SUPREME COURT OF Nova Scotia
FAMILY DIVISION
Citation: Nova Scotia (Community Services) v. LC., 2023 NSSC 74
Date: 20230302
Docket: Sydney No. 127880
Registry: Sydney
Between:
Minister of Community Services
Applicant
v.
LC and RM
Respondents
| Judge: |
The Honourable Justice Lee Anne MacLeod-Archer |
| Heard: |
February 13, 2023, in Sydney, Nova Scotia |
| Written Release: |
March 2, 2023 |
| Counsel: |
Tara L. MacSween for the Applicant Jill Perry for the Respondent LC Jennifer Anderson for the Respondent RM |
Restriction on Publication: Restriction on Publication
Pursuant to subsection 94(1) of the Children and Family Act, S.N.S. 1990, c. 5, there is a ban on disclosing 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 pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child.
By the Court:
BACKGROUND
[1] This child protection proceeding involves two young children and their parents. The mother has a history of involvement with the Minister, both as a child and as a parent. The father also has involvement as a parent dating back to 2015.
[2] The Minister most recently became involved with the parents in July, 2022 after receiving a referral of family violence and drug abuse. During that investigation, a safety plan was developed with the parents under which they agreed to refrain from contact with each other in the presence of the children.
[3] Another referral was received on September 27, 2022 from police. They reported that, as a result of an argument between the parents, LC took the children and moved to Transition House (a women’s shelter). RM allegedly followed her there, and another altercation ensued. RM was charged with assault as a result. Conditions including no contact between RM and LC were put in place.
[4] After meeting with LC to discuss the referral, the Minister initially agreed to continue the safety plan which saw the children remain in LC’s care but required no contact between the parents. LC assured the Minister that she would comply with the no contact provisions, and she made arrangements with Transition House to secure suitable accommodations for herself and the children.
[5] However, after these discussions and planning, the Minister learned that an earlier argument between the parents involved a knife. Social workers also interviewed the older child, at which time it became apparent that she’d been exposed to more conflict than initially understood. As a result, the Minister decided that the children could not stay with LC; the Minister instead developed a plan to place them in the care of their paternal grandmother.
[6] The social worker’s supplemental affidavit indicates that when she met with LC about the revised plan, LC became very upset and objected to it. Despite LC’s objections, she was told that the “plan needed to happen.”
[7] After LC became “elevated”, the social worker spoke with her supervisor, who agreed to bring a Notice of Taking (Form 60A.07) to Transition House. They further agreed to hold a risk management conference (RMC) to confirm its decision to serve LC and take the children into care “if LC did not agree to the safety plan.” In addition, the social worker phoned police because of LC’s “elevated state” and concerns with self-harm.
[8] The social worker’s affidavit states that the Director of Transition House met with her and her supervisor, at which time The Director asked if she could serve LC with a Notice of Taking. The Director’s offer was declined, citing the need for the Notice to be served by a Minister’s representative.
[9] The Director then told the social worker that her staff were able to “calm [LC] down”. She expressed the belief that LC might cooperate with the plan to place the children with the grandmother, but she cautioned against the social worker trying to meet with LC again, for fear that she’d become “elevated again”.
[10] The Director “asked if she could take the children outside [to the grandmother] with LC’s permission.” The social worker responded that “if LC would agree to the safety plan, then we would not serve her with the Notice of Taking.”
[11] The Director then entered Transition House and brought the children out to their grandmother. The Minister characterizes this as agreement by LC to the plan to place the children with the paternal grandmother. The Director did not provide evidence, so it’s not clear what discussions took place inside Transition House.
[12] LC’s affidavit addresses these events. She describes a high level of distress for both her and the children. She indicates that she “cooperated as best I could, but I was still upset and crying.” She further states that she “never felt that I had any choice in any of this. I eventually cooperated because I thought I had to and because I wanted to make things easier for my children.”
[13] According to LC, after the children were placed with the grandmother, she was told that supervised access visits would be set up. Access was arranged within a week, but LC says that she was “never given a choice about where the visits would happen, how long they would last, or how many times a week” she would see her children.
[14] The social worker’s affidavit indicates that a RMC was held on September 28, 2022 (that date was corrected on direct examination to be September 29, 2022). At that time, the Minister determined that the risk to the children was high and that the Minister would “seek court involvement”. It was agreed that the Minister would “seek and order that the children be placed with [the paternal grandmother] under a non-party supervision order, and the parents will have supervised access.”
