COURT FILE NO.: 05-DV-1161

DATE: 2005-11-29

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: The Children’s Aid Society of Ottawa v. C.S. and J.S.

BEFORE: Platana, McLean and Heeney JJ.

COUNSEL: Tracy Engelking and Judith Hupé, for the Applicant (“Society”)

Shane H. Brady and David M. Gnam, for the Respondents (“Parents”)

HEARD: November 28, 2005 at Ottawa

ENDORSEMENT

[1] The Parents seek leave to appeal the interlocutory order of Linhares de Sousa J. dated October 23, 2005, which was rendered pursuant to s. 51(2) of the Child and Family Services Act (“CFSA”). In that decision, she granted temporary care and custody of the child J.S., born prematurely on […], 2005, to the Society. The purpose of the order was to facilitate blood transfusions to the child, a procedure which the Parents refused to consent to, based on their religious beliefs.

[2] Appeals of this kind are governed by Rule 38 of the Family Law Rules. That rule directs that Rules 61, 62 and 63 of the Rules of Civil Procedure apply to this appeal. Rule 62.02(4) sets out the grounds upon which leave may be granted.

[3] The Parents rely only upon the second ground for leave, as set out in Rule 62.02(4)(b), which provides that leave shall not be granted unless:

There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[4] The first issue is whether there is good reason to doubt the correctness of the decision.

[5] The Parents argue that they were denied procedural fairness in the hearing before the motions judge, resulting in a denial of their s. 7 rights under the Charter of Rights and Freedoms. The Supreme Court of Canada has held, in B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, that parental decision-making must receive the protection of the Charter, and that state interference is permitted only when there is a procedure that meets the demands of fundamental justice.

[6] By way of background, the child was being cared for in a neonatal unit by a neonatologist, Dr. Joann Harrold. During the evening of October 23, 2005, she contacted the Parents and advised that the child should receive a blood transfusion. This resulted from an infection that the child had contracted that lowered the level of blood platelets in the child’s blood. The Parents refused to consent to this procedure, because they are Jehovah’s Witnesses.

[7] Dr. Harrold alerted the Society, as she is required to do under s. 72(1)(5) of the CFSA. Arrangements were made for a hearing before Linhares de Sousa J. at 11:30 that evening. The hearing was conducted by teleconference, with the parents in separate rooms. The proceedings were recorded by a court reporter. The Parents did not have counsel, but did have the assistance of Alain Lamer, who is on the hospital liason committee that regularly deals with issues of this nature. Dr. Harrold gave evidence, and was cross-examined by Mr. Lamer as well as by the father of the child. The mother, J.S., listened on the telephone, but did not actively participate because she does not understand English. The father does speak and understand conversational English, although he has difficulty with technical words or with rapid speech.

[8] Dr. Harrold’s evidence was that, due to the low level of platelets, the child was at risk of spontaneous bleeding into the brain and lungs. Her opinion was that a blood transfusion would prevent the child from suffering that harm. The Parents refused to consent to this treatment being administered.

[9] Based on that evidence, the motions judge ordered that J.S. be placed in the temporary care and custody of the Society, so that the Society could consent to this treatment on the child’s behalf.

[10] The Parents argue that they were denied procedural fairness in that they received very short notice of the proceedings, they did not have an opportunity to be represented by counsel, and the proceedings were conducted in a language that was not understood by the mother. In sum, they allege that they were denied the opportunity to effectively participate in the proceedings.

[11] The Supreme Court in B.(R.) did hold that procedural fairness must be observed in proceedings of this nature, but qualified that requirement in the following passage, at para. 92:

… the procedural requirements of the principles of fundamental justice can be attenuated when urgent and unusual circumstances require expedited court action.

[12] The Society could have moved ex parte for this relief, but chose instead to give notice to the Parents. There was an adversarial process before a judge. While the Parents were not represented by counsel, they did have the assistance of an individual who was clearly knowledgeable about the issues. The Parents were asked by the motions judge if they wished to present any other evidence for consideration. While the mother was unable to participate in the proceedings due to a language barrier, the transcript reflects that the father was able to fully participate in the proceedings and put their joint position before the court in an understandable fashion.

[13] We are satisfied that the Parents received a fair hearing in accordance with the principles of fundamental justice, attenuated to the urgent circumstances that presented themselves to the motions judge. On the evidence before her, expedited court action was required. Accordingly, there is no reason to doubt the correctness of her decision on this ground.

[14] The Parents also argued that there is reason to doubt the correctness of the decision in that the motions judge failed to consider a remedy under the Health Care Consent Act, 1996 (“HCCA”) as being the least intrusive alternative. Section 27 of that Act permits a doctor to administer emergency treatment to an incapable person despite the refusal of that person’s substitute decision-maker, if the refusal was not made in the best interests of the incapable person. It is clear from the transcript that the application of that Act was considered by the motions judge. We agree with the Society, however, that that Act is ultimately irrelevant to an application under the CFSA.

[15] Dr. Harrold did consider whether she could administer this treatment pursuant to her authority under the HCCA, and declined to do so. The motion’s judge was in no position to order her to do so. The application before the motion’s judge was under the CFSA, and her authority was circumscribed by s. 51 of that Act. That section provides for only four possible orders which “shall” be made, none of which have anything to do with the HCCA. There is, therefore, no reason to doubt the correctness of her decision on this ground either.

[16] Furthermore, even if there had been good reason to doubt the correctness of the order in question, the Parents have failed to satisfy the second part of the test for leave to appeal. While the issues are important to the Parents, they are not of general public importance having relevance to the development of the law and the administration of justice. These issues are highly fact specific, and do not transcend the immediate interests of the parties.

[17] Leave to appeal is denied.

Mr. Justice T. Platana

Mr. Justice H. McLean

Mr. Justice T. A. Heeney

DATE: November 29, 2005