Children’s Aid Society of Toronto v. A.H., 2017 ONCJ 265

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 one or more of 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) 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) or 76(11) (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. CITATION: Children’s Aid Society of Toronto v. A.H., 2017 ONCJ 265 DATE: April 26, 2017 COURT FILE NO. C10605/17 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) CHILDREN’S AID SOCIETY OF TORONTO ) ) ) SIMON FISCH AND JUSTINE SHERMAN, for the APPLICANT ) APPLICANT ) ) - and - )

A.H. and S.T. ) GLENDA PERRY, for the RESPONDENT, A.H. MARK NORTHCOTT, duty counsel, for the RESPONDENT, S.T. RESPONDENTS AND ) COURT FILE NO.C48756-09 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO ) ) ) RENA KNOX, for the APPLICANT ) APPLICANT ) ) - and - ) M.C. and K.F. ) NANCY CHAVES, DUTY COUNSEL, for the respondent, M.C. MICHELLE MEIGHOO, DUTY COUNSEL, for the respondent, K.F. RESPONDENTS )

) ) ) ) BOTH HEARD: April 18, 2017 JUSTICE S.B. SHERR ENDORSEMENT Part One - Introduction [ 1 ] These are two cases before the court, in which the same jurisdictional issue arose. [ 2 ] In both cases, the Children’s Aid Societies (the societies) apprehended children from the care of their caregivers on Wednesday, April 12, 2017. The cases were first brought before the court on Tuesday, April 18, 2017. The court had been closed for the Easter holiday weekend from Friday April 14 to Monday April 17, 2017. [ 3 ] In the case of Children’s Aid Society of Toronto v.

A.H. and S.T., counsel for A.H. submitted that the court lacked jurisdiction to hear the case because the society had failed to bring the matter before the court within five days of the child’s apprehension as required by subsection 46 (1) of the Child and Family Services Act (the Act). [ 4 ] The Children’s Aid Society of Toronto submitted that the court did have jurisdiction to hear the case, because the fifth day following the apprehension of the child (April 17) fell on a holiday where the court office was closed and the time limit is extended to the next day that the court office is open.

That position was supported by the respondent, S.T. [ 5 ] The case was held down for the parties to prepare further submissions. [ 6 ] The next case on the court’s docket was Catholic Children’s Aid Society of Toronto v. M.C. and K.F. Counsel had just heard the jurisdictional issue raised in the previous case. The Catholic Children’s Aid Society agreed with the position taken by the Children’s Aid Society of Toronto that the court had jurisdiction to hear the case.

The respondents took no position on this issue. [ 7 ] Counsel on both cases agreed that the submissions would be heard together for the sole purpose of determining the jurisdictional issue. [ 8 ] At the conclusion of submissions, the court ruled that it did have jurisdiction to hear the cases and it would provide written reasons. These are those reasons. Part Two – A.H.’s position [ 9 ] Subsection 46 (1) of the Act reads as follows: Time of detention limited 46.

(1) As soon as practicable, but in any event within five days after a child is brought to a place of safety under

section 40 or

subsection 79 (6) or a homemaker remains or is placed on premises under subsection 78 (2), (

a) the matter shall be brought before a court for a hearing under subsection 47 (1) (child protection hearing); (

b) the child shall be returned to the person who last had charge of the child or, where there is an order for the child’s custody that isenforceable in Ontario, to the person entitled to custody under the order; or (

c) a temporary care agreement shall be made under subsection 29 (1) of

Part II (Voluntary Access to Services). [10] A.H. submitted that the five days set out in subsection 46 (1) of the Act means five days and cannot be extended, even if day fivefalls on a day that the court office is closed. A.H. submits that the case should have been brought before the court on Thursday, April 13th, before the long holiday weekend. [11] A.H. relied on the case of Kenora-Patricia Child and Family Services v. J.G., (ON CJ), [2001] O.J. No. 2290(OCJ) (the Kenora case), in support of her position.

