“In Children’s Aid Society of Toronto v. G.P., 2019 ONCJ 365, Zisman J. lays out the following applicable legal principles with respect to a finding of need of protection at paras. 71-75:
The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm.
The risk of harm must be real and likely and not speculative.
Harm caused by neglect or error in judgment can come within a finding of risk of physical harm.
With respect to the timing of the protection finding, I adopt the analysis of Justice Czutrin in the case of Children’s Aid Society of Hamilton-Wentworth v. R. (K.) (footnote omitted), wherein he states:
the court should be free to consider whether the child is in need of protection at the commencement of the proceeding or at the hearing date, or for that matter some other date depending on the circumstances. There cannot be an absolute rule as to the relevant date.
In adopting this “flexible approach” Justice Carolyn Horkins recently explained in the case on [sic] Children’s Aid Society of Toronto v. RM (footnote omitted):
The type of risk that can lead to a child protection order is set out in s. 74(2) of the CYFSA. It was also defined in the predecessor Act. It is obvious from the legislation that “risk” can be caused by a variety of different circumstances and conduct.
In many protections matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.
The finding that a child is in need of protection is an essential stage of a child protection proceeding, and if the court finds that the child is not in need of protection that is the end of the matter.”