Huron-Perth Children’s Aid Society v. J.B.C.L., 2015 ONCJ 649

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, and is subject to subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85.—

(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Stratford Registry No. C44/14 DATE: 2015·XI·16 CITATION: Huron-Perth Children’s Aid Society v. J.B.C.L. , 2015 ONCJ 649 ONTARIO COURT OF JUSTICE BETWEEN: HURON-PERTH CHILDREN’S AID SOCIETY, Applicant, — AND — J.B.C.L., D.R.L. and N.M.O., Respondents. Before Justice Robert W.

Rogerson Heard on 13 October 2015 Reasons for Judgment released on 16 November 2015 Anne-Marie Tymec .......................................................................... counsel for the applicant society Brigitte Gratl ........................................................ counsel for the respondents, J.B.C.L. and D.R.L. Respondent N.M.O. .......................................................................................................... in default Stephen E.J.

Paull .................................................. counsel for the Office of the Children’s Lawyer, legal representative for the children

[ 1 ] JUSTICE R.W. ROGERSON:— The Huron-Perth Children’s Aid Society (hereinafter referred to as the society) commenced a protection application seeking an order of society wardship for four children: • O.F.M.C., born on […] 2006 • J.E.F.J.C.L., born on […] 2008 • J.E.R.J.C.L., born on born […]2010 • J.R.C.L., born on […] 2013 [ 2 ] Following ten days of evidence, this court made a finding that all children were in need of protection as a result of risk of harm pursuant to subclauses 37(2) ( b )(

i) and 37(2)( b )(ii) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended. [ 3 ] The children have been in care since they were apprehended on 5 June 2014. [ 4 ] On 28 April 2015, trial dates of 21, 24, 25 and 28, August 2015 were set for disposition. The society also brought a motion for a parenting capacity assessment to be argued on 15 May 2015.

The society was required to file its materials by 8 May 2015 and the respondents by 19 May 2015 and the society, any reply by 22 May 2015. [ 5 ] On the date set for hearing the parenting capacity assessment motion, counsel for the respondent parents J.B.C.L. and D.R.L. was granted an adjournment to allow the parents to challenge the constitutionality of

section 54 of the Child and Family Services Act on the basis that it was too vague. [ 6 ] The August trial dates were vacated and the constitutional issue was argued on 13 October 2015. [ 7 ] In the notice of constitutional issue, the respondent parents assert the following:

(1) Section 54 of the Child and Family Services Act gives the court an unfettered discretion to order an assessment with the only restrictions placed on the order being who performs the assessment and the time frame in which it is to be carried out;

(2) An order for assessment is coercive in nature as if a party refuses to undergo such an assessment the court may draw a reasonable inference from that refusal;

(3) A parenting capacity assessment involves deeply personal and private issues that should not be ordered unless there are reasonable and probable grounds for same;

(4) Section 54 is not saved by the provisions of

section 1 of the Charter as “

Section 54 does not provide the framework pursuant to which the saving provisions can be debated.” [ 8 ] The respondents propose that the court read into

section 54 “that there are reasonable and probable grounds to conclude that the parents constitute a danger of such magnitude to their children as to make it necessary that a parenting capacity assessment be conducted, without which a judge is unable to render a decision on the disposition of the case.” [ 9 ] Counsel for the parents also argues that the

section is discriminatory in that foster parents cannot be assessed under

section 54 even though they may be part of the plan put forth by the society. [ 10 ] The parents rely on sections 7 , 8 and 15 of the Canadian Charter of Rights and Freedoms , being

Part 1 of

Schedule B to the Canada Act 1982 , c. 11 (U.K.). [ 11 ] The Attorney General of Canada and the Attorney General of Ontario were both served and took no

part in these proceedings. [ 12 ] Both the children’s aid society and counsel for the children opposed the relief sought by the respondent parents. [ 13 ] For reasons set out herein, the constitutional question is dismissed. 1: IS THE

SECTION TOO VAGUE? [ 14 ] Counsel for the respondents argued that

section 54 of the Child and Family Services Act was too vague. It provides as follows: 54. Order for assessment.—

(1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2): 1. The child. 2. A parent of the child. 3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child.