[15] The Minister filed its Notice of Child Protection Application (the Application) on November 14, 2022. That was seven weeks after the children were placed with the grandmother, and seven weeks after the decision was made to pursue a court application.
[16] The parties disagree whether the plan to place the children with the grandmother on September 27, 2022 was consensual or whether it was imposed by the Minister. The difference is important, because an arrangement imposed on the parents could constitute a taking into care, which triggers the requirement under s.39(1) of the Children and Family Services Act, SNS 1990, c. 5 (“CFSA”) to bring the matter to court within 5 days.
[17] The Minister says that the arrangement put in place that day was consensual. It acknowledges that LC wasn’t happy about it, but says that she agreed.
[18] LC disagrees. She says that the arrangement was imposed on her despite her objections. RM supports her position. He says that he didn’t hear of the plan until the children were in his mother’s care.
COURT PROCEEDINGS
[19] The matter came before the Court for the first interim hearing on November 17, 2022. At that first appearance, I questioned whether there had been a “constructive taking into care” given the seven weeks that had passed, and whether that impacted my jurisdiction to deal with the matter.
[20] The Minister’s response was that the children were not taken into care, rather they had been placed with the paternal grandmother with LC’s agreement. The Minister characterizes this as a “safety plan”. It is the Minister’s position that because no Notice of Taking was served, that the matter was properly before the Court within 5 business days of filing the Application.
[21] The parents attended the 5 day hearing on November 17, 2022, but they were unrepresented. I adjourned the hearing to November 21, 2022 to allow them time to retain counsel and to address the issue of jurisdiction.
[22] Unfortunately, when the matter returned on November 21, 2022 counsel for LC wasn’t in a position to argue the issue of jurisdiction. As a result, and as required by s.39(4) of the CFSA I granted a 5 day interim order based on “reasonable and probable grounds” to believe the children were in need of protective services, relying on the affidavit evidence before me. I adjourned the interim hearing for conclusion within thirty days as permitted by the legislation, but I left open the question of whether the court has jurisdiction to deal with the matter if there was a “constructive taking into care” (with reference to Nova Scotia (Community Services) v. KB, 2021 NSSC 372 and Nova Scotia (Minister of Community Services) v KM, 2023 NSSC 8) on September 27, 2022.
[23] When the matter came back before the Court on December 14, 2022 both parties had counsel, but again, counsel weren’t in a position to argue the jurisdictional issue. I completed the interim hearing as required by the legislation and granted a further interim order placing the children in the supervised care of the grandmother, with supervised access for the parents.
[24] A date was set for the Protection hearing, along with a pretrial conference to discuss submission on the issue of jurisdiction. After receiving RM’s submissions on the issue of jurisdiction, the Minister raised the question of whether the parents must put the Attorney General for the province of Nova Scotia on notice pursuant to the Constitutional Questions Act, RS, c.89. After giving directions regarding the filing of affidavits, I indicated that I would deal with the constitutional issue at the outset of the hearing.
[25] The Protection hearing was commenced on January 30, 2023. The parents were cross-examined on their affidavits and excerpts from the social worker’s notes (ICM notes) were tendered as business records. I heard further submissions from counsel and reserved my decision for delivery from the bench. This is the written version of that decision.
ISSUES
1. Do the Respondents have to put the provincial Attorney general on notice ?
2. Was there a constructive “taking into care” of the children by the Minister?
3. If there was a taking into care, did the Minister meet the legislated timeframe for filing a Child Protection Application?
4. If the Minister did not file its Application by the legislated deadline, does this Court have jurisdiction to grant an order?
ISSUE 1: Were the Respondents required to put the provincial Attorney General on notice ?
[26] In his written submissions, RM cites Winnipeg Child and Family Services v KLW [2000] 2 SCR 519 (SCC) in support of his argument that child protection proceedings engage s.7 Charter rights. Counsel argues that the Minister must therefore move child protection matters to a “prompt post-apprehension hearing to respect everyone’s Charter rights.”
[27] In response, the Minister argues that by invoking Charter rights, RM was required to place the provincial Attorney General (the AG) on notice under s. 10 of the Constitutional Questions Act.