In the Kenora case, the court dismissed a protection application for lack ofjurisdiction when a child was apprehended on a Tuesday and the case was brought into court the following Monday – a period of sixcalendar days. [12] In the Kenora case, the court found that the five days set out in subsection 46 (1) of the Act was the maximum period of time tobring the child before the court and if there was an intervening weekend, the society had to bring the matter to court on Friday topreserve the court’s jurisdiction.

The court placed emphasis on the words of subsection 46 (1), “as soon as practicable, but in any eventwithin five days”. The child in the Kenora case was apprehended at birth. In the circumstances of that case, the court found that the casewas not brought before the court as soon as practicable. [13] In the Kenora case, the court found that to permit, as a matter of routine, the extension of time to more than five days isinconsistent with the intent of the Act, to ensure that child protection cases are dealt with expeditiously, fairly and promptly. [14] A.H. also attempted to analogize this case to McLarty v.

Ontario (Family Responsibility Office, Director) (ON CA), 2001 O.J. No. 707 (OCA). In McLarty, the court ruled that the lower court had no jurisdiction to extend the 30 day time periodfor a support payor to bring a refraining motion before it to prevent the suspension of his or her driver’s licence. However, in McLarty,the support payor brought his refraining motion two and one half months after the time limit had expired.

The court did not deal with theissue of how time is counted and when a 30-day time limit expires if the last day of the time limit falls on a holiday or on a date that thecourt offices are closed. It has no application to this case. Part Three – The position of the societies [15] The societies do not dispute that their cases have to be brought to court within five days following a child’s apprehension – theydiffer with A.H. about how the five days are calculated.

They submit that if the fifth day following a child’s apprehension falls on aholiday, or on a date that the court office is closed, the time limit is extended until the next day that is not a holiday, or when the courtoffice is open.

The societies submit that their position on counting days is supported by the provisions of the Legislation Act, 2006 (theLegislation Act) and is consistent with the paramount purpose of the Act set out in subsection 1 (1) – to promote the protection, bestinterests and well-being of children. [16] The societies also submitted that their position on counting time is consistent with the procedure for counting time set out in rule3 of the Family Law Rules.[1] Part Three – Analysis [17] Sections 46 and 47 of the Legislation Act read as follows:

PART VI

INTERPRETATION

Application Application to Acts and regulations 46 Every provision of this Part applies to every Act and regulation. Contrary intention or context requiring otherwise 47

Section 46 applies unless, (

a) a contrary intention appears; or (

b) its application would give to a term or provision a meaning that is inconsistent with the context. [ 18 ]

Section 88 of the Legislation Act identifies what days are holidays. It reads as follows: Time Holidays 88

(1) This

section applies for the purposes of the definition of “holiday” in

section 87. Same

(2) The following days are holidays: 1. Sunday. 2. New Year’s Day. 2.1 Family Day. 3. Good Friday. 4. Easter Monday. 5. Victoria Day. 6. Canada Day. 7. Labour Day. 8. Thanksgiving Day. 9. Remembrance Day. 10. Christmas Day. 11. Boxing Day. 12. Any day fixed as a holiday by proclamation of the Governor General or Lieutenant Governor. Same

(3) When New Year’s Day falls on a Sunday, the following Monday is also a holiday. Same

(4) In accordance with the Holidays Act (Canada), when July 1 is a Sunday, Canada Day falls on July 2. Same

(5) When Christmas Day falls on a Saturday, the following Monday is also a holiday, and when it falls on a Sunday, the following Tuesday is also a holiday. [ 19 ]

Section 89 of the Legislation Act sets out how time in a statute or regulation is to be computed, subject to

section 47 of the Legislation Act as follows:

Computation of time Holidays 89

(1) Time limits that would otherwise expire on a holiday are extended to include the next day that is not a holiday. Days on which offices closed

(2) Time limits for registering or filing documents or for doing anything else that expire on a day when the place for doing so is not open during its regular hours of business are extended to include the next day the place is open during its regular hours of business. Number of days between events

