Child Apprehension Orders and a Guardian’s Right to Respond

In a previous blog, we had discussed the unfortunate circumstances involving the apprehension of children by Alberta’s Children’s Services and how the legal rules set out in the governing law not only permit for the child welfare authorities to obtain an order for the apprehension of children without any notice to the parents but also how the Courts and the child welfare authorities have interpreted those same laws as preventing the parents of apprehended children from reviewing the apprehension of their children for up to 52 days. 

As child welfare apprehensions continue to take place throughout the COVID-19 pandemic, an update on our previous blog seems necessary and timely, given that the position of the Courts and the child welfare authorities has not changed in respect of their views regarding the right of parents to review apprehensions of their children.

In Alberta, apprehensions of children are governed by the Child Youth & Family Enhancement Act (the “CYFEA”).  Under section 19 of this legislation, if Alberta’s Children’s Services have reasonable and probable grounds to believe that a child is in need of such intervention, they are permitted to apply to the Courts for the apprehension of the child.  However, unlike the typical process in most Court applications, under section 19 of the CYFEA, Children’s Services has the right to have their application heard without first providing notice of the application to the guardian(s) (most often the parents) of the child.

Applications without notice to a party, such as those permitted under section 19 of the CYFEA, are often referred to as ex parte applications; such applications are not unheard of and do occur in any number of areas of law.  However, the CYFEA provides for a specific right for Children’s Services to proceed with an application for the apprehension of a child, without notice to the parents or guardians of the child.

It is a presumption that this specific reference to Children’s Services having the right to proceed ex parte is as a result of the increased possibility of parents absconding with their children should they receive notice that Children’s Services intends to bring an application to apprehend the children. However, notwithstanding the heightened concern for parents hiding or running away with their children, the question then arises as to whether or not this provision permits Children’s Services to apply for an apprehension of children without notice to the parents, in every case – even where there is no reasonable concern that the parents might flee with their children should they be provided notice.

Alberta Courts Question Default Use of Ex Parte Applications

While experience in the practice of child welfare demonstrates that Children’s Services and the Provincial Court views proceeding ex parte as the default action when applying for apprehension orders, in the case of C.J.P v. Alberta, 2007 ABQB 659, the Court of Queen’s Bench Justice S.D. Hillier, while discussing the right of the Guardian to respond to an ex parte Order already granted, nonetheless remarked upon the circumstances in which such Order should be sought on an ex parte basis, stating, at para.19(a):

First, we are dealing with legislation focused on the best interests of the child. It is certainly vital that an Apprehension Order be available as an expedited remedy, whether obtained from a judge or a justice of the peace. In fact s. 19 contemplates that in exceptional circumstances apprehension may be achieved by unilateral action of the Director … On the facts here that concern between the parties remains and the guardian who has had care and custody of this child for half of its life has not yet been given a chance to provide input to the Court as to the best interests of the child. (emphasis added)

Further, in the case of C.R. v. Alberta (Child, Youth and Family Enhancement Act, Director), 2015 ABQB 198, the Court of Queen’s Bench Justice Eidsvik considered whether the ex parte application for apprehension that had been brought by the Director of Children’s Services was properly brought. At issue was whether the Director provided full and balanced evidence on the ex parte application, but the Court also specifically mentioned that ex parte applications are only merited in certain circumstances, stating:

I agree with the Appellants that the Director had no appropriate basis to bring the apprehension application, he brought the application ex parte improperly, and he failed in his duty to disclose all of the facts to the Court and give a fair and complete review of the situation.

I am cognisant that the Director has statutory authority to bring an ex parte application when it is merited. It is understandable that this would be necessary in certain circumstances.

The comments in these cases appear to echo the sentiments of the Court of Appeal of Alberta in the case of Alexander v. Cherry, 2007 ABCA 128, wherein the Court discussed when it is appropriate to proceed on an ex parte basis, stating:

…ex parte proceedings should rarely, if ever, take place and then so only if the court can be satisfied as to the serious mischief that might be entailed. Where counsel proceeds on that basis in any event, and the court is prepared to consider the application, counsel does so with a significant burden, namely to make full, fair and candid disclosure of all non-confidential, non-privileged material facts, including those which are adverse to his position.

The Reasonable Opportunity to Respond Was Lost with the CYFEA

Because of the potential for mischief, and the harm that can arise from an Order that is granted solely on the basis of a single party’s evidence, the Court of Appeal has also held that any such ex parte Order must ensure that the other party, to whom notice was not provided, has a reasonable opportunity to respond to the Order before the status quo is permanently altered or seriously prejudiced. Plainly speaking, the Court of Appeal has recognized and directed that it is critical that ex parte Orders be reviewed, giving the other party the right to present evidence or challenge the Order.