[28] The Constitutional Questions Act states:
10(2) Where, in a court in the Province, in a proceeding other than a proceeding where the Attorney General for the Province is a party, is represented by counsel or has appointed counsel,
(a) the constitutional validity or constitutional applicability of any law is brought into question; or
(b) an application is made to obtain a remedy,
the court shall not adjudge the law to be invalid or inapplicable nor shall it grant the remedy until after notice is served on the Attorney General in accordance with this Section.
[29] Section 10(4) of the Constitutional Questions Act requires notice to the Attorney General of the Province to be served at least fourteen days before the hearing.
[30] RM says that there is no constitutional issue for determination. He is not seeking to strike down the CFSA, nor is he seeking a remedy under s.24 of the Charter. As a result, he asserts that there’s no obligation to put the AG on notice. LC takes the same position.
[31] At the Protection hearing, counsel made further submissions on the issue. RM reiterated that, although Charter rights are engaged in the child protection proceeding, the parents are not seeking a Charter remedy. Instead, RM argues that the desired result can be reached by using the “best interests of the child” test set out in the CFSA, keeping in mind the “spirit and intent” of the legislation.
[32] I questioned whether, if Charter rights hadn’t been mentioned, RM’s argument would be the same ? Counsel confirmed that RM would still be arguing that the Minister failed to bring this matter before the court within five days of taking the children into care, as required under s.39(1) of the CFSA. As well, the relief that the parents seek would be the same: the Application must be dismissed, based on the court’s lack of jurisdiction.
[33] The CFSA came into effect in 1990, well after the Charter was adopted and the Supreme Court had weighed in on its implications. It’s clear from the preamble to the CFSA, which is coached in constitutional language, that it was drafted in a post-Charter landscape.
[34] The parents were clear that they are not seeking a Charter remedy. It’s still appropriate to interpret the legislation and caselaw through the lens of Charter rights, but I need not resort to the Charter to adjudicate the issue of jurisdiction. As such, I concluded that the parents were not required to put the AG on notice.
ISSUE 2: Was there a constructive “taking into care” of the children by the Minister?
[35] As noted in Minister of Community Services v KM, 2023 NSSC 8 and Minister of Community Services v KB, 2021 NSSC 372 the term “taking into care” is not defined in the CFSA. In KB Justice Christianson concluded that whether a “taking” occurred is a finding of fact arising from the particular circumstances of each case. I agree.
[36] In KM I used the list of questions posed by Justice Christenson in KB as a guide in developing my own list of factors to be considered in these cases. As in KM, I am also guided by the legislation and, in particular the sections of the preamble which state:
…
AND WHEREAS the basic rights and fundamental freedoms of children and their families include a right to the least invasion of privacy and interference with freedom that is compatible with their own interests and of society’s interest in protecting children from abuse and neglect;
AND WHEREAS parents or guardians have responsibility for the care and supervision of their children and children should only be removed from that supervision, either partly or entirely, when all other measures are inappropriate;
…
AND WHEREAS the rights of children, families and individuals are guaranteed by the rule of law and intervention into the affairs of individuals and families so as to protect and affirm these rights must be governed by the rule of law;
[37] My findings are as follows:
1. Did the Minister state an intention to take the child into its care?
Yes, the Minister stated an intention to take the child into its care if LC did not cooperate with its plan.
2. Did the Minister prepare and serve a Notice of Taking?
The Supervisor brought blank Notices of Taking to Transition House, ready to be completed, signed, and served by the social worker, but the Notices were not served. I note here that had the Notices been served, LC would have been advised in writing that she could retain and instruct legal counsel (see Form 60A.07).
3. Did the Minister implement a “safety plan”? If so, under what circumstances did that arise? Did the Minister advise the custodial parent how long the “safety plan” would remain in place?
The Minister implemented a safety plan with the parents’ consent in July, 2022 while it investigated a referral. That safety plan required the parents to refrain from contact in the presence of the children.
After the police referral on September 27, 2022, the Minister initially discussed continuing that safety plan with LC, pending further investigation. The social worker discussed that plan with RM, who expressed concerns about LC’s mental health and raised concerns with her misusing prescription medication. Despite those concerns, the Minister initially told LC that the safety plan would be left in place “for now”.
The Minister did not change course until it received information about a fight between the parents in which a knife was used, and after learning that the older child had been more exposed to the conflict than originally thought. At that point, the Minister decided that the children could not stay with LC and the social worker and Supervisor developed a plan to place the children with the grandmother.
