declare that afailure to comply with the filing deadline set out in s. 752.1 renders any subsequently initiated dangerous or long-term offenderproceedings a nullity. Accordingly, courts must look to other considerations, including the legislative intent underlying these provisionsas expressed in Jones. Doing so leads to a conclusion that the timelines set out in the provisions are directory not mandatory, and subjectto extension at the discretion of the court.

[69] Although done in the context of criminal legislation, I am persuaded by the approach taken by Mr. Justice Fitch; it is sound andapplicable to child protection legislation. [70] Similar to the dangerous offender provision that Fitch J. was dealing with, The Child, Family and Community Services Act doesnot expressly provide that a failure to comply strictly with s. 37(2) will result in a loss of jurisdiction, rendering the proceedings a nullity.

Therefore, judges must look to other considerations, including the legislative intent of the Act. [71] Applying the first consideration set out in Montreal Street Railway, supra, to this case, I am satisfied that delay in theseproceedings is not the fault of either of the children who are the focus of the application. It has been primarily the product of actionstaken by N.W.

She has changed counsel at least 4 times, at different times refused to participate in the parental capacity assessment, andmade a late request for an assessment regarding A.M. [72] Applying the second consideration to the case, I am satisfied that characterizing, the timelines in s. 37(2) of the Act asmandatory would defeat the important objectives of the legislation as a whole - to protect children from harm and to only make decisionsthat are in their best interests. [73] Although the timeline in s. 37(2) is more than just a mere suggestion, the Legislature did not intend that the consequences of abreach would be the automatic and unacceptable termination of the ability to complete an inquiry into protecting the best interest of thechildren; especially, where much of the delay falls at the feet of the parent making the application.

Instead, before rendering proceedingsa nullity, the court must be satisfied that the delay that has or will occur is not in the best interest of the children. 3. Has there been a loss of jurisdiction rendering these proceedings a nullity? [74] No. Despite the timeline being surpassed, given the nature of the allegations, the potential benefit of the parental capacityassessments the preparation of which occasioned some of the delay, I am satisfied that it is in the best interest of the children to completethe proceedings.

It would not be in their best interests to simply return them to the care of N.W. without any consideration for theirsafety and well-being. Nor would it be in their best interests to have them engage in a game of “snakes and ladders”, by returning them,only to see them re-apprehended and required to start the entire process afresh. Conclusion [75] Although I dismiss N.W.’s application, this does not mean I can sit idly by and allow further unreasonable delays to occur.

Instead, section 37(2) directs me to take active steps to ensure that the hearing is completed as soon as possible. [76] Child protection cases require aggressive judicial intervention and a firm judicial hand to ensure that the rules and timelines arecomplied with.

Nowhere was this point made more clear than by the Ontario Court of Appeal in M.(C.) v Children’s Aid Society of theRegional Municipality of Waterloo, 2015 ONCA 612 where the court states at para. 33: Where a statute requires that events occur within a specified time frame, it is simply unacceptable that justice system participants fail toadhere to those time frames. As Justice L’Heureux-Dubé commented on behalf of the majority of the Supreme Court in Winnipeg Childand Family Services v.

K.L.W., 2000 SCC 48 , [2000] 2 S.C.R. 519, at para. 136, “[t]he six-month delay prior to the hearing todetermine whether John was in need of protection appears, on its face, to be highly unreasonable, particularly in the case of a newbornchild.” This court spoke about the importance of timeliness in child welfare cases in Children’s Aid Society of Oxford County v.W.T.C., 2013 ONCA 491 , [2013] O.J. No. 3438.

That requires, among other things, that assessment reports be prepared with dispatch; that Children’s Aid Societies make decisions inaccordance with statutory timelines about how to proceed in a particular case; that meaningful case management occur in whichtimetables are set and witness lists are fully canvassed; that trials be scheduled so that trial days are not stretched over months; and thattrial judges receive adequate time to prepare reasons in a timely fashion. We acknowledge that additional factors may contribute to delay in particular cases.

It is our hope, however, that all those involved in thechild welfare system will do their part to minimize delay and promote finality for children. The children involved in this system deservebetter. [77] In an effort to minimize future delay and conclude the protection hearing “as soon as possible”, I direct the parties to do thefollowing: 1. Forthwith fix a continuation of the protection hearing. The dates will be peremptory; 2. Fix a pre-trial conference; 3. Ensure all disclosure to date has been provided, and continue to provide it in a timely manner; 4. Canvas all potential admissions; 5.

Identify what professional evidence will be required at trial, the purpose of the evidence and whether agreements can bereached about the admissibility of the evidence, so that the professional(

s) does not have to be called unnecessarily; 6. Canvas whether the expertise of an expert will be in issue and to reach an agreement, if possible, about defining thequalifications of the expert; 7. Speak to witnesses, especially expert witness’ regarding availability issues in advance of the case being fixed for trial; 8. Review the witness list for each party. Determine if the attendance of the witness is required or if his or her evidence can begiven in some other form, or admitted;

9. Identify what past parenting evidence will be relied upon and ensure that it will be tendered in focused, fair and proportionate manner; 10. The Director is to prepare the first draft of a book of documents index and send it to counsel and the self-represented litigants to determine what documents will be admitted and what documents will be opposed. The opposing and self-represented litigants will then send their list of documents that they want added and counsel for the Director will indicate what documents they are opposed to be being tendered and why; 11.

Identify child statements that the parties will want introduced. Ask the parties to list these statements and then consider the purpose for which they will want the statements admitted. The parties should let each other know whether objections will be made to tendering of the evidence; 12. Determine if any special equipment is required for the trial (video equipment); 13. Ensure that there are no further procedural or disclosure issues before the trial; 14. Ensure that there are more witnesses available than needed for each trial day; 15.

Exchange and provide the hearing judge with any case law that the parties intend to rely upon; 16. Discuss any other matters that can assist in completing this matter in proportional and expeditious manner. _________________________ The Honourable G. Koturbash Provincial Court Judge