Nunavut (The Director of Child and Family Services) v. J.A., 2012 NUCA 07

In the Nunavut Court of Appeal Citation: Nunavut (The Director of Child and Family Services) v. J.A., 2012 NUCA 07 Date: 20121115 Docket: 17-12-02 CAC Registry: Iqaluit Between: The Director of Child and Family Services Appellant - and - J.A. and J.N. Respondents _______________________________________________________ The Court: The Honourable Mr. Justice Jean Côté The Honourable Madam Justice Patricia Rowbotham The Honourable Mr. Justice Brian O’Ferrall _______________________________________________________ Memorandum of Judgment Appeal from the Judgment by The Honourable Mr. Justice E.D. Johnson Dated the 14th and 27th days of February, 2012

(Docket: 17-11-336-CHW) MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] On May 17, 2011, the appellant apprehended the respondents’ three-year-old son. At that time the process for confirming an apprehension was found in the Practice Directives of the Nunavut Court of Justice. On June 2, 2011, a Justice of the Peace confirmed the apprehension.

As the respondents had not been given adequate notice of the confirmation hearing, the appellant consented to vacate the confirmation order. [ 2 ] On June 9, 2011, the Child and Family Services Act, S.N.W.T. 1997, c. 13 , as duplicated for Nunavut by s. 29 of the Nunavut Act, SC 1993, c 28 ; as amended by

An Act to Amend the Child and Family Services Act, S.Nu. 2011, c. 15, sections 2(f)(i)(k), 3(c)(d), 26.1, 26.2, 27, 28 (the Act), was amended to provide a statutory mechanism for apprehension confirmation hearings. After several adjournments a de novo confirmation hearing took place on January 17, 2012. The reviewing judge did not confirm the apprehension and directed that the child be returned to the parents. The Director appealed, and a judge of this Court granted a stay of the decision, Nunavut (Director of Child and Family Services) v JA and JN, 2012 NUCA 2 , 522 AR 391 , 10 RFL (7th) 251 .

The respondent father did not participate in the appeal, although counsel for the mother informed the panel that the father supported the mother’s position. [ 3 ] At issue in this appeal is the nature of the evidentiary burden on the Director at a confirmation hearing and whether the appellant met that burden. At the conclusion of oral submissions, we allowed the appeal with reasons to follow. These are the reasons. II. Background [ 4 ] The evidence before the Court below consisted of three affidavits of a child protection worker which were filed around the time of the apprehension.

The Director testified and was cross-examined. His testimony summarized the reports of the social workers and medical professionals who had interacted with the child and the family. These reports documented numerous serious injuries to the child. The reports themselves were not in evidence. The parents each filed affidavits denying any abuse, indicating that some of the injuries occurred while the child was not in their care and suggesting that the child’s injuries were the results of accidents.

The parents participated in the hearing via telephone and were not cross-examined on their affidavits. [ 5 ] The child was born on August 25, 2008. He has one older brother born October 14, 2007. It is acknowledged that the child has suffered multiple injuries since birth. The evidence of injuries comes in part from the mother’s affidavit. The various dates to which she refers may not be accurate. Some of the evidence of injuries comes from X-rays taken some time after the actual injuries occurred.

Accordingly, it is not possible for us to determine the exact chronology of the child’s injuries. [ 6 ] The mother says that the first injury occurred when the child was 10 or 11 months old. She sent him for treatment at a Winnipeg hospital, after he broke his arm in several places. The mother said that this happened when he fell in the bathroom while he and his brother were being given a bath. She deposed that several months later the child was treated for a broken femur and fractured rib, which also occurred while under the mother’s supervision. The mother said that the child had fallen off the bed.

However, the Director’s evidence indicated that on November 3, 2009 (when the child was about 15 months old), a nurse expressed concern about possible child

abuse because the child had suffered rib fractures and a fracture of the left femur. This incident raised a concern as to possible child abuse. After investigation, the file was closed as there was no proof of intentional harm. A medical assessment in July 2011 indicated that the child’s ribs may have been broken as early as three weeks after his birth. [ 7 ] On March 26, 2010, a referral was received indicating that the mother, in the presence of the child, smelled of marijuana. An investigation revealed that the mother’s relationship with the father had terminated, and she was leaving both children in his care.

