“This is set out in s.94(2) CYFSA. It is a two part test. The society has the onus to meet the test based on evidence. The evidence, at this stage, is whatever the court considers credible and trustworthy in the circumstances. The test is not terribly onerous as all it requires is reasonable grounds to exist. Moreover, the standard of proof is the balance of probabilities. The court is given four options, one of which it must choose when a case is adjourned. It is almost invariably adjourned as no one is ever ready for a hearing to determine if a child is in need of protection. The four choices are set out in section 94(2):
94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) 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;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.
The actual wording of the test is set out in s.94(4)
S.94 (4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
Clauses (a) and (b) are non-removal orders. They do not remove the children from whoever had charge before the society’s intervention. Clauses (c) and (d) are removal orders and they do remove the children from the person who had charge of them. Where children are apprehended, this represents the society’s intervention. They are clearly removed from their former caregiver and custodian.
The first step in a temporary care and custody determination is always to decide who had charge of the children. In this case it was their mother.
The phrasing of the first branch of the test in s.94(4) makes it clear that all that is required of a society is to satisfy the court of the existence of “reasonable grounds” to believe that the child is likely to suffer harm. What is unsaid but understood is that the risk of the likelihood of such harm will exist if the child remains with the person who has charge. The second branch of the test is again the existence of “reasonable grounds” to believe that the child cannot be adequately protected by an order that returns the child to the person who had charge before the child was removed.
In terms of the options available to the court, clause (c) of s.94(2), to which I refer as the placement with ‘kin’ clause, is supported by s.94 (5) CYFSA:
S.94 (5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community
Section 94(5) not only supports clause (c) of s. 94(2), it prohibits the court from making an order placing the child in the temporary care and custody of a society until it has considered whether it is in the child’s best interests to place the child with a relative of the child or a member of the child’s extended family or community. Persons who fall into these categories I consider to be ‘kin’ even though this word is nowhere found in the CYFSA statute. It is simply for convenience and ease of reference. This imposes on the court, where it decides that it cannot make a non-removal order, an obligation to look at kin of the child as persons to whom it may entrust temporary care and custody. This section 94(5) makes it crystal clear to this court that an order for temporary care and custody to a society is the last resort, to be made only if an order placing with kin is not appropriate. Moreover, identification of kin as candidates for temporary care and custody, while preferable, is not required. The court has to consider all of the evidence and, I suggest, might even be tasked, where information in the evidence is scarce or non-existent, with asking who the child’s relatives and extended family or community members are, and whether any may be interested in accepting temporary care and custody.
The CYFSA has implemented a number of changes some of which have been emphasized in the statute. Among these are canvassing the views and wishes of a child where decisions are being made or services are being provided to that child. In particular, in the context of temporary care and custody decisions, the court is not only mandated to consider, but in the case of views and wishes of a child, is prohibited from making a temporary care and custody order until it takes such views and wishes into consideration, if they are ascertainable, and until it gives them “due weight in accordance with the child’s age and maturity”.”
Nogdawindamin Family and Community Services v. S.S., 2019 ONCJ 732 (CanLII) at 9-16