Children’s Aid Society of Algoma v. L.A., 2011 ONCJ 92

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 and is subject to subsections 48(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 . . . the 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) Prohibition: identifying child.— 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) Idem. — 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. Sault Ste. Marie Registry No. 150/2009 DATE: 2011·II·04 CITATION: Children’s Aid Society of Algoma v. L.A. , 2011 ONCJ 92 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF ALGOMA, Applicant, — AND — LOUISE A. and JAMIE B., Respondents. Before Justice John Kukurin Heard on 2 February 2011 Reasons for Judgment released on 4 February 2011

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], subsection 40(2) , subsection 40(7) , section 64(1) , clause 64(2)(

c) and subsection 64(8) . Jennifer A. Mealey ........................................................................ counsel for the applicant society Respondent mother, Louise A. ............................................................................. on her own behalf Eric D. McCooeye ......................................................... counsel for the respondent father, Jamie B. [ 1 ] JUSTICE J.

KUKURIN:— This is a decision on a motion (at tab 6, volume 3) brought by the applicant society during the currency of an order which placed the child Jamie (age 20 months) in the care and custody of his father subject to a supervision order for twelve months with a number of conditions, and subject to access in favour of the child’s mother, Ms. Louise A., also subject to a number of conditions. [ 2 ] The main basis for protection concerns with respect to the father in the child protection proceeding were drug use and domestic violence.

However, the father had addressed these sufficiently to satisfy the court that the child could be placed in his care with suitable conditions and with the oversight of society supervision. The child had been apprehended at birth in June 2009. The child was placed with him under a temporary order in late July 2010 and under a final order on 23 September 2010. The evidence suggested that Jamie was doing relatively well in his care.

The father had arranged for Jamie to be cared for by a baby-sitter, Becky, an acquaintance of his, for afternoons during August and September 2010 until he could make arrangements to get Jamie into day care. [ 3 ] In early December 2010, an incident took place in his home. He had both Jamie, and another child, Drayven, at his home. Drayven is his child from a more recent relationship and is subject to a separate child protection proceeding in which the main concerns emanate from the lifestyle of Drayven’s mother, Chantelle, which includes drug addiction.

The father was exercising overnight weekend access to Drayven when the incident occurred. The incident involved the presence of Chantelle, the mother of Drayven, at the father’s home during his overnight access visit with Drayven. There had apparently been some altercation between the father and Chantelle after which she had left the home. However, the police were contacted and she made a complaint that the father had assaulted her that night. He was charged with three counts of assault, this one, and two dated assaults that Chantelle recounted to the police in her statement.

The police arrested the father and were taking him to the police station. As he had both Jamie and Drayven in his care at the time, he arranged for Becky to care for the children for the rest of the night until he was released. Two society workers attended at Becky’s home the next morning at about 9:00 am to check on the children, and on arrival, detected a strong odour of marijuana at the doorway of Becky’s home. Both children were immediately removed. Jamie was apprehended and remained in the society’s care.

The society commenced the present status review application seeking Crown wardship without access and brought a motion (at tab 2) for an order placing Jamie in its interim care and custody. That motion was heard on 10 December 2010 and it was dismissed.

Jamie was returned to his father’s care and custody, but with one additional provision, namely, that he not communicate directly or indirectly with Chantelle, except through his counsel, or within a courtroom setting when necessary for court purposes. [ 4 ] On 9 December 2010, during the time that Jamie was still in care of the society, it arranged for a hair-follicle drug test of the child Jamie. The test results did not become available until Friday, 28 January 2011. The test apparently covered a six-month period (end of May to end of November 2010) and was unsegmented.

The results disclosed that Jamie had been exposed to cocaine (low level) and marijuana (moderate level) during this six-month period. The society sent an urgent request for clarification of the

interpretation of these test results to the laboratory that performed the testing. The society worker spoke with the lab technician about these

interpretations on Monday, 31 January 2011. Following this conversation, the society requested that the hair-follicle test provide segmented results with the intention of obtaining information as to the particular months during which the child was exposed to these drugs. This will apparently take several weeks. [ 5 ] Jamie had been returned to the father. On 31 January 2011, Drayven was also with the father on a three-day access visit from 30 January to 2 February. On Monday, 31 January 2011, the society apprehended Jamie and ended Drayven’s access visit, removing him from the father’s home.