It was only after the Minister made those decisions that the social worker communicated the change in plan to LC. She became highly upset and “elevated”. She objected, but the social worker told her that the revised plan “needed to happen”. It was effectively presented as a “fait accompli”.
After that discussion with LC and realizing her level of upset, the social worker’s ICM notes indicate that it was discussed that “if [LC] does not agree with this plan, we would serve her with a Notice of Taking and place the children with [the grandmother] on extended access and look to switch from a Section 33 to a section 32 at the 5 day”.
The ICM notes also indicate that the social worker called the grandmother to come retrieve the children, but cautioned her against contact with LC because LC “was not okay with this plan…”
There is no evidence that the social worker communicated to LC how long placement with the grandmother would continue, although she did tell LC that the Minister always looks to reunite families. She also cautioned LC against telling the children how long they would be with their grandmother.
The social worker says that she told LC of her right to consult a lawyer or speak with her Supervisor about the plan, but LC does not recall hearing that. She didn’t consult a lawyer or speak to the Supervisor.
4. Did the Minister expressly advise the custodial parent of the implications of a failure to cooperate with the “safety plan”?
The evidence doesn’t disclose any discussion between the social worker and LC about whether (or what kind of) more intrusive measures might be taken if she didn’t cooperate with the plan. However, this is a moot point, because the plan to remove the children from LC’s care was already highly intrusive.
5. Was the “safety plan” implemented by consent or was it imposed by the Minister?
LC had agreed to the earlier safety plan, but became very upset when told that the plan had changed.
Although the Minister says that she agreed to the plan by sending the children out with Transition House workers, LC says that she concluded that she had no choice but to send the children to their grandmother. I accept her evidence in this respect. The plan was not implemented by consent. In effect, when the social worker told LC that the plan “needed to happen”, she was telling her that the plan would happen with or without her cooperation.
This is supported by the fact that the social worker directed the grandmother to call police if LC showed up at her home. It’s clear that if LC tried to retrieve the children, she would be refused, and police would be called to remove her from the premises.
In addition, the social worker told the Supervisor that LC was “not okay” with “our plan” and she told the grandmother that LC was “not okay” with the plan to place the children with her.
6. Did the “safety plan” restrict the custodial parent’s care and control of the child? To what extent?
The plan put in place by the Minister restricted all aspects of the parents’ care and control of the children. LC was not permitted to retrieve the children, nor even to see them while access arrangements were made through the Minister. Although that took place fairly quickly, it still meant that LC was permitted no contact with the children for about a week.
7. Who was present when the “safety plan” was developed? What impact did their presence (or other factors such as legal advice) have on the issue of voluntary consent?
Two social workers met with LC on September 27, 2022. They met with her on at least two occasions that day. LC states in her affidavit that when one particular social worker (RW) talked to her it “made me feel scared” and every time that social worker came to talk to LC she felt “very anxious and shakey.” In fact, the second time that social workers attended to meet with LC, Transition House staff cautioned RW not to meet with LC again, so as not to trigger more “elevated” behaviours.
In such circumstances, the power imbalance is significant. The presence of two social workers, their Supervisor, and police could reasonably lead a parent to conclude (as LC says she did) that they have no choice but to cooperate with the Minister. This scenario doesn’t support the Minister’s assertion that LC agreed to the plan voluntarily. Instead, there’s evidence that LC expressly objected to the plan and that the Minister recognized that.
8. Did the Minister physically remove the child from the custodial parent’s care? Or did the Minister imply or express/state that the child was in its care and control ?
The Minister did not physically remove the children from LC’s care. Instead, the Director of Transition House delivered the children to the social workers. The Director wished to avoid further escalation, but in effect, the Director operated as an agent of the Minister in removing the children from LC’s care.
The Minister did not expressly state that the children were taken into care, but it is implied that the Minister did so, because it was directing the children’s placement (over LC’s objections) and limited the parents’ contact with the children.
9. Did the custodial parent expressly state their intention to cooperate with the “safety plan”? Did they state a different intention at any time?
LC says that she cooperated with the plan because she had no choice. She says that “It was clear that there was nothing I could do to change their minds.” and that she “knew I had to co-operate with Child Welfare in order to get my children back… “.
She never stated an intention to cooperate with the plan, and she clearly voiced her objection to it.
The fact that the social workers told the grandmother that LC was “not okay” with the plan and to call police if LC showed up at her home supports this conclusion. They suspected that LC might try to remove the children from the grandmother’s home, as she did not agree with placing the children with her.