(1.1) Assessor selected by parties. — An order under subsection (1) shall specify a time within which the parties to the proceeding may select a person to perform the assessment and submit the name of the selected person to the court. S.O. 2006, c. 5, s. 10(1) .

(1.2) Appointment by court. — The court shall appoint the person selected by the parties to perform the assessment if the court is satisfied that the person meets the following criteria: 1. The person is qualified to perform medical, emotional, developmental, psychological, educational or social assessments. 2. The person has consented to perform the assessment. S.O. 2006, c. 5, s. 10(1) .

(1.3) Same. — If the court is of the opinion that the person selected by the parties under subsection (1.1) does not meet the criteria set out in subsection (1.2), the court shall select and appoint another person who does meet the criteria. S.O. 2006, c. 5, s. 10(1) .

(1.4) Regulations. — An order under subsection (1) and the assessment required by that order shall comply with such requirements as may be prescribed. S.O. 2006, c. 5, s. 10(1) .

(2) Report. — The person performing an assessment under subsection (1) shall make a written report of the assessment to the court within the time specified in the order, which shall not be more than thirty days unless the court is of the opinion that a longer assessment period is necessary. R.S.O. 1990, c. C-11, s. 54(2) . . . .

(6) Assessment is evidence.— The report of an assessment ordered under subsection (1) is evidence and is part ofthe court record of the proceeding. R.S.O. 1990, c. C-11, s. 54(6).

(7) Inference from refusal.— The court may draw any inference it considers reasonable from a person’s refusal toundergo an assessment ordered under subsection (1). R.S.O. 1990, c. C-11, s. 54(7).

(8) Report inadmissible.— The report of an assessment ordered under subsection (1) is not admissible intoevidence in any other proceeding except, (

a) a proceeding under this Part, including an appeal under

section 69; (

b) a proceeding referred to in

section 81; (b.1) a proceeding under

Part VII respecting an application to make, vary or terminate an openness order; or (

c) a proceeding under the Coroners Act, without the consent of the person or persons assessed. S.O. 1999, c. 2, s. 14; S.O. 2006, c. 5, s. 10(2). [15] Counsel for the respondent parents argued forcefully that

section 54 permits an unfettered discretion on the court to make an order withno prescribed grounds that must be found before an order could occur. The court asked the respondent parents’ counsel whether the regulations tosection 54 fettered the court’s discretion and, at first, respondent parents’ counsel asserted there were no regulations. Upon being pointed outRegulation 25/07 again counsel for the respondent parents argued that regulation does not in any way fetter a court’s decision-making process. Thatregulation provides as follows: Regulation 25/07 2. Criteria for ordering assessment.— An assessment may be ordered under

section 54 of the Act, if the court issatisfied that: (

a) an assessment of one or more of the persons specified in Subsection 54(1) of the Act is necessary for thecourt to make a determination under

Part 3 of the Act and (

b) the evidence sought from an assessment is not otherwise available to the court. 3. Timing of an assessment.—

(1) A court may order an assessment under

section 54 of the Act if the criteria setout in

section 2 are satisfied and, (

a) the court has received evidence, held a temporary care and custody hearing and made an order pursuant tosubsection 51(2) of the Act; (

b) the court has made a finding that a child is in need of protection pursuant to subsection 37(2) of the Act; or (

c) all parties to the proceeding consent to the order being made.

(2) An order under clause (1)(

c) may be made at any time during the proceeding. 4. Contents of assessment order.—

(1) In an assessment order, the court shall include the following: 1. The reason the assessment is necessary. 2. The specific questions that are to be addressed by the assessor. 3. What questions, if any, specifically require recommendations. 4. The time period for completing and filing the assessment report.