In March 2012, both parents were charged with Liquor Act violations. The father was sentenced to a term of incarceration from May 2010 to February 2011, having been convicted of family assault with weapons, and drug and alcohol offences. He was also sentenced to a term of probation for one year.

On July 11, 2010, the Court notified the Director of the conviction, and later sent the Director a transcript of the sentencing hearing of the father and expressed concern for the children’s welfare. [ 8 ] On November 2010, the child was taken out from his community by air ambulance, where he received treatment for a broken elbow. [ 9 ] On May 3, 2011, the child was treated for a fractured fibula. The mother says that this injury occurred while in her care, though she had stepped away for a few minutes.

During that time, the child’s older brother had apparently slammed a cabinet door on the child, breaking his leg. On May 4, 2011, the treating doctor, Dr. Moffat, called Social Services noting the child’s multiple rib, wrist and leg fractures. [ 10 ] Both children were apprehended on May 17, 2011. On May 23, 2011, the mother attended at the foster home and removed the child. With the assistance of RCMP, the child was eventually returned to the foster parent. The brother was later returned to the parents, after it was determined he was not in need of protection.

On June 2, 2011, a Justice of the Peace issued a First Stage Child Protection Order confirming the apprehension. That order was vacated. [ 11 ] On June 13, 2011, the child was transported to Winnipeg to receive medical treatment for a broken collarbone. It was explained that he had collided with another boy while running around. At that time he was in foster care with his maternal grandmother, and his mother had daily access. [ 12 ] On June 20, 2011, the child was sent to Winnipeg for an assessment. The social worker (Ms.

Ducharme), in a report dated June 14, 2011, expressed concerns as to child abuse and neglect, and indicated that the child had suffered five separate fractures since he was 15 months old, and that he recently suffered some rib fractures. [ 13 ] The Director contacted Dr. Ferguson, who opined that there was no other plausible explanation for the injuries except child abuse. On July 6, Dr. Ferguson wrote to Dr. Moffat describing the injuries suffered by the child. He had reviewed the child’s X-rays with Dr.

Reid, who described the child’s forearm fracture as a ‘nightstick’ or defensive fracture from guarding his face from a blow. A.

Decision on Appeal Nunavut (Director of Child and Family Services) v JA and JN, 2012 NUCJ 3 , [2012] NuJ No 4 [ 14 ] In support of the apprehension the Director relied upon three grounds: (1) that at the time of the apprehension the child suffered physical harm inflicted by a parent or caused by the parents’ unwillingness or inability to care for or supervise and protect the child; (2) that there was a substantial risk that the child would suffer physical harm inflicted by a parent or caused by inadequate supervision; and (3) that the child’s parent was unavailable or unwilling to properly care for the child and the child’s extended family had not made adequate provision for the child’s care; Act subsections 7(3)(a)(

b) and (n). [ 15 ] The reviewing judge noted that the last of the three affidavits filed at around the time of the apprehension provided sufficient evidence in support of the application and he would have upheld the order made by the Justice of the Peace if there had been an appeal; para 77. [ 16 ] The reviewing judge observed that the ‘test’, or standard of proof, the Director must satisfy at an initial hearing is lower than that at the hearing held to determine if the child requires protection; at para 56.

He then noted that in satisfying itself that the Director had led “some evidence to believe the child is in need of protection”, the Court should inquire whether the evidence given to justify the apprehension of the child fell within one of the categories enumerated in section 7(3) of the Act; at para 60. He further commented that the court “is not required to make any credibility findings and factual disputes should be resolved in favour of the Director”; para 47.

[ 17 ] In assessing the grounds, the reviewing judge noted that the only evidence as to the deliberate infliction of physical harm came from Dr. Reid, who expressed the opinion that the arm fracture was a defensive injury. However, the mother explained that this occurred when she was bathing the two boys in the bathroom, and that the child had slipped while attempting to climb a low window ledge and fell awkwardly, causing the break to his arm. The reviewing judge found that the parents did not intentionally inflict harm on the child.

He noted that only two of the injuries had occurred while the child was in the care of the mother and was also persuaded by the fact that the brother had been returned to the parents’ care. In arriving at this conclusion, he commented that Dr. Reid’s evidence was hearsay, and was not a factual dispute to be resolved in favour of the Director. [ 18 ] As regards the supervision of the child, the reviewing judge noted the mother’s admission “that she did not adequately supervise the child on the two occasions when he had accidents under her care”; para 86.