The apprehension of Jamie was without a warrant. The society has brought its present motion (at tab 6) seeking an order for temporary care and custody of Jamie in its favour. It also wishes an order for paternal access with a number of conditions, one of which being the attendance of the father for random and scheduled urine and hair-follicle testing. This motion was served on 1 February 2011 on the father’s counsel. It was returnable on 2 February 2011, at 9:30 a.m. The father has not filed any responding evidence, which is somewhat understandable given the very short service.

However, he argued against the motion claims. [ 6 ] The society’s arguments are relatively straightforward. It argues first that the presence of cocaine and marijuana in the hair follicles of the child Jamie lead inescapably to the inference that he was exposed to these two substances in the period from May to November 2010. During this time, Jamie was in the care and custody of his father.

Among the conditions imposed on the father are the conditions that he not allow any person to care for Jamie who is, or appears to be, under the influence of non-prescribed dosages of drugs and that he not leave Jamie in the care of any other person without the prior approval of the society. He was also, himself, to abstain totally from consumption of both alcohol and non-prescribed dosages of drugs. The society intimates that he has breached one or all of these conditions.

Moreover, it argues that, regardless of where Jamie may have come into contact with these drugs, it was the father’s obligation as his custodian to ensure that this did not happen. This was particularly so having regard to the prominence that illegal drug use has played in the protection concerns surrounding Jamie, and now the child Drayven as well. [ 7 ] The society maintains that it had alerted the father that it had received information that the babysitter, Becky, was an active drug user, but he dismissed the society’s concern insisting that, to his knowledge, she was not a drug user.

The society had also warned the father about his choice of associations and, in particular, had told him unequivocally on 3 December 2010 that Chantelle was not to be at his home during his home access visits with Drayven. Despite this and despite his own expressed belief that she was an

incorrigible drug addict, he permitted her into his home less than a week later while both children were in his home. In fact, she had stayed at his home overnight in early December 2010. In

summary, the society feels that the father has made very poor choices, contrary to the advice of the society and that this has resulted in placing Jamie at risk of harm. The positive drug tests for cocaine and marijuana exposure only confirm the society’s beliefs. This, it argues, justifies a change in care and custody of Jamie, removing him from his father and placing him with the society pending the final outcome of this status review case. [ 8 ] The father’s response is threefold.

First, he asks that the court dismiss this motion of the society because it apprehended Jamie without first obtaining a warrant in circumstances where a warrantless apprehension was impermissible. Jamie, he insists, should be back in his care. Second, he argues that the evidence of the society does not lead to the inference that he breached any of the terms or conditions of the supervision order. In fact, he argues that the society’s evidence is equivocal as to where, when and how Jamie was exposed to cocaine and marijuana.

He does not suggest that the society’s evidence about marijuana at the home of the babysitter Becky should be disbelieved. He says that this does not necessarily mean that he breached the court order in arranging to place Jamie there, or that he was aware that drugs were being used or were going to be used there at that time. He argues that the society had known for a long time that he had used “Becky” as his babysitter for Jamie and it had basically acquiesced in this.

The society’s evidence, he suggests, is also consistent with a number of other explanations for the hair-follicle test results, including contact with Jamie’s mother, Ms. Louise A., a confirmed drug addict, during periods of her access visits with him.

His third argument is an attack on the quality of the evidence of the society, suggesting that the court ought not to accept the evidence from the laboratory or its personnel as the basis for any inference that the society is asking the court to make. [ 9 ] With respect to the warrant of apprehension argument, it is rather sad that there really is no practical remedy for an inappropriate warrantless apprehension in child protection matters. There is a reason for the existence of subsection 40(2) [1] and also for subsection 40(7) [2] of the Child and Family Services Act , R.S.O. 1990, c.

C-11, as amended (the “Act”). The statute gives to societies some rather extraordinary powers to take children away from their parents. However, these powers have limitations. The scheme of the apprehension process requires that the apprehension be done pursuant to a warrant issued by a justice of the peace. This is the general rule.