(2) Without limiting the generality of the questions that are to be addressed by the assessor under paragraph 2 ofsubsection (1), the court may order that the assessor assess some or all of the following: 1. The parenting capabilities of the proposed participants in the child’s plan of care, including those attributes,skills and abilities most relevant to the child protection concerns. 2. Whether the proposed participants in the child’s plan of care have any psychiatric, psychological or otherdisorder or condition which may impact upon his or her ability to care for the child. 3.

The nature of the child’s attachment to a proposed participant in the child’s plan of care and the possibleeffects on the child of continuing or severing that relationship. 4. The psychological functioning and developmental needs of the child, including any vulnerabilities andspecial needs. 5. The current and potential abilities of the proposed participants in the child’s plan of care to meet the needs ofthe child, including an evaluation of the relationship between the child and the proposed participants in thechild’s plan of care. 6.

The need for and likelihood of success of clinical interventions for observed problems. O. Reg. 25/07, s.4(2). [16] Counsel for the respondent parents relied on Children’s Aid Society of Algoma v. Cheryl B. and William B. (No. 2), ,127 A.C.W.S. (3d) 468, [2002] O.J. No. 5551, 2002 Cars​well​Ont 5646 (Ont. C.J.), to argue that the

section was vague. There, the society brought amotion for a parenting capacity assessment of the mother of a 12-year-old. That motion was dismissed on the basis the 12-year-old had certain issuesthat required an assessment of the child. Once that assessment was completed, it would assist in determining whether or not there was a need for anassessment by the child’s mother. Accordingly, the learned judge held that a parenting capacity assessment was premature. [17] The learned judge found that

section 54 was a discretionary

section but there were no guidelines to assist in the decision as to when tomake such an order. (See paragraph [13] of the 2002 judgment.) [18] That case was decided under the provisions of

section 54 before it was amended in 2005. There is no reference in the pre-2006assessment

section to any regulations, and an assessment could only be made after a child was found in need of protection. It is accordingly of littleassistance in determining whether the current

section 54 is unconstitutional. [19] Counsel for the respondent parents also cited Children’s Aid Society of London and Middlesex v. Crystal Claire B. and Jonathan K.,, [2007] O.J. No. 5430, 2007 Cars​well​Ont 9191 (Ont. Fam. Ct.). That case is entirely distinguishable as the society sought towithdraw its protection application and one of the parents sought a parenting capacity assessment from another parent. It was clearly a fishingexpedition.

Counsel for the parent who sought the assessment acknowledged it was to assess the mental health of the respondent mother and not toassist the court with respect to identifying any needs of the child. As well, there were no grounds for a mental health assessment. [20] In addition, the respondent parents rely on Children’s Aid Society of Halton Region v. Katherine A., 2008 ONCJ 273, 54 R.F.L. (6th)432, [2008] O.J. No. 2347, 2008 Cars​well​Ont 3526 (Ont. C.J.). In that case, the society sought an order that a father undergo a parenting capacityassessment.

The children in that case were placed with the respondent father due to ongoing drug and alcohol issues of the respondent mother. Thecourt declined to order a parenting capacity assessment on the basis there was no issue before the court that needed to be decided at that stage of theproceeding. [21] In her decision, Justice Roselyn Zisman found that

section 54 does not set out any criteria for ordering an assessment, but rather there is abroad judicial discretion. Madam Justice Zisman also cited the case of Haggerty v. Haggerty, 2007 ONCJ 279, [2007] W.D.F.L. 3489, [2007] O.J. No.2534, 2007 Cars​well​Ont 4151 (Ont. C.J.), where Justice Bruce E. Pugsley found that a court must be vigilant to ensure that a request for an assessmentis not a fishing expedition looking for evidence that would assist a party’s position.