However, he concluded that the parents were now aware of the child’s fragility and his propensity to have accidents, and they were willing to take additional steps to properly supervise him in the future. Accordingly, he concluded that the parents had “addressed the risk of future harm from inadequate supervision”; para 87. [ 19 ] The reviewing judge dismissed the Director’s application for an order confirming the apprehension and directed that the child be returned to his parents within 14 days, with conditions.

The conditions directed that the parents (1) not leave the child unattended at any time; (2) not use physical discipline; (3) not be under the influence of alcohol when the child was in their care; and (4) participate in any parenting courses recommended by the Director. The conditions were removed on February 27, 2012, when it was determined that the Court had no jurisdiction to impose such terms, once the Court had dismissed the Directors’ application. III.

Ground of Appeal and Standard of Review [ 20 ] The Director cites a single ground of appeal, namely, whether the reviewing judge misapprehended the evidentiary burden on the Director with respect to his treatment of the evidence at the apprehension confirmation hearing. [ 21 ] The standard of review by an appellate court where there are alleged errors in legal principles is one of correctness.

This standard is also applied to the review of decisions in child protection cases: SF (Re), 2009 SKCA 121 at para 26 , 343 Sask R 112 . [ 22 ] Here the ground alleges an error of law in the application of the burden of proof under section 26(1) of the Act. The appropriate standard of review is correctness. IV. Legislation [ 23 ] The Supreme Court of Canada in Winnipeg Child and Family Services v KLW, 2000 SCC 48 , [2000] 2 SCR 519 , ruled that in the absence of any prior judicial authorization, there must be fair and prompt judicial screening of the grounds for apprehension of a child.

The fair and prompt post- apprehension hearing is the minimal procedural protection mandated by the principles of fundamental justice in the context of a child protection hearing; at paras 116, 131. Recently the constitutionality of two sections of the Act was successfully challenged on the basis that the impugned legislation did not provide any mechanism for a prompt judicial post-apprehension hearing: PE v The Director of Child and Family Services, 2010 NUCJ 24 at para 20 .

As a result of the decision in PE, the Act was amended to include provisions for an initial post-apprehension hearing and time lines to ensure prompt judicial screening of an apprehension. These amendments came into force on June 9, 2011. [ 24 ] The legislation creates a mandatory requirement for an initial post-apprehension hearing:

Section 24.

(1) Where a child is apprehended under paragraphs 10(1)(

a) or (2)(

a) or subsection 11(1), 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.

Section 26.

(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 by the court from time to time.

Section 26.

(3) Where an application is made under subsection 24(1), an initial hearing must be completed within 20 days after the dayon 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 wasapprehended.

Section 26.1 sets out the remedies available to the court at the hearing, including leaving the child in the care of the Director ordismissing the application.

Section 27 contemplates a more fulsome hearing to determine whether the child is in need of protection. V. Analysis [25] The legislation contemplates several stages: the apprehension itself (section 24), the post-apprehension screening (section 26) andultimately a protection hearing (section 27). The time lines within which the post-apprehension hearing must occur are tight: theapplication must be made within four days of the apprehension and the initial hearing must be held not later than nine days after it isfiled.

As it is an initial screening and not intended as a final determination, the evidence which will be available at this early stage islikely to involve affidavit evidence and hearsay. In the result, the evidentiary burden is lower than that which would be expected at theprotection hearing itself. [26] Several lower courts in other jurisdictions have considered the test to be applied under similar legislation.

If there is admissibleevidence at the initial hearing, which if believed by the Court could lead to a finding that the child is in need of protection, the childshould remain in the care of the Director until the actual protection hearing; KMT v JDT, [1999] BCJ No 822 at paras 10-13, 87 ACWS(3d) 498 (BCPC); Prince Edward Island (Director of Child Welfare) v DM, (PE SCTD), [1998] 163 Nfld & PEIR 36(PESCTD) at para 10.