Prior to the CYFEA, a guardian’s right to challenge and review ex parte apprehension Orders was guaranteed in written law under that older piece of legislation.  Under the old Child Welfare Act, Children’s Services could proceed with an application for the apprehension of children on an ex parte basis; however, this Act also permitted a guardian of a child who had been apprehended to serve Child and Family Services with a demand notice, forcing an almost immediate review of the apprehension Order. This balance between the rights of Child and Family Services to proceed ex parte and the rights of a guardian to force a review of any orders arising from such an application, were unfortunately lost when the CYFEA replaced the Child Welfare Act.  Under the CYFEA, a guardian’s right to serve a demand notice on Child and Family Services, was not carried over into this new legislation.  As a result, there is no longer a mechanism, within the child welfare legislation that allows a child’s guardian to force a review of an apprehension order granted on an ex parte basis.

Guardians and Parents Still Have Options to Bring a Review of Apprehension Orders

Nonetheless, given the Court of Appeal’s concern for the mischief that might arise from  ex parte applications, and the risk of a status quo being permanently altered, we are of the opinion that the lack of legislative mechanism by which to challenge ex parte apprehension Orders does not preclude guardians from nonetheless being able to bring an review of these Orders.

The difficulty, however, arises from two compounding issues: Firstly, the Director of Children’s Services appears to consistently take the position that the reference in the CYFEA to bringing an application for apprehension ex parte is permission to proceed ex parte in all circumstances, even if there are no exceptional circumstances or concern that the guardians of the child(ren) may abscond or act in a way that would put the child(ren) at risk were they to be given notice.  As a result, in cases where proceeding ex parte would otherwise not be permitted under different areas of law, the Director still proceeds ex parte and effectively prevents the guardians from responding to the apprehension application and challenging the Director’s evidence.  This is a denial of natural justice.

Secondly, while the caselaw cited above speaks to the absolute necessity of a respondent in any ex parte matter to have the right of response in an urgent and timely manner, the reality of the CYFEA process is that the Provincial Court has consistently taken the position that on the first return date of the Apprehension Order, the guardians are not permitted to address or challenge the ex parte Order.  Judges at the Provincial Court have variously cited that they either do not have the jurisdiction to review such Orders or that the Court schedule cannot accommodate the opportunity to hear full and balanced evidence to determine whether the child should remain out of its parents’ care. The default position by the Court is to continue the apprehension and set the matter down for a hearing at some date, usually much later in time. 

This first return date after the apprehension is typically up to 10 days from the date of the apprehension and is set down for the purposes of setting a date for the parties to address whether the child should remain in care.  The CYFEA permits the parties to set such a date for a hearing on the Apprehension some 42 days after the return date.  The result of this is that the guardians of a child may not be able to respond to or challenge the initial apprehension for 52 days after the apprehension occurred. This means that the child(ren) may remain outside of their guardian(s) care for close to eight weeks without the initial apprehension ever being tested or reviewed by a Court as to whether it was appropriately granted.  Because the dates granted by the Court are so often dictated not by the exigencies of the parties or the child, but the ability of the Court system to accommodate a hearing, it is not uncommon that this final hearing pushes the outside limit of the 42-day timeline. Further, it is also relevant that at this hearing (called an Initial Custody Hearing) the Court is not considering whether or not the original apprehension order should have been granted – rather it is a hearing to determine whether or not the child should remain in the custody of the Director as at the time of the hearing.

While this procedure and process that continues to be maintained by the Provincial Court and the Child Welfare authorities appears to be entirely contradictory to the comments of the Court of Appeal in Alexander v. Cherry, and in absolute conflict with the rules of Natural Justice, equity, and the best interests of the child, it also appears that such a position of the Courts and the authorities runs afoul of the Canadian Charter of Rights and Freedoms. It is long settled law that a failure to promptly review the grounds upon which a child apprehension has occurred is a violation of the principles of fundamental justice guaranteed by section 7 of the Canadian Charter of Rights and Freedoms.  The Supreme Court Case of KLW v. Winnipeg Child and Family Services, [2000] 2 SCR 519 held that section 7 of the Charter is engaged when a child is apprehended by the state, but that such apprehension does not offend the principles of fundamental justice, insofar as there is a “fair and prompt” post-apprehension hearing.

In respect of what constitutes a “fair and prompt post-apprehension hearing”, the Supreme Court was clear that it was not prepared to provide precise timelines and standards for when post-apprehension hearings should be heard. However, while stating this, the Supreme Court did clarify that a two-week delay between the removal of a child and the post-apprehension hearing would “seem to lie at the outside limit of what is constitutionally acceptable“.