[22] Justice Zisman found that there has not been a finding in need of protection and accordingly she is not aware of any factual underpinningthat would justify an order at that time. [23] Indeed, this court dismissed the society’s initial motion for a parenting capacity assessment on much the same basis. However, the courtpoints out there has now been a finding of risk of harm due to deplorable home conditions, failure to supervise the children, and meet their basic anddevelopmental needs.

The evidence that the court accepted included that the respondent mother was unable to supervise the children and left themalone outside despite warnings not to do so and, in the face of a temporary order made two days prior to 5 June 2014 which required her not to leave thechildren unsupervised. That is a far different factual situation than Justice Zisman had in Children’s Aid Society of Halton Region v. Katherine A.. [24] Justice John Kukurin, in Children’s Aid Society of Algoma v. Pamela Mc., 2008 ONCJ 768, 180 A.C.W.S. (3d) 446, [2010] W.D.F.L.333, [2008] O.J. No. 5774, 2008 Cars​well​Ont 9244 (Ont.

C.J.), specifically disagreed with Madam Justice Zisman’s finding in Children’s Aid Society ofHalton Region v. Katherine A., that there were no criteria to make a parenting capacity assessment order. Justice Kukurin held that there were indeedcriteria. At paragraph [8], Justice Kukurin respectfully takes issue with Justice Zisman’s conclusion that

section 54 provided no criteria to order anassessment so there was a broad judicial discretion to do so. Justice Kukurin found the criteria for ordering an assessment are found in

section 2 of theregulations, and the timing of the assessment is at

section 3 of the regulations. [25] He held that the two criteria contained in

section 2 of the regulations are mandatory. They are as follows:

(1) It is necessary to assess one or more persons to make a determination under

Part III of the Act;

(2) The evidence sought is not otherwise available. [26] Once those criteria are met, the court still has the discretion to either make or refuse to order an assessment based on other circumstancesof the case. [27] Justice Kukurin found that these criteria must have an evidentiary foundation. [28] The court agrees with the dicta of Justice Kukurin in Children’s Aid Society of Algoma v. Pamela Mc. [29] In R. v.

Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 139 N.R. 241, 114 N.S.R. (2d) 91, 313 A.P.R. 91, 93 D.L.R. (4th) 36,10 C.R.R. (2d) 34, 43 C.P.R. (3d) 1, 74 C.C.C. (3d) 289, 15 C.R. (4th) 1, , [1992] S.C.J. No. 67, 1992 Cars​well​NS 15, the SupremeCourt of Canada held that vagueness can be raised under

section 7 of the Charter as it is a principle of fundamental justice that laws may not be toovague. The court held however the threshold for a finding of vagueness is relatively high. (See paragraph [42].) [30] The court held that the factors to consider in determining whether a law is too vague include the following (at paragraph [28]): (

a) the need for flexibility and the interpretive role of the courts; (

b) the impossibility of achieving absolute certainty; (

c) the possibility that many varying judicial

interpretations of a given disposition may exist. [31] The court finds

section 54 of the Child and Family Services Act is not vague so as to offend the Charter. It can only be requested at atime specified in

section 3 of the regulations. If requested, it can only be ordered if the two criteria found in

section 2 of the regulations exist and eventhen, the court has the discretion not to order it. Indeed, in this very child protection proceeding, the court refused to order a

section 54 assessment onan earlier motion by the society. [32] There is no need to read into

section 54 language sought by the parents as there already are criteria required before an assessment ordercan be made. [33] Accepting the test set in R. v.

Nova Scotia Pharmaceutical Society, supra, and balancing the factors contained therein, this court findssection 54 of the Child and Family Services Act is not so vague to be unconstitutional without reading in language as suggested by the respondentparents. 2: DOES THE POSSIBILITY OF AN ADVERSE INFERENCEFOR REFUSING TO CO-OPERATE WITH A PARENTINGCAPACITY ASSESSMENT OFFEND THE CHARTER? [34] The parents argued that subsection 54(7) of the Child and Family Services Act is coercive or penal in nature as it allows the court tomake any inference reasonable for a person’s refusal to undergo an assessment.

