[Indexed as: R. (J.) v. Children's Aid Society of Hamilton]
J.R. (Applicant) and CHILDREN'S AID SOCIETY OF HAMILTON, D.D., N.C. and E.M. (Respondents)
Ontario Superior Court of Justice (Divisional Court)
Lofchik J.
Heard: June 19, 2003
Judgment: June 25, 2003
Docket: Hamilton 03-112 DV
Jerry Chaimovitz for Applicant
Michael G. Weissenborn for Respondent, E.M.
David J. Feliciant for Respondent, Children's Aid Society of Hamilton
Lofchik J.:
The applicant is seeking to review the decision of the Honourable Mr. Justice Steinberg [(May 28, 2003), Steinberg J. (Ont. S.C.J.)1, made in the Ontario Superior Court of Justice, Family Court, at Hamilton, Ontario on May 28, 2003 wherein he ordered that the child Ja. A. F. R., remain in the care of the Children's Aid Society until the resumption of a child protection hearing on June 16, 2003 (further adjourned to June 23, 2003).
2 The Court heard evidence with respect to the issue as to whether the child Ja. R. was a child in need of protection on May 2, 13, 14, 15, 19 and 20, 2003. Submissions were made on the issue by all counsel on May 20, 2003.
3 Mr. Justice Steinberg then adjourned the matter to May 23, 2003 for Judgment.
4 On May 23, 2003, Steinberg J. noted that the Society had not proceeded under the correct subsection of s. 37(2)(b) of the Child and Family Services Act and that he could not find the child, Ja. R., "a child in need of protection" under the sections which had been referred to by the Society. He invited counsel for the Society to amend the application. In the time allowed, counsel was not clear as to what Steinberg J. was referring to and did not take up the invitation to amend. Steinberg J. then adjourned the matter to June 16, 2003 to continue with the second phase of the child protection hearing, indicating that the Society should be returning the child.
5 On May 26, 2003, the Family Court Office contacted all counsel and arranged a conference call to take place on May 28, 2003 at 8:50 a.m. At the conference call, Steinberg J. indicated: (a) He had not dismissed the Society's application with respect to Ja. R. on May 23, 2003; (b) He had, during the trial, commented that the section of the Child and Family Services Act under which the Society was proceeding was not the applicable section under the circumstances; (c) Counsel for the Society had, despite the Court's invitation, declined to amend the Application; (d) The Court became concerned when the Society volunteered to return the child; (e) No decision had been made about the child, Ja., on the merits and the court did not believe that her case should be decided on a technicality because the Society had proceeded under the wrong subsection; (f) The Court had parents patriae jurisdiction to protect the child; (g) The temporary care order was to remain in effect and the child, Ja., should remain in care until the resumption date of June 16, 2003.
6 It is this latter Order the applicant seeks to review.
7 The proceedings from which this Application arises were conducted in Family Court, a branch of the Superior Court of Justice, before the Honourable Mr. Justice Steinberg, a Superior Court judge. (See Courts of Justice Act, R.S.O. 1990 S.C.C. 43 s. 21.1(1) and s. 21.2)
8 The Superior Court of Justice is a superior court of record having all the jurisdiction, power and authority historically exercised by the Courts of Common Law and Equity in England and Ontario. (See Courts of Justice Act, s. 11).
JUDICIAL REVIEW
9 Judicial review is only available to review decisions of tribunals and Orders of an inferior court, in circumstances where such Orders meet the definition of "statutory power of decision". (see Judicial Review Procedures Act, R.S.O. 1990, c. J.1, s. 1 and s. 2.)
10 At common law, certiorari does not lie against a decision of a Superior Court Judge. Kourtessis v. Minister of National Revenue, [1993] 2 S.C.R. 53 (S.C.C.) (para. 53).
11 Counsel for the applicant attempted to argue that by virtue of s. 21.12(1) of the Courts of Justice Act, a justice presiding over the Family Court in child protection proceedings shall be deemed a judge of the Ontario Court of Justice. S. 21.12(1) provides as follows: A judge presiding over the Family Court shall be deemed to be a judge of the Ontario Court of Justice for the purpose of prosecutions under Part Ill (Child Protection) and Part VII (Adoption) of the Child and Family Services Act, the Children's Law Reform Act, the Family Law Act, and the Family Responsibility and Support Arrears Enforcement Act 1996.
12 It was argued that the word "prosecutions" could apply in the civil context as in "prosecuting an action" i.e. taking every necessary step from commencement to its final determination.
13 That argument is precluded by the wording of s. 21.8(1) of the Courts of Justice Act, which reads as follows: In the parts of Ontario where the Family Court has jurisdiction, proceedings referred to in the Schedule to this section, except appeals and prosecutions, shall be commenced, heard and determined in the Family Court. The Schedule referred to stipulates Child and Family Services Act matters under Part III, VI and VII of that Act, as being matters to be commenced, heard and determined in the Family Court. Given that provision, the word "prosecutions" as used in s. 21.12(1) must be used in the criminal or quasi-criminal sense as the Parts referred to do provide for proceedings by way of criminal or quasi-criminal prosecutions to be undertaken. The word cannot, on a reasonable interpretation, be taken to refer to any other steps taken pursuant to those parts of the Act which must, by virtue of s. 21.8(1) and the Schedule referred to therein, be commenced, heard and determined in Family Court.
14 I find that, in making the Order complained of, Steinberg J. was sitting in the capacity of a judge of the Family Court, that is, a Superior Court Judge. Therefore the remedy of judicial review by way of certiorari is not available to the applicants. The application is therefore dismissed.
Application dismissed.