M.P. v. Children's Aid Society, 2015 ONSC 2965

CITATION: M.P. v. Children’s Aid Society, 2015 ONSC 2965

Divisional Court File No. 13/582

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N

M.P. Appellant

• and –

KAWARTHA CHILDREN’S AID SOCIETY and THE OFFICE OF THE CHILDREN’S LAWYER Respondents

PRESIDING JUSTICES

THE HONOURABLE JUSTICE CORBETT THE HONOURABLE JUSTICE HARVISON YOUNG THE HONOURABLE JUSTICE O'MARRA

AT THE DURHAM REGION COURTHOUSE, 150 BOND ST. E., OSHAWA, ONTARIO, ON MARCH 5, 2015

REASONS FOR JUDGMENT

PUBLICATION BAN

APPEARANCES:

J. Tigert Counsel for the Appellant, CAS J. Long Counsel for the Appellant, OCL M. P. Personally

MARCH 5, 2015

Neutral Case Citation Number

REASONS FOR JUDGMENT

CORBETT, J. (Orally)

This is our Ruling on the preliminary issue. Mr. Huizinga has asked to be present during the argument of this appeal to help him prepare for his own similar proceeding in which he is self-represented.

Counsel for the child and counsel for the Childrens’ Aid Society object on the basis of s.45 of the Child and Family Services Act.

Ss.45.4 provides that a hearing shall be held in the absence of the public subject to ss.5, which does not apply in this case, unless the Court orders that the hearing be held in public after considering;

a) the wishes and interests of the parties; and

b) whether the presence of the public would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

We do not consider the interests of the CAS to weigh in the balance even though it is a party.

One of the biological parents consents and the other takes no position. The child is three and a half years old, currently lives in Alberta and will not be present at or a witness during this appeal.

Mr. Huizinga has a legitimate interest in seeing this Appeal. The open court principle should prevail in all the circumstances and the appeal conducted in public. Orders shall go however, on the terms of ss.45.8 and 45.9 of the Child and Family Services Act.

Ss45.8 of the Child and Family Services Act provides that no person shall publish or make public information that has the effect of identifying a child who is a witness at, or a participant in a hearing, or the subject of a proceedings or the child’s parent or foster parent or a member of the child’s family.

Ss.9 provides that the Court may make an order prohibiting the publication of information that has the effect of identifying a person charged – I guess that doesn’t apply. Nobody’s been charged with an offence so just ss.45.8.

That provision has the effect of prohibiting any person from publishing or making public information that would tend to identify either of the biological parents and the child and that provision is binding on everyone and it was binding before I said it, and it continues to be binding. That is our Ruling.

…. matter continues

This Appeal is scheduled for today, March 5, 2015, and pursuant to the order of Justice Edwards was made pre-emptory as against the Appellant.

The Appellant has requested an adjournment so that she may be better prepared to argue the matter herself or retain the assistance of counsel who could be present at the hearing of the Appeal.

She would be content with an adjournment of as short of four weeks. She has been advised by this court that it is not ordinarily possible to adjourn matters such as this for such short periods of time.

Counsel for the Childrens’ Aid Society and the child both argue against the adjournment. Pre-emptory means pre-emptory as one counsel put it and the interests of the child in seeing this matter finally resolved ought to prevail over a request for another adjournment.

Counsel also argue that there is a history of delay and adjournments in this case and should lead the Court to approach this request for yet another adjournment with suspicion.

It is now nearly 3:30 p.m. on March 5^th and we are about to render our decision on the adjournment application. After that, we understand there are requests for fresh evidence that will have to be dealt with and then a hearing on the merits of the Appeal itself.

We are all of the view that we will not be able to accomplish the hearing of the Appeal in the one hour that remains of court time today. We also would be prepared to sit somewhat longer than 4:30 in order to complete the hearing of the appeal but we do not believe that there will be sufficient time to do so.

We are, however, very concerned about the issues that have been raised by counsel for the Childrens’ Aid Society and for the child.

As a consequence, our conclusion is that we will seize ourselves of this appeal. We will consider the fresh evidence applications today and hopefully complete argument of them on both sides and we will then adjourn the balance of the Appeal to continue before us the week of March 23^rd, 2015, which is a week in which all three of us may make ourselves available for that purpose.

This is subject to canvassing the parties and counsel about their availability that week and selecting a date on which all can be available to do it.

The biological father has appeared today and has indicated to us his feelings in this matter. Of course, you are welcome sir, to come during the week of March 23^rd when it continues before us but you also need not do so if you do not wish to and may be assured we have heard what you have to say and will take that into account at the conclusion of the hearing on the merits but if you wish to come to say more or say again, at the return of the appeal, you will be free to do that.

And that is our Ruling on the adjournment.

… matter continues

I’ve endorsed the back of the Appeal book; in submissions today it emerged that the Appellant does not contest that Gunsolus, J., made the Crown wardship order and that the operative paragraphs in the order are accurately set out in the handwritten endorsement, the transcript and the formal amended order, this past document found at tab 13 in the second volume of fresh evidence.

The Appellant does challenge some of the recitals in the order and that she authorized Mr. Coon to consent on her behalf but she does not contest that the order was made, issued and entered.

… matter continues

I’ve added at the end of this and this will be the end of matters for today; pending final determination of this Appeal, the Appellant is to have no contact with M. or S.P. or with her daughter P.P., or to take any steps in any legal proceeding or with any law enforcement official in any way related to any issue connected with P.P. or the issues on this Appeal unless she obtains prior leave on a motion to a single Judge of the Divisional Court in Toronto on notice to the CAS and the OCL.

If such a motion is brought the Divisional Court office is to bring it to the attention of me or my designate. So you are not to do anything else in connection with your efforts on these issues until this Appeal is determined but if you believe something has come up on an urgent basis that would justify your doing so, you’ll have to get permission from a Judge at the Divisional Court in Toronto and if that happens, it will be brought to my attention and I’m not telling you I will hear the motion or that one of my colleagues here will, but we may if we’re available.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Deborah Tinmouth, certify that this document is a true and accurate transcript of the recordings of M.P. vs. KCAS and OCL in the Superior Court of Justice held at 150 Bond St. E., Oshawa, Ontario, taken from Recording number 2812-201-20150305, which has been certified in Form 1.

April 12, 2015 _______________________________

Deborah Tinmouth, C.C.R.