Counsel for the parents argues that an assessment is a highly personaland probing process which the parties should be free to refuse to undertake without a negative inference being drawn. [35] In Silber v. Fenske (1995), (ON SC), 11 R.F.L. (4th) 145, [1995] O.J. No. 418, 1995 Cars​well​Ont 81 (Ont. Gen.Div.), the court held refusing to undergo blood tests to determine paternity which resulted in an adverse inference that could be drawn did not violate theCharter.

Quoting from an earlier decision, the learned trial judge stated as follows at paragraph [13]: . . . what it does is permit a party, in a civil proceeding, to ask the court for permission to ask certain persons forsamples of their blood and to submit those samples in evidence. The effect of the submission of this evidencewould be to assist the court in establishing whether or not any of such persons was, in fact the father of the child. The

section goes on to say in subsection (3) that refusal to submit to such a request permits the court to draw suchinferences it considers appropriate. In my view, the

section does little more (and perhaps less) than to givelegislative sanction to what I understand had been a fairly common practice in the courts. I say that because thereare many cases here a party to an affiliation proceeding has been asked by the other side to provide blood samplesand the unexplained refusal to comply with that request has resulted in the court drawing an inference adverse tothe refuser.

That, it seems to me, is only reasonable, since in a civil case as this is the refusal of one of the partiesto produce materially relevant evidence in their possession would, absent a reasonable explanation, almostinevitably result in the trier of fact in concluding that such evidence would be either

a) helpful for the other partyand/or

b) harmful to the one who refused it. [36] In that case, the court goes on to note the court has a discretion as to whether to make an adverse inference as it is always available to theparty who refused to undergo such testing to explain the refusal. (See paragraph [14].)

[37] The court accepts and agrees with this dicta. Without subsection 54(7) of the Child and Family Services Act, any party who did not wishto undergo an assessment could just ignore the order with no consequences. As well, the legislation provides that a parent can come to court andattempt to explain any refusal to undergo an assessment. The

section is discretionary and not mandatory. Given this assessment is ordered in a childprotection proceeding where we are looking at the best interests of children, this court finds that subsection 54(7) to be an appropriate potential sanctionshould a parent refuse to participate in a court ordered assessment. 3: IS THE LAW DISCRIMINATORY IN THAT FOSTERPARENTS CANNOT BE ASSESSED? [38] Counsel for the parents argues that the law is discriminatory in that foster parents cannot be assessed even if they are part of the plan ofthe society. As such,

section 54 offends

section 15 of the Charter which guarantees equal protection before the law. This argument is not compelling. Before adults can become foster parents, they must go through a rigorous training program and be vetted by local children’s aid societies. As well, theyare not parties to the litigation. The society can move children from one foster home to another without any explanation to the foster parents, nor withany rights of the foster parents in a child protection proceeding. In Children’s Aid Society of Metropolitan Toronto v. Donna S., , 28A.C.W.S. (3d) 205, 11 L.W.C.D. 424, [1991] O.J. No. 1384, 1991 Cars​well​Ont 6197 (Ont. Prov. Div.), Provincial Judge A. Peter Nasmith provided auseful

summary of the role of foster parents in child protection litigation. At paragraph [16], he stated as follows: It is anathema to the role of foster parents at this preliminary stage of protection intervention to be setting them upas permanent caretakers and to have them staking their own custodial claims on the child. They should bepreparing the child for return to the family.

Until it has been determined that there are grounds for removing thechild from the family and that there is no one in the family who is acceptable as a substitute caretaker, the fosterparents cannot be putting forward their own resources as being “better” than the families or calling for acomparative analysis of plans as between themselves and the family. [39] Furthermore at paragraph [18], he said as follows: There is a tacit agreement between the protection agency and foster parents that no claims for custody be made bythem until the way has been legally cleared for them.