A warrantless apprehension is permitted only as an exception to that general rule and, in such a case, there must be a belief on reasonable and probable grounds on the part of the apprehending child protection worker, not only that the child is in need of protection, but more importantly, that there would be a substantial risk to the child’s health or safety during the time necessary to obtain an apprehension warrant.

The analysis of whether this belief is founded on reasonable and probable grounds would necessarily include a consideration of what time would be necessary to obtain the warrant, whether the risk inherent in leaving the child with its caregiver was to the child’s health or safety (or both), and whether the degree of the risk in that intervening period was “substantial”. [ 10 ] Unfortunately, there is no venue for such an analysis ever to take place in a practical sense. The Act does not contain any provisions for the review of a society worker’s warrantless apprehension.

Nor does it provide for any sanction should such apprehension be unjustified. In fact, the Act provides that a society that apprehends a child must have the “matter” before the court no later than five days after the child is removed. [3] The issue of whether the child should or should not be in the care of the person who had charge of the child prior to the removal by apprehension can be dealt with at that time.

In theory, at least, this imposes judicial oversight on the justification for the continuation of the removal and does so within a period of time that is statutorily deemed to be reasonable. [ 11 ] Unfortunately, this reasoning does not actually address whether the removal of the child was properly effected pursuant to the statute.

Nor does it address the fact that the child is removed from its lawful custodian and caregiver for the period between apprehension and the time that the matter is brought before the court (which could be up to five days), without any testing of the apprehending worker’s grounds for removing the child. Whatever determination the child protection court may make on the first court appearance is not with respect to the validity of the apprehension. Rather, it is with respect to the future care and custody of the child.

Unlike the criminal courts, where improper intrusions of the state can be attacked with significant evidentiary consequences, this does not seem to apply in child protection apprehensions. Nor should the outcome of the first court appearance, or even a subsequent court appearance, on the issue of interim care and custody, serve to supply any justification to an apprehension that was carried out improperly in the first place. [ 12 ] In this case, the society knew the results of the lab reports on Friday, 28 January 2011. Those results indicated that the child Jamie had been exposed to cocaine and marijuana.

The society did not apprehend on Friday. It waited until Monday, 31 January 2011. Moreover, it placed the much younger child Drayven with the father for overnight access on that same weekend. By Monday, the society did not acquire any more information that would lead to a conclusion other than the one at which it had arrived the previous Friday. Why then was the apprehension done without a warrant? The society had all day Monday to seek to obtain a warrant.

Even if it could not do so until Tuesday, what was the problem with leaving the child in the same environment in which it had left the child for the previous three days? It is no answer for the society to say that this is just the practice that it has adopted. [ 13 ] One of the attacks made by the father is to the quality of the society’s evidence. More specifically, he suggests that

interpretations of results of scientific hair-follicle testing should not be judicially accepted as gospel. These, he maintains, are not even close to the same category as, for example, DNA genetic testing or even fingerprint comparisons, in terms of reliability. Although he does not seem to question that a reasonable conclusion of these results is that the child Jamie has been exposed to cocaine and marijuana, this seems to be the limit of what he says can reasonably be interpreted from the test results that are in evidence. In short, the society is stretching the

interpretations to try to persuade the court to reach conclusions that simply are not warranted. [ 14 ] The father has no evidence that hair-follicle testing is an unreliable method of determining exposure of the hair-follicle donor to the substances for which the testing was done. [4] To this extent, I am prepared to accept the results. I would also, in absence of any contradictory evidence, accept what the test results show in terms of concentrations of the substances tested for. Beyond this, the court is necessarily left with

interpretations of what these results can mean in a particular case. Those

interpretations are in the nature of opinions of persons who should have some expertise in interpreting test results. The society’s evidence does not come from anyone whom the court has qualified as an expert. It is recounted in the affidavit of a society worker who is stating what she was told by a named lab technician working at the laboratory that conducted the hair-follicle testing of Jamie’s hair. [ 15 ] Accordingly, although I dismiss the father’s suggestion that hair-follicle testing is in the realm of “junk science”, there are limits to the inferences that I am making from the test results in this case.