I accept the argument of LC’s counsel, who said that the plan was imposed by the Minister. It’s hard to conclude otherwise, given the evidence. If there was cooperation, I find that it was not informed or voluntary, and was given under duress.
10. Did the Minister put the specifics of the “safety plan” in writing? If so, was it done in a reasonable period of time?
No plan was presented to the parents in writing. The first “papers” that LC received were served after the Application was filed.
The long-term protection social worker assigned to the file says in her affidavit that she and RM “discussed putting a case plan in place” on January 17, 2023 after a court conference. That was two months after the Application was filed and almost four months after the children were taken into care.
The same social worker met with LC on January 30, 2023 at which time she asked LC “if she was consenting to the children remaining in the placement with [the grandmother] while she works on herself. [LC] said yes. I [the social worker] asked if she felt the children remaining with [the grandmother] was in their best interests for now, and [LC] said yes.”
Other than her consent to the interim orders (communicated through counsel at the interim hearings) this is the only evidence I have that LC expressly agreed with the plan for the grandmother to care for the children. Again, that discussion was four months after the Minister removed the children from LC’s care.
The Minister’s actions on September 27, 2022 removed LC from a caregiving role. It effectively transferred control of the children to the Minister, who chose the paternal grandmother to provide a placement despite LC’s objections.
After September 27, 2022 the Minister dictated the time, place and type of contact that the parents had with the children.
11. Did the Minister make a decision to initiate a Court Application under the CFSA? When was that decision made?
The social worker’s ICM notes indicate that she and her Supervisor “discussed’ bringing an Application on September 27, 2022 if LC did not cooperate with the plan to place the children with the grandmother. They also “discussed” serving LC with a Notice of Taking if she didn’t cooperate with the revised plan.
Despite this, the Minister argues that it made no decision to serve the Notice of Taking or to bring an Application on September 27, 2022. Counsel argues that there was only a consult with a Supervisor, not a formal RMC. Counsel argues that decisions on whether a Notice will be served, and whether an Application will be filed, are only made at a RMC.
The ICM notes show that a formal RMC was held two days later. Two social workers (one of them RW) and the same Supervisor met to review the history of the file. They decided to file an Application seeking placement with the grandmother under the Minister’s supervision, with supervised access for the parents.
I note that the ICM notes reflect almost the exact same discussion two days earlier, on September 27, 2022. At that time, two social workers and the Supervisor were on the phone. So although the notes don’t indicate that a formal decision was made on September 27, 2022, for all intents and purposes, the Minister had decided how to proceed.
It’s semantics to call the decision made on September 27, 2022 merely a consult. The social worker acted on the direction of her Supervisor after that discussion. The outcome was a foregone conclusion before the RMC was held. Again, a formal RMC may be required under policy, but on the ground on September 27, 2022 decisions were being made and implemented. Indeed, LC was told the plan “needed to happen” and the Minister was ready to serve the Notice of Taking if the Director of Transition House hadn’t been able to convince LC to let the children leave with her.
The Minister concedes that the intention (at least after September 29, 2022) was to file an Application. It also concedes that seven weeks’ delay in filing is unacceptable. Counsel says that the Minister is taking steps to ensure that such files move along in a more timely way in future.
12. Did the custodial parent cooperate with the “safety plan”? Or was there a triggering event that gave rise to a Notice of Child Protection Application being filed?
The parents cooperated with the plan. LC felt that she had no choice.
There is no evidence of a triggering event that precipitated the Application. The Minister concedes that the intention (at least after September 29, 2022) was to file an Application.
13. Did the Minister take reasonable steps to advance the file (once a decision was made to initiate an Application) and bring the “safety plan” to an end?
The Minister did not take reasonable steps to advance the file. It took seven weeks to file the Application, during which the children were living with the grandmother and the parents’ contact with them was restricted. Despite the Minister’s acknowledgement that seven weeks is inordinately long, there is no explanation for the delay.
[38] Based on all of the above, I find that there was a “constructive taking into care” of the children on September 27, 2022. The steps taken that day mirror what would happen in an ordinary “taking into care”, but for the Minister opting not to serve the Notice of Taking.