There is a delicate alliance involved in this agreement thatwould be fractured if foster parents could claim custody for themselves before the preliminary issues had beendetermined. [40] At paragraph [25], he stated: If comparisons between foster parents and original families were legitimate from the outset, it would be tantamountto declaring open season on each and every child who is moved, however temporarily, into a foster home. Whencould it not be said that there was an attachment between a foster parent and a child and that moving the child backto the family would break the attachment?

When could it not be said that the foster home had advantages over theoriginal home?

It would be ironic if foster homes were being chosen where the foster parents were so casual thatthere was no attachment or the resources were no better than the family that was being assisted. [41] Judge Nasmith went on to state that the “cross-currents of foster parent attachment and family reconciliation will meet but that is onlyafter a wardship order is made and there is a possibility of permanent placement in a foster home.” Judge Nasmith pointed out that, until there is apermanent wardship order made, the possibility of reconciliation with the original family should not be lost sight of.

The court agrees with thatanalysis, and accordingly the exclusion of foster parents from assessments at this stage is not discriminatory. There is no request for Crown wardshiphere. The foster parents do not have any role at this point in making a determination as to disposition. The court is required to make the least intrusiveorder that protects the children, and that focus is on the parents, and others who may assist the parents, and not the foster parents. Accordingly, there isno basis for a finding of discrimination in

section 54’s exclusion of foster parents from court ordered assessments. [42] As pointed out by Judge Nasmith, the court at this stage should not be comparing the parents to foster parents. Indeed, the legislationdoes not permit any such comparison. What the court must decide is what is the least intrusive order that must be made to protect the children in thebest interests of the children. That inquiry must focus on the parents and anyone else in support of the parents’ plan and not foster parents. [43] During argument, counsel for the parents cited Andrews v.

Law Society of British Columbia, [1989] 1 S.C.R. 143, 91 N.R. 255, 34B.C.L.R. (2d) 273, [1989] 2 W.W.R. 289, 56 D.L.R. (4th) 1, 36 C.R.R. 193, 25 C.C.E.L. 255, , [1989] S.C.J. No. 6, 1989 Cars​well​BC16, in support of the allegation that to bar foster parents from

section 54 assessments means the requirement is discriminatory. In Andrews v. LawSociety of British Columbia, supra, a British subject permanently resident in Canada met all the requirements for admission to the Bar of BritishColumbia save and except he was not a Canadian citizen. The Supreme Court of Canada held discrimination occurs based on grounds related topersonal characteristics of an individual group which imposes disadvantages on one group not imposed on others or it limits advantages to one groupthat are available to other members of society. The Supreme Court notes there must be more than a finding of distinction between treatment of groupsor individuals before

section 15 of the Charter is infringed. The court must look at the effect of the impugned distinction. Here, in making adetermination whether or not the court should make a supervision order or a society wardship order, there is no basis for discrimination between parentsand foster parents. Foster parents are not parties to the proceeding and there is no comparison between foster parents and parents. Rather, at this point,the inquiry is focused on the parents, and as such the foster parents should not and cannot be assessed.

Accordingly, while the statute makes adistinction, it is not discriminatory as the Supreme Court of Canada found in Andrews v. Law Society of British Columbia, supra. [44] The court also notes the type of discrimination alleged here, i.e., natural parents versus foster parents, is not “discrimination based onrace, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” 4: DOES AN ASSESSMENT INFRINGE

SECTION 8 OF THECHARTER? [45] In Children’s Aid Society of Waterloo Region v. B.D., , 37 R.F.L. (5th) 36, [2003] O.J. No. 736, 2003 Cars​well​Ont 763(Ont. S.C.), there on appeal from an order in the Ontario Court of Justice, the appellate court at paragraph [22] stated as follows:

The court fully appreciates that the obtaining of bodily substances for the purpose of DNA testing potentially constitutes a serious violation of the bodily integrity of a person and a potential infringement of that person’s right to be secure from unreasonable search or seizure as guaranteed by

section 8 of the Charter of Rights and Freedoms . However, given the minimally intrusive nature of the order directed above, I am satisfied that such intrusion is both reasonable and authorized by law, by

section 10 of the Children’s Law Reform Act , by subrule 20(16) of the Family Law Rules and by the parens patriae jurisdiction of the family court, which mandates that priority be given to the best interests of the children involved in the child protection application. [ 46 ] The court accepts that ordering an assessment may require parents to provide information of a highly personal and private nature.

