“Section 79(4) of the CYFSA stipulates as follows:
Child 12 or older
(4) A child 12 or older who is the subject of a proceeding under this Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.
Section 79(6) clarifies that a child who receives notice of a proceeding is entitled to participate as if the child were a party.
Despite the children in this matter being 12 and 14 years old, respectively, they had not been served with the society’s application or the society’s motion for temporary care and custody. Nor is the society requesting an order relieving against that obligation on the basis that being present at the hearing would cause either child emotional harm.
A stated purpose of the CYFSA is to recognize that services to children and young persons should be provided in a manner that includes the participation of a child or young person, where appropriate: s. 1(2), para. 3.vi. Sections 79(4) and (6) serve an important function and recognize that older children and young persons have both the ability and right to meaningfully participate in protection proceedings with significant and life-altering impacts for them.
When a society intervenes to remove a child to a place of safety, it is under significant and unenviable pressure to move quickly to both meet the practical needs of the children and to comply with its duty to bring the matter before the court as soon as practicable, but within five days. That said, the statutory requirement to notify older children of the proceeding is not optional and cannot fall victim to these exigencies. It must be respected and complied with.
Where the society is of the view that notice to a child 12 or older is inappropriate and seeks relief against it, then that request should be brought to the court’s attention as soon as possible, and ideally before the first hearing date. It is not for me to prescribe a universal process for the society to follow, and local considerations may well have an impact, but I would think that the most appropriate and efficient way to do so is to file an urgent, without notice motion, to the attention of the judge who is scheduled to preside at the initial temporary care and custody hearing. Alternatively, guidance could be sought from the court directly at the same time the society is seeking dates for the hearing.
I appreciate that in the early days of a child protection application, the society’s investigation is ongoing, and the factual landscape is often in flux. I recognize that at times, the society may have no alternative but to make an oral motion before the court at the time of the hearing, based on the most recently available facts.
Here, as noted, the society is not making such a request. Notice to the children is required. This temporary care and custody hearing shall be adjourned to December 5, 2024, at 9:00 am in order that the society may serve the children with notice of the proceeding and facilitate their attendance, should they wish, at the temporary care and custody hearing. The participants may attend virtually or in person at that time.”