(3) A reference to a number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens, even if the reference is to “at least” or “not less than” a number of days. Specified day included

(4) A period of time described as beginning or ending on, at or with a specified day includes that day. Specified day excluded

(5) A period of time described as beginning before or after a specified day excludes that day. Months

(6) If a period of time is described as a number of months before or after a specified day, the following rules apply: 1. The number of months are counted from the specified day, excluding the month in which the specified day falls. 2. The period includes the day in the last month counted that has the same calendar number as the specified day or, if that month has no day with that number, its last day. 3. Repealed : 2009 Leap years

(7) The anniversary of an event that took place on February 29 falls on February 28, except in a leap year. [ 20 ] Subsection 89 (1) of the Legislation Act clearly states that for the purpose of counting days, a time limit that would otherwise expire on a holiday is extended to the next day that is not a holiday. [ 21 ] Subsection 89 (2) of the Legislation Act clearly states that time limits that expire on days that the court office is closed are extended to include the next day it is open during its regular hours of business. [ 22 ] In these cases, the five-day time limit set out in subsection 46 (1) of the Act would have otherwise expired on Monday, April 17, 2017.

Since that day was the Easter Monday holiday, the time limit is extended by the Legislation Act to the next day – the day the cases were brought before the court. [ 23 ] These provisions of the Legislation Act apply unless a contrary intention appears in the Act or if its application would give to a term or provision a meaning that is inconsistent with the context of the Act (Sections 46 and 47). [ 24 ] No contrary intention to exclude the applicability of the Legislation Act appears in the Act. If the Legislature did not want the relevant provisions of the Legislation Act (or its predecessor, the

Interpretation Act ) to apply, it could have clearly stated this. [ 25 ] Further, the application of these provisions of the Legislation Act do not give to a term or provision in the Act a meaning that is inconsistent with the context of the Act. [ 26 ] In making this determination, the court has considered the following factors:

a) The paramount purpose of the Act, set out in

section 1, is to promote the best interests, protection and well-being of children. TheAct is remedial legislation. It should be given a flexible

interpretation to meet its paramount purpose.

b) The period between a child’s apprehension and the first appearance in court is a very important stage of the case and should not beunduly truncated. Often, the societies are at a very preliminary stage of their investigation. Further investigation before the firstappearance has many purposes including: 1. It gives the societies the opportunity to determine if they can safely return the child to the persons or persons who had charge of thechild prior to the apprehension by way of a temporary agreement under subsection 29 (1) the Act.[2] In these situations, there would beno court case. 2.

It gives the societies an opportunity to determine if they can safely return the child to the person or persons who had charge of thechild prior to the apprehension by way of a temporary court-ordered supervision order. 3. It gives the societies the opportunity to determine if the child can be safely placed with a family or community member, as opposedto remaining in society care, with or without terms of supervision. 4. It gives the societies the opportunity to determine if alternate dispute resolution is warranted.

c) If the societies have inadequate time to investigate whether a less intrusive alternative is viable, they are more likely to take a moreintrusive position on the first court appearance out of an abundance of caution. This would not be consistent with the primary purpose ofthe Act. It would also, in many cases, cause unnecessary friction and mistrust between the societies and the child’s caregivers. Suchfriction and mistrust can impair future progress being made on the case, to the detriment of the child.

d) The societies not only need reasonable time to investigate the case, but require a reasonable period of time to prepare theirpaperwork for court. This paperwork includes the Protection Application, a Notice of Motion and supporting affidavit material. Thesocieties, in a very short period of time, need to provide the court with the necessary evidence to justify their intervention and thetemporary orders they seek.

Often, this is not a simple exercise – particularly when there has been historical involvement with the family.The court has to make important placement decisions at each appearance and it is not in the best interests of children to have poorevidentiary records presented to the court because of lack of time to prepare them properly.

e) The parents or any other person asking to have the child placed in their care need a reasonable period of time to consult counsel andto marshal and present evidence to the court for the first return date before the court. [27] The court agrees with the court’s observation in the Kenora case that child protection cases should not be delayed and thatpersons who have had their children apprehended should have their cases brought to court as soon as practicable.