Without admitting that such information would be akin to providing a bodily sample as that was not argued by parents’ counsel; the court accepts and agrees that the dicta of Children’s Aid Society of Waterloo Region v. B.D. , supra , that the ordering of such an assessment is reasonable and authorized by law in the best interests of children. Accordingly there is no

section 8 violation even if the providing of information by parents by way of psychological testing and observations of parents with their children could be construed as a search. 5: CONCLUSION [ 47 ] The court finds that

section 54 of the Child and Family Services Act is not too vague as to be unconstitutional. [ 48 ] As well, the coercive aspect to subsection 54(7) is reasonable, and designed to ensure in child protection proceedings where the court is concerned about the best interests of children appropriate inferences may, but not shall, be made on failure to comply with a court ordered assessment. [ 49 ] The

section is not discriminatory as it focuses in on the plan of the parents or other community supports. Foster parents are appropriately excluded from assessments at that stage as the courts should not try to compare parents with foster parents. [ 50 ]

Section 8 of the Charter is not engaged during the assessment process. [ 51 ] In Children’s Aid Society of Halifax v. C.V. and L.F. , 2005 NSSC 170 , 235 N.S.R. (2d) 67, 747 A.P.R. 67, [2005] N.S.J. No. 260, 2005 Carswell​NS 272 (N.S.S.C.), the court at first instance held that, even if any Charter rights under

section 7 or 15 were violated, it would be saved by

section 1 of the Charter in accordance with principles of fundamental justice. [ 52 ] The matter was appealed to the Nova Scotia Court of Appeal. The Court of Appeal dismissed the parents’ appeal; see C.V. and L.F. v. Children’s Aid Society of Halifax , 2006 NSCA 2 , 239 N.S.R. (2d) 325, 760 A.P.R. 325, [2006] N.S.J. No. 2, 2006 Cars​well​NS 634 (N.S.C.A.). [ 53 ] The parents’ constitutional motion is dismissed. 6: ADDITIONAL COMMENTS [ 54 ] This court agrees with the characterization that this motion was “spurious” as suggested by the factum of the Office of the Children’s Lawyer’s counsel.

Counsel for the parents, in her notice of constitutional question and factum did not deal with the regulations contained in

section 54 . As noted, they became an integral part of the court’s decision making process. It is important to note that the parents’ factum was only produced after the Office of the Children’s Lawyer factum yet, even under those circumstances, the regulations were not dealt with in the parents’ factum. Indeed, when questioned by the court during argument, counsel for the parents initially indicated there were no regulations. [ 55 ] This constitutional question caused considerable delay to these proceedings.

It was only raised on the date set for argument of the parenting capacity assessment motion, and has caused a six-month delay in these proceedings. Indeed, the trial would have been completed in August, 2015 but for this motion. [ 56 ] The court finds that this motion had little or no chance of success, highly delayed these proceedings and counsel was either unaware of or refused to deal with highly relevant regulations.

In those circumstances, the court, of its own motion, will undertake a hearing to determine whether counsel for the respondent parents should be ordered, pursuant to subrule 24(9) of the Family Law Rules , either not to bill the parents for any of the time spent on the notice of constitutional question or, if billed, return to the parents or other appropriate authority, any monies received for the notice of constitutional question. If counsel for the parents wishes some time to consider her position, the court will pick an appropriate date to argue this matter. Released: 16 November 2015 Signed: Justice Robert W.

Rogerson