While the case of KLW was addressing apprehensions of children that took place without an Order of the Court (whether ex parte or otherwise), the reality is that whether Children’s Services apprehends without an Order or apprehends with an ex parte Order, in either case, the parents of the child are completely cut out of the process and have no timely opportunity to give their evidence or challenge the decision of the Court. A delay in a review, regardless of whether such an apprehension occurred without an Order, in in the presence of an ex parte order will still offend Section 7 of the Charter.  As the Supreme Court clarified in respect of the difference between an apprehension without an Order and an apprehension in the face of an ex parte Order:

In ex parte proceedings, the court relies on affidavit evidence prepared by a child protection worker in determining whether a child should be apprehended.  While a review of this information by the court will provide some protection against unjustified apprehensions, courts will tend to defer to the agency’s assessment of the situation given the highly particularized nature of child protection proceedings and the highly compelling purpose for state action in this context.  This deference will be all the more warranted when the child protection worker’s assessment has already been subject to an internal review process within the agency. Thus, an ex parte authorization requirement provides only a limited enhancement of the fairness of the apprehension process. Neither the parents nor the child have any input into the decision.

In P.E. v. The Director of Child and Family Services, 2010 NUCJ 24 a case out of Nunavut, subsequent to KLW, the Court reviewed the laws across the provinces in Canada as they related to the availability of screening or reviewing the grounds used for child apprehensions.  In that case, it was determined that the failure to review the ex parte apprehension of children, within a reasonable timeframe, was a violation of the principles of fundamental justice as enshrined in Section 7 of the Charter.  Similar to the case of KLW this case out of Nunavut addressed those circumstances where apprehension occurred without a Court granting such an Order, however, in considering whether other provinces permitted for reviews of child apprehensions undertaken without an Order, the Court misinterpreted the legislation of Alberta, stating that such reviews occur within 10 days of the apprehension occurring. 

In so doing, the Court in Nunavut referenced section 21(1) of the CYFEA. However, section 21(1) CYFEA does not grant a right of review of apprehensions within 10 days from the date of apprehension, regardless of whether such apprehension was undertaken without Court Order or pursuant to an ex parte order. Rather, as stated above, our Courts in Alberta have interpreted section 21(1) of the CYFEA to require the Director to return to Court within that 10 day period to merely set a date for a hearing as to whether the child should remain in custody – based on the circumstances as at the time the hearing is held, which as set out above, could be some 42 days later.

This mistake of the Court in Nunavut is highly relevant because the decision in the case of P.E. held that portions of the Nunavut legislation were constitutionally invalid due to the failure of the law to provide for a mechanism for timely review of child apprehensions undertaken without an Order of the Court.  What is clear is that the CYFEA does not have any mechanism to challenge any apprehension that is undertaken without an Order of the Court, which, following the decision of P.E. would suggest that it is unconstitutional in that respect.  Additionally, it does not have any protections for children or parents of children who are apprehended on an ex parte basis as there is no right of review of any such apprehension set out in the CYFEA – and while the Director of Children Services has often taken the position that the Initial Custody Hearing is the opportunity for the parents and the children to challenge the apprehension, as stated above, this is not only incorrect as it is actually a hearing that takes place after the Court has already ordered interim custody after the apprehension and only considers whether the Director should maintain ongoing custody of the child.  In that sense, there is never any opportunity for the parents, the children, or the Court to review whether or not, on a full hearing of evidence, the child should have been apprehended. 

Adding to that the fact that such a hearing could occur some 52 days after the apprehension, thereby maintaining the separation between parents and children for eight weeks on the sole basis of one-sided evidence of the Director, and the reality is that even in cases whereby children are apprehended pursuant to an ex parte order of the Court it is highly likely that such a legislative scheme greatly offends the Charter rights of both parents and children.

It is the opinion of Mincher Koeman that this is not how the system was designed to work.  Should the Director’s and the Provincial Courts’ view of the apprehension procedure be accepted, this would suggest that respondents in civil matters have greater certainty and protection and the right of response than do parents of children who have been taken out of their care and placed in a foster home with individuals that the children do not know. As the entire founding principle of the CYFEA is the best interests of the children, it has to be asked:  how is the process, as deemed by the Director, in the best interests of children, when they are potentially left to languish outside of their parents’ care without any chance for a review of such a decision for eight weeks when litigants in property matters have greater rights to review ex parte orders?

The lawyers at Mincher Koeman believe that the child welfare system only works when it protects children at all stages. This does not mean free reign for child welfare authorities to intervene with families without oversight – rather, it requires that there is a balance between the ability of child welfare authorities to act urgently and without the need to provide notice to parents or guardians if such notice would place children at risk, and the rights of children and parents to also be heard and present evidence in a timely manner to ensure that, once a child is secure and apprehended, the full evidence is presented to determine whether or not that apprehension should have occurred or be terminated. 

Should you have any involvement with child welfare and require assistance to protect your and your children’s rights, the lawyers at Mincher Koeman have years of experience in helping many families and are able to help you as well. Please contact our office to discuss your options by calling us at 403-910-3000 or by contacting us online.