[39] The Minister argues that “there is no such thing” as a “constructive taking into care”. It points out that s.33 of the CFSA provides the Minister with authority to take children into its care “without warrant or court order” where the Minister’s representative has “reasonable and probable grounds to believe that the child is in need of protective services and the child’s health or safety cannot be protected adequately otherwise than by taking the child into care.” [emphasis by the Minister]
[40] The argument is that because the CFSA doesn’t define or make reference to a “constructive taking”, or outline the factors to be considered in determining whether one has occurred, there can’t be such a thing as a “constructive taking”.
[41] This argument ignores the fact that the CFSA mandates a five day deadline to bring a file to court where a child has been taken into care because a warrant or court order is not required in advance.
[42] In KLW, the Supreme Court of Canada stated:
122 While the infringement of a parent’s right to security of the person caused by the interim removal of his or her child through apprehension in situations of harm or risk of serious harm to the child does not require prior judicial authorization for the reasons outlined above, the seriousness of the interests at stake demands that the resulting disruption of the parent-child relationship be minimized as much as possible by a fair and prompt post-apprehension hearing.
[43] Counsel for the parents argue that s.39(1) of the CFSA sets a tight deadline after a child is taken into the Minister’s care for the exact reasons outlined by the Supreme Court. I agree.
[44] The Minister also argues that a s.33 proceeding is triggered by “an agency holding a risk management conference, making a decision to take a child into care, and serving a parent or guardian with a Notice of Taking forthwith…” But these are procedures put in place by the Minister to comply with the legislation, they are not legislated steps.
[45] In fact, what’s required to trigger a s.33 Application is an agency taking a child into care. How the agency decides to do that is a matter of policy. The problem identified here and in KM and KB is that the CFSA doesn’t define a “taking into care”. It defines related terms, but not that one.
[46] If the Minister’s argument is correct, that would give the Minister unfettered freedom to decide when and if it will file an Application, even in circumstances where highly intrusive measures have been taken. That runs contrary to the “spirit and intent” of the legislation and the direction from the Supreme Court in KLW. I reject that interpretation of s.33.
[47] The Minister also argues that by reaching a plan by consensus to place the children with the grandmother, it was trying to meet its statutory obligation to pursue the “least intrusive” measures possible to ensure the children’s safety.
[48] The problem with that argument is that the Minister cannot dress up a “taking into care” as a consensual plan because it suits the need to meet a statutory obligation to use “least intrusive measures”. There are other statutory obligations that must be balanced with that one, including the requirement to bring the matter to court in a timely way under s.39(1).
[49] The Minister makes a number of other arguments. First, the Minister says that the legislature decided in 2017 not to define “taking into care” when it made extensive amendments to the CFSA. No support for that argument was advanced, and without evidence that the issue was discussed by the legislature and a conscious decision was made not to define the term “taking into care”, then that argument is pure speculation. Ironically, the Minister objected to speculation in the Respondent’s submissions, cautioning against considering it with no factual basis.
[50] Secondly, the Minister argues that by raising the issue of a “constructive taking”, the proponent is really taking issue with the Minister’s “decision making and safety planning before the time an application is initiated…” It says that the proper forum for that is a judicial review.
I reject that argument as well. The Minister argues, and I agree, that this is an exercise in statutory interpretation. It’s not a matter of challenging the decision to take the children into care. Rather, the parents are saying that by delaying the filing of an Application after taking the children into care, the Minister failed to meet the requirements of s.39(1) of the CFSA, thus depriving them of statutory protections and the court of jurisdiction to deal with the matter.
ISSUE #2: If there was taking into care, did the Minister meet the legislated timeframe for filing a Child Protection Application?
[51] Under s.39(1) the Minister was obliged to file its Application within five working days of the date of the taking. The latest date this could happen was October 5, 2022 (with September 30th being a holiday).
[52] The Application wasn’t filed until November 14, 2022, so the Minister did not meet the legislated deadline for filing its Application.
ISSUE #3: If the Minister did not file by the legislated deadline, does this Court have jurisdiction to grant an order?
[53] The Minister argues that, even if the Minister failed to meet the legislated deadline, the court has jurisdiction arising from the filing of an Application. The Minister further argues that, if the court declines to accept jurisdiction and dismisses the proceeding, filing a new Application and restarting the process does nothing to advance the children’s best interests. Other than the delay involved, no specific reason why filing a new Application would work against the children’s best interests was advanced.