[ 16 ] This leads to the remaining argument of the father on this motion. This has to do with what the society says is the appropriate judicial

interpretation to be made. Essentially, the father says that the court ought not jump to the conclusion that Jamie came into contact with cocaine and marijuana while in the actual and physical care of the father or in the father’s home.

Even if the court accepts the “interpretations” of the lab technician, these are equally consistent with the child’s having had contact ( i.e. , passive exposure) with cocaine during her mother’s access visits and having had contact with marijuana during the brief time that Jamie was being baby-sat by “Becky” on 7 December 2010 or perhaps even during the months of August and September when “Becky” was his regular baby-sitter. [ 17 ] I agree with the father’s argument. The evidence of the society is equivocal with respect to where and when Jamie came into contact with these drug substances.

Although there is evidence that he was a drug user in the past, there is no evidence that he has resumed drug use since Jamie has come into his care. [ 18 ] A segmented hair-follicle test may provide better information from which to draw inferences. I gather from the evidence that this is in the progress. I also understand that the father had his own hair-follicle test scheduled for 1 February 2011 with results not expected for about six weeks thereafter. This may provide even more information. [ 19 ] In the meantime, the parties want a decision on where Jamie will reside.

The motion of the society is brought in the course of an existing protection (supervision) order having a term of twelve months. The provision of the Act that deals with such a situation is subsection 64(8) . [5] The criterion for placing the child Jamie in his father’s care under a supervision order was that it was in Jamie’s best interests to do so. To make a change at this point, the court has to be satisfied that some material change in circumstances has taken place and that the best interests of the child now “ require ” that a change in care and custody take place.

Frankly, the evidence as to best interests is scanty. There has been some poor judgment by the father with respect to Chantelle but that has already been addressed by an order made a few weeks ago. The evidence (at least the evidence filed to date) does not satisfy me that the father has relapsed and is back to using drugs. I am not sure where, when or how Jamie’s exposure to drugs took place, other than that he was exposed to marijuana smoke on 7 December 2010.

Given the father’s circumstances, even though much of the responsibility for bringing them about can be laid at his feet, it is not unreasonable that he would request his baby-sitter to care for the children for the rest of that night. [ 20 ] The change in the child’s care and custody referred to in subsection 64(8) need not necessarily be a change in placement. It could involve maintaining the same placement but making changes to the conditions under which the care and custody is exercised.

In fact, the court should look to the less intrusive remedies in situations like these if they will be adequate to protect the child. In this case, I am more than persuaded that the father be prohibited from using “Becky” as a baby-sitter or alternate child caregiver for Jamie. I am open to any other reasonable suggestions for changes to the supervision order terms on an interim basis. [ 21 ] In terms of the order that I propose to make, it will involve a return of the chid Jamie to the father.

However, this will be an interim order only and the motion of the society (at tab 6) will be adjourned to a date to be set by the trial co-ordinator for a continuation of a hearing for a final order on this motion. My expectation is that I will have additional evidence by the time this motion is back before me, specifically the hair-follicle test results for the father and the segmented ones for the child Jamie.

(2) Warrant to apprehend child.— A justice of the peace may issue a warrant authorizing a child protection worker to bring a child to a place of safety if the justice of the peace is satisfied on the basis of a child protection worker’s sworn information that there are reasonable and probable grounds to believe that, (

a) the child is in need of protection; and (

b) a less restrictive course of action is not available or will not protect the child adequately.

(7) Apprehension without warrant.— A child protection worker who believes on reasonable and probable grounds that, (

a) a child is in need of protection; and (

b) there would be a substantial risk to the child’s health and safety during the time necessary to bring the matter on for a hearing under subsection 47(1) or obtain a warrant under subsection (2), may without a warrant bring the child to a place of safety. 64. Status review. —

(1) This

section applies where a child is the subject of an order under subsection 57(1) for society supervision or society wardship.

(2) Society to seek status review. — The society having care, custody or supervision of a child, . . . (

c) shall apply to the court for a review of the child’s status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for society supervision.

(8) Interim care and custody. — If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.