Child protection worker's warrantless entry into home unlawful: Ontario Court of Appeal

The Ontario Court of Appeal has ruled that a child protection worker’s warrantless entry into a home was unlawful because there was no proof of a subjective belief that there would be a substantial risk to the child.

In Land v. Dryden Police Services Board, 2023 ONCA 207, The Dryden police officers responded to information that Stephanie Henry appeared to be under the influence of alcohol when she picked up her seven-year-old daughter from school. When the police officers went to Henry's home to check on the child, Henry and her partner, Jonathan Land, refused to allow the officers to enter. The officers then contacted the local children's aid society, Anishinaabe Abinoojii Family Services.

Society worker Danielle Gardner arrived at the scene. She requested the police officers to enter the home with her because she "had concerns for her safety and the safety of the child." However, when the officers attempted to accompany Gardner, Land tried to close the door, so one of the officers put his foot in the door and forced it open.

Land and Henry filed a suit for damages, claiming that Gardner and the police officers' entry into their home was unlawful. The motion judge concluded no genuine issue required a trial and dismissed the action against all respondents. Land and Henry elevated the matter to the Ontario Court of Appeal, which ultimately ruled in their favour. 

The motion judge found that Land invited Gardner into the home and that Gardner was entitled to enter the home under s. 40 of the Child and Family Services Act (CFSA) without a warrant, and she was also entitled under that section to request that the police assist her. Land and Henry disputed these findings on appeal.

Authority to enter without a warrant

The appeal court noted that the CFSA authorizes a child protection worker to enter a place without a warrant, use force if needed, search for and take a child, and request help from the police if necessary. However, the court emphasized two conditions that must first be satisfied—the child protection worker must have believed on "reasonable and probable grounds that a child is in need of protection and that there would be a substantial risk to the child's health or safety during the time necessary to obtain a warrant."

The motion judge found that Gardner had a subjective belief that the child "may have been" in need of protection on the day of the incident. However, the appeal court said that Gardner gave no specific evidence addressing whether she believed that the child met the statutory criterion of being a child in need of protection when she entered the residence. Her only evidence for that statutory criterion was that no adult caregiver was present in the home after the police arrested the appellants. Consequently, the appeal court found that the trial judge's finding on this criterion was not based on a proper evidentiary foundation. 

No proof of subjective belief of substantial risk

The appeal court stressed that to act without a warrant, a child protection worker must believe on reasonable and probable grounds that a child "is in need of protection." The motion judge described Gardner's state of mind as believing that the child "may be in need of protection."

The appeal court noted that the motion judge made no finding concerning the requirement that the child protection worker must believe on reasonable and probable grounds that there would be a substantial risk to the child's health or safety during the time necessary to obtain a warrant. In addition, Gardner did not give any evidence that she subjectively believed there would be a substantial risk to the child's health or safety during the time necessary to obtain a warrant.

Accordingly, the court concluded that the motion judge's finding that Gardner's entry was lawful under the CFSA could not stand. The court emphasized that the extraordinary powers under the CFSA are exceptional and must be strictly followed and enforced. The court set aside the summary judgment dismissing the claims for negligence, false arrest, false imprisonment, assault and battery, trespass, and invasion of privacy and the claims under s. 7 and 9 of the Charter, which must proceed to trial.