“Clause 51(2)(a) of the Child and Family Services Act, R.S.O. 1990, c. c-11, as amended (“the Act”), provides (my emphasis):
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(2) Custody during adjournment.— Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child, | ||
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remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; |
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I begin by noting that the question of who had “charge” of the child is not determined by which person had actual physical or de factocustody of the child at the time of apprehension. In Children’s Aid Society of Algoma v. Teena G. et al.,2002 CanLII 52569 (ON CJ), 2002 CanLII 52569, 125 A.C.W.S. (3d) 1020, [2002] O.J. No. 5483, 2002 CarswellOnt 5476 (Ont. C.J.), Justice John Kukurin considered the meaning of “charge of the child”, and stated at paragraph [15] (my emphasis):
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[15] . . . “Charge” has connotation of authority and responsibility. “Charge” of a child suggests some established relationship, not something transient or temporary. |
See also Children’s Aid Society of Ottawa v. H.C. and C.C. (No. 2)(2003), 2003 CanLII 38754 (ON SC), 2003 CanLII 38754, 127 A.C.W.S. (3d) 1159, 17 O.F.L.R. 152, [2003] O.J. No. 5309, 2003 CarswellOnt 5286 (Ont. Fam. Ct.), wherein Justice Jennifer A. Blishen decided that a one-week visit with the mother, where the child had previously lived with the father for two months, was not sufficient to give the mother sole “charge” of the child at the time of the society’s intervention.”
Children’s Aid Society of Toronto v. A.(S.),2008 ONCJ 348 (CanLII) at 7 & 12