However, this courtdiffers from the Kenora case in its determination of the applicability of the Legislation Act to the Act and how time is counted.[3] Thiscourt finds the provisions of the Legislation Act to be clear, that there is no contrary intention in the Act so that the Legislation Actshould not apply to it, and that the applicability of these provisions are consistent with the overall context of the Act – particularly theparamount objective of the Act set out in

section 1. [28] In the cases before the court, the children were apprehended on a Wednesday. It would be unreasonable to expect the societies tobe able to properly investigate the least disruptive alternative for the children, prepare proper paperwork and have the matter heard incourt on Thursday, as submitted by A.H. The children were brought before the court as soon as practicable. [29] This same issue was addressed in the case of Catholic Children’s Aid Society of Metropolitan Toronto and S. (I.) (District Court), (ON SC), 62 O.R. (2d) 711.

As in the Kenora case, the child was apprehended on a Tuesday and brought before thecourt on the following Monday – six calendar days after the apprehension. The Provincial Court judge found that the court had nojurisdiction to hear the case. On appeal, the court found that the

Interpretation Act applied to the Child and Family Services Act, 1984,and since Sunday was defined as a holiday under the

Interpretation Act, the case could be brought before the court on the Monday.[4]

[ 30 ] In S. (I.) . the court wrote at page 5: If I had held otherwise, then in this case where the child was apprehended on Tuesday, November 3, 1987, the society’s motion would have had to have been brought into court on Friday November 6, 1987, because the court does not sit on Saturdays. The society would have had only three days instead of five within which to investigate and decide which of the three option in s. 42 (1) of the Act was most appropriate in these circumstances. [ 31 ] The court in S.(I.) found that this

interpretation was consistent with the paramount objective of the child protection legislation and that the curative provisions of the

Interpretation Act are applicable to the five-day provision. This court agrees with this reasoning. [5] [ 32 ] The case of Kenora-Patricia Child and Family Services v. R.S., [1989] O.J. No. 3033 (Ontario District Court) also supports the position taken by the societies. [ 33 ] This was an appeal of a decision from the Provincial Court (Family Division). The society had filed a status review application on Monday September 26, 1988. However, the order that was the subject of the application normally would have expired the day before, on Sunday September 25, 1988.

The trial judge found that the application for status review was out of time and therefore the court had no jurisdiction to deal with it. [ 34 ] The appeal court found this to be an error of law. The court found that the

Interpretation Act applied. Since the last day of the status review order fell on a Sunday (which was a holiday as defined by the

Interpretation Act ), the court did not lose jurisdiction when the application was filed on the next day that was not a holiday. [6] Part Four – Conclusion [ 35 ] The court finds that the provisions of the Legislation Act apply to subsection 46 (1) of the Act in these matters.

If the fifth day following the apprehension of a child falls on a holiday, the time limit in subsection 46 (1) of the Act is extended to the next day that is not a holiday. [7] If the fifth day falls when the court office is not open, the time limit is extended to include the next day that the court office is open during its regular hours of business. [8] [ 36 ] In these cases, since the fifth day following the apprehension of the children was April 17, 2017, being the Easter Monday holiday and a day that the court office was closed, the court did not lose jurisdiction when the cases were brought before it the following day. [ 37 ] The court finds that the societies brought these cases before the court as soon as practicable and in any event within five days, as defined by law. [ 38 ] The court thanks counsel for their excellent submissions.

Released: April 26, 2017 ______________________________ Justice S.B. Sherr

Temporary Care Agreements Temporary care agreement 29.

(1) A person who is temporarily unable to care adequately for a child in his or her custody, and the society having jurisdiction where the person resides, may make a written agreement for the society’s care and custody of the child.