CAS Ottawa v. H.
DIVISIONAL COURT FILE NO.: DC-17-2298 DATE: 2018/02/22
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Morawetz R.S.J., Swinton and Blishen JJ.
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
Children’s Aid Society of Ottawa
Applicant/Respondent on Appeal
– and –
B.H.
Respondent/Appellant in Appeal
Danielle Marchand, V. Naik for the Moving Party (Applicant/Respondent on Appeal)
No appearance by B.H.(Respondent/Appellant in Appeal)
HEARD at Ottawa: February 21, 2018
THE COURT (Orally)
1The Children’s Aid Society of Ottawa (“CAS”) has brought a motion pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 to set aside a legal ruling made by Williams J. in the course of her decision to dismiss the CAS’s motion for summary judgment on August 10, 2017. That motion had sought the dismissal of the father’s appeal of an order made pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11 that made his child a Crown ward.
2Since the decision of the motion judge, the appeal has been heard and dismissed by a panel of the Divisional Court. Nevertheless, the CAS seeks to set aside the legal ruling of the motion judge that a motion for summary judgment is not available in the course of an appeal to the Divisional Court pursuant to s. 69 of the Child and Family Services Act. The CAS does not seek to set aside the actual order of the motion judge.
3This motion is moot. There is no longer any legal issue in dispute between the CAS and the father, as his appeal has been dismissed. Indeed, he does not appear on this motion.
4Courts have a discretion to hear a matter despite mootness, but we would not exercise that discretion in this case. As the Supreme Court of Canada stated in Borowski v. Attorney General Canada, 1989 123 (SCC), [1989] 1 S.C.R. 342, in exercising its discretion to hear a moot case, a court should consider factors such as the absence or presence of an adversarial context, judicial economy and the proper role of the court (see pages 358-363).
5In the present case, there is no adversarial context. As the Supreme Court stated in Borowski at page 358:
The first rationale for the policy and practice referred to above is that a court’s competence to resolve legal disputes is rooted in the adversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. For example, although the litigant bringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome that will provide the necessary adversarial context.
6There is only one party before this Court, seeking a ruling on an important legal issue that will affect further appeals to the Divisional Court in regions in which there is a unified Family Court. It would greatly assist this panel of the Divisional Court to have the benefit of representations from parties adverse in interest to the CAS in order that the Court may appreciate all aspects of the legal issue.
7Second, with respect to the concern for judicial economy, this case is capable of repetition in another proceeding, either in this region or another region where there is a unified Family Court.
8Third, the order sought here is not an appropriate exercise of the judicial function. An appeal or a motion to set aside seeks to overturn an order of a judge. The CAS does not seek to overturn the order dismissing the motion for summary judgment. Rather it seeks a broad declaration about the availability of a motion for summary judgment on an appeal to the Divisional Court. Such an order is not an appropriate exercise of the judicial function in the circumstances.
9We also observe that were this Court to hear this matter and overturn the motion judge’s conclusion, there would be no party available to launch an appeal, and that is a further concern.
10Accordingly, we would not exercise our discretion to hear the motion to set aside. We would dismiss the motion on the grounds of mootness.
Morawetz R.S. J.
Swinton J.
Blishen J.
Date of Reasons for Judgment: February 21, 2018
Date of Release: February 22, 2018
CITATION: CAS Ottawa v. H., 2018 ONSC 1221
DIVISIONAL COURT FILE NO.: DC-17-2298 DATE: 2018/02/22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Morawetz R.S.J., Swinton and Blishen JJ.
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
Children’s Aid Society of Ottawa
Applicant/Respondent on Appeal
– and –
B.H.
Respondent/Appellant in Appeal
ORAL REASONS FOR JUDGMENT
THE COURT
Date of Reasons for Judgment: February 21, 2018
Date of Release: February 22, 2018