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Child protection agencies have a fairly light onus on them when it comes to analyzing whether or not they were justified in effecting an apprehension of children from their parents’ care. (But at least there is some degree of onus on them.) Despite the fairly easy test that they must pass, there are still some occasions where the courts will step in and sanction a children’s aid society. Cree Nation and Family Caring Agency v. L.(R.) is thankfully one of those cases.

You can’t just willy nilly seize children where there is no reasonable basis in fact and law. In Cree Nation, an exemplary father applied to foster his grandchild. The mandatory police record check revealed that 21 years ago, the father had been convicted of sexual interference with a minor. The agency clearly panicked and without even interviewing the father, they immediately apprehended his children.

Had the agency taken the time to interview the father, they would have learned that he did have relations with a minor but he did not know that she was underage. The father had received a sentence of 150 community service hours, one day of jail, and two years of supervised probation.

The agency had jumped to the wrong conclusions when it received a report from some governmental agency stating that based on the criminal record check the father was “high risk”. While that report recommended that the agency discuss the information with the father, the agency did no such thing. It simply went out and snatched the kids into care.

The judge made a specific factual finding: “I find on the evidence that the father is a dedicated and devoted father who has done everything possible to help his children with the challenges of being high needs children.”

Apprehension of children should not be the first knee jerk reaction of child protection agencies. This case was decided in Manitoba where the statute states: “Families and children have the right to the least interference with their affairs to the extent compatible with the best interests of children and the responsibilities of society.” As noted in the Cree Nation decision, the Supreme Court of Canada has commented on the Manitoba child protection statute as follows:

When read as a whole, therefore, the Act provides for apprehension as a measure of last resort in cases where child protection authorities have reasonable and probable grounds to believe that the child is at risk of serious harm. …

I believe that this test could also apply in Ontario. In Ontario, the Act states that one of the purposes of the Act is: “To recognize the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.”

The judge was quite clear with respect to the obligation to conduct a proper investigation, something that the agency entirely failed to do in this case:

… Cree Nation must assess the information received, objectively as well as subjectively, to determine if the information constitutes sufficient grounds to apprehend a child.

42 Upon receiving the high risk assessment, Cree Nation had a duty to investigate to determine what the circumstances were respecting the charges and how the children were doing in the care of their father. They had a duty to investigate the circumstances to determine whether they had reasonable and probable grounds to believe that these children were in need of protection and that the children’s lives, health or emotional well-being were endangered by residing with their father.

As in Ontario, costs are awarded in Manitoba child welfare cases “only in exceptional circumstances”. Cree Nation was ordered to pay costs.

One victory for good parents!

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