The standard of proof in an interim child protection hearing has also been contrasted with that for committal at apreliminary inquiry in a criminal matter, in order to emphasize two important differences in the role to be played by the Court: (

a) Judges must direct their minds to the issue of credible or trustworthy evidence. The court must only act upon evidence that itconsiders credible and trustworthy in the circumstances. (

b) The court must assess the evidence. The application will only proceed when the court is satisfied that the Minister’s case revealsreasonable and probable grounds. (Nova Scotia (Community Services) v AM, 2010 NSSC 227 at para 20, 2010 NSSC 227 ,[2010] NSJ No 339, citing Family and Children’s Services of Kings County v YB, [2000] NSJ No 263 at paras 6-8) [27] We agree that this is the appropriate test at the initial hearing. The jurisdiction of the court at an initial hearing does not involve adetermination of whether the child is in need of protection.

The real question is the best way to care for the child until there can be acomplete examination at a protection hearing; Prince Edward Island (Director) v DM at para 10. An initial hearing is not the time thatwitnesses lead all of the evidence that will be adduced at the protection hearing; British Columbia (Director of Family and ChildServices) v WHK, 2003 BCPC 307 , [2003] BCJ No 1982 at para 15, 2003 BCPC. [28] The Director says that the reviewing judge cited the proper test, but misapplied it.

He submits that the initial hearing contemplatedby section 26(1) of the Act is intended to demonstrate whether there is some evidence which, if believed, would justify the apprehensionof the child in question.

Given the short time lines imposed by the Act, the evidence will necessarily include hearsay evidence, such asmedical evidence tendered through affidavits of child protection workers. [29] The respondent mother accepts that there is typically a lower standard of proof at the initial confirmation hearing, but that the lowerstandard ought not apply here as the hearing took place more than eight months following the apprehension. Accordingly, this allowedfor substantial evidence to be presented to the Court.

[ 30 ] The reviewing judge recognized that this was an unusual situation. He commented that Justices of the Peace throughout Nunavut regularly hear the initial applications to confirm an apprehension, and that they would normally have much less information before them than existed in this case; para 74. He concluded that because he had more information, he could weigh that evidence to reach the conclusion that the Director had not met its burden. In our view, by so doing, he erred in concluding that the Director had not met the low threshold required at the stage of the section 26(1) initial confirmation hearing.

He turned the initial hearing contemplated by section 26(1) into the full child protection hearing contemplated by

section 27 of the Act. [ 31 ] The respondent mother submits that the Director could have cross-examined the parents or adduced more medical evidence. But the Director approached the hearing on the basis that he need only meet his threshold burden and on the basis of what would normally be done before a Justice of the Peace. He did not come prepared with medical reports and the witnesses necessary to support those reports. Although the hearing was delayed (and by no fault of the respondents), the hearing was never intended to be anything more than the initial confirmation hearing contemplated by section 26(1).

The Directors’ testimony describing the evidence of the child protection workers and of the physicians who had examined the child was more than adequate to establish that there was some evidence that, if believed, could lead the Court to find that the child was in need of protection. Although that evidence was hearsay, the medical evidence and in particular the evidence of Dr. Ramsay, satisfied the threshold burden on the Director. That evidence can be challenged at the time of the more fulsome hearing contemplated by

section 27. [ 32 ] In the result, the reviewing judge erred in his application of the burden of proof on the Director under section 26(1) of the Act. [ 33 ] The Director applied to this Court for the admission of fresh evidence consisting of a report of a psychologist dated September 11, 2012. The report describes observations of the child since the apprehension and during the video conference access visits with his family.

Given our conclusion that there was sufficient evidence at the hearing to find that the apprehension order should be confirmed, it is unnecessary for us to address the need for any further medical evidence. VI. Conclusion [ 34 ] The appeal is allowed. The apprehension of the child is confirmed. The child will be placed in the interim custody of the Director pending a hearing under

section 27 of the Act. Mindful of the recent amendments to the Act intended to hasten a determination of the apprehended child’s status, the parties are urged to expedite the

section 27 hearing. To facilitate the hearing we direct that the parties, or any of them, may apply to a different judge of the Nunavut Court of Justice to expedite the

section 27 hearing or to amend the terms of access. Appeal heard on September 25, 2012 Memorandum filed at Iqaluit, Nunavut this 15th day of November, 2012 Côté J.A. Rowbotham J.A.

O’Ferrall J.A. Appearances: S. MacPherson for the Appellant J. Squire for the Respondent J.A. J. Squire as Agent for Andrea Smart