[54] I don’t accept the argument that, simply by the act of filing an Application, the court automatically has jurisdiction. As RM notes in his submission, failure to meet a statutory deadline can result in the loss of jurisdiction: Family and Children’s Services of Kings County v ED, 1988 CanLii 8747 (NSCA). The Minister’s argument essentially boils down to saying that it controls the process, and that the Court is at its disposal when it sees fit to proceed.
[55] The statute gives the Court its jurisdiction. In addition, if there is a gap in the legislation, I can resort to my parens patriae jurisdiction to fill that gap. The Supreme Court of Canada in B.(D.) v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716 at p. 724 said:
It would seem then that in England the wardship jurisdiction of the court (parens patriae) has not been ousted by the existence of legislation entrusting the care and custody of children to local authorities. It is, however, confined to “gaps” in the legislation and to judicial review.
[56] The Minister argues that, although I have parens patriae jurisdiction, there is no gap in the CFSA to be addressed. The Minister says that the 5 day interim hearing was scheduled within five days of the Application being filed, which gives the court jurisdiction.
[57] This latter point creates a circular argument which I have rejected. In addition, I disagree that there’s no gap in the legislation, because the term “taking into care” is not defined. To the extent I have found that a taking into care occurred on September 27, 2022, I rely both on statutory interpretation and my parens patriae jurisdiction.
[58] As Justice L’Heureux-Dube’ stated in KLW: “The apprehension of children constitutes significant state intrusion into the family.” The fact that a “taking into care” is not defined (nor are factors laid out to determine when it occurs) in the CFSA leaves a significant gap. The fact that there are a number of written decisions on the subject clearly indicates that there are differing views on what constitutes a “taking”.
[59] The best interests of the children in this proceeding are not served by condoning a delay that runs counter to the principles laid out in the CFSA and in particular, its preamble. The goal of the legislation is to reunite families when (and if) the risk to the children can be mitigated.
[60] Reuniting families usually requires the provision of remedial services, which must be offered on a timely basis. In turn, the parents must meaningfully engage in, and benefit from, those services. But that takes time, and with a twelve month time limit, time is at a premium in child protection proceedings.
[61] According to RM’s submissions, the Minister “did not implement or even discuss services with the Respondent parents” before January 30, 2023. On that date, the ICM notes show that the social worker spoke with LC and encouraged her to reconnect with her mental health/addictions physician and to find a therapist with whom she’s comfortable. There’s no evidence of any earlier discussions about services with the parents.
[62] If I accept that I have jurisdiction, then this will file already be at the Protection stage; that’s 3 months into the twelve month maximum time limit. LC has indicated a willingness to participate in services, which is in the children’s best interests because it leaves open the possibility of reuniting the family. However, there’s no evidence that services even have started.
[63] The CFSA sets out strict time limits because a child’s sense of time is unique. The Minister argues that to decline jurisdiction and require the proceedings to be restarted simply creates delay and would offend the child’s sense of time. However, as RM notes: “The Minister had no concern about delay or the children’s “unique sense of time” when it dragged its heels to get this matter into Court.” The ICM notes confirm that at the September 29, 2022 RMC, the Minister noted that “Court would start the timelines.”
[64] Circumventing the timelines by allowing the Minister to delay bringing an Application does not serve the children’s interests, it only serves to sidestep the court’s oversight powers under the legislation. In this case, it will also serve to reduce the amount of time available for the parents to access services and possibly alleviate the risk to the children.
[65] The Minister says that in KB Justice Christianson “noted that hers was not a “parents rights” decision…. however, the failure to consider how the least intrusive alternative in the form of a safety plan serves the children suggests that the children’s best interests were not at the forefront of the decision in KB.” I find that argument problematic.
[66] Although the “best interests of the child” test is paramount under the CFSA, parents (and families) have basic rights under the legislation that cannot be ignored. The goal is to find a balance that respects that. The CFSA sets tight timelines for all steps the Minister must take when removing children from the care of their parents in an attempt to meet that goal.
[67] One last point raised by the Minister merits comment. It argues that the proceeding is now too far into the timeline to dismiss for lack of jurisdiction. However, this proceeding is still at the interim stage and no Protection finding has been made. Counsel for the Minister properly conceded that point in submissions.
[68] Having decided that I am without jurisdiction to issue an order under the CFSA, the Application is dismissed and the interim orders previously granted are vacated.
[69] The Minister is directed to file the appropriate order.
MacLeod-Archer, J.