Court File and Parties
Windsor Court File No.: 329/11
Windsor-Essex Children's Aid Society v. L.1 and L.2
Re: Motion to dispense with service on the respondent father of this protection application.
Endorsement
[1] Having considered the argument of counsel for the Children's Aid Society (society) and the Ontario Children's Lawyer (O.C.L.), I am not persuaded that there is any jurisdiction under the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, the Family Law Rules, O. Reg. 114/99, as amended, or at common law to dispense with service upon a parent as that term is defined under the Child and Family Services Act and/or to exclude the parent as a party (and hence avoid the necessity for service) under subrule 7(4) of the Family Law Rules.
[2] Despite the egregious circumstances of the parties — the society affidavit alleges that Mr. R.L. was convicted of assaulting the subject child, is the subject of a non-association order and that the child continues to suffer emotionally as a result of her sexual assault — I find the reasons advanced by the society and O.C.L. to dispense with notice are not sufficient in light of the jurisprudence.
[3] Failure to give notice where there is provision to do so has been held to abort the ultimate decision made. See Children's Aid Society of Metropolitan Toronto v. Lyttle, [1973] S.C.R. 568, 34 D.L.R. (3d) 127, 10 R.F.L. 131, [1973] S.C.J. No. 62, 1973 CarswellOnt 98 (S.C.C.); see also Re N.P., 15 R.F.L. (5th) 151, [2001] O.J. No. 441, [2001] O.T.C. 93, 2001 CarswellOnt 403 (Ont. Fam. Ct.), Children's Aid Society of Halton Region v. Christopher John R., 2005 ONCJ 514, 29 R.F.L. (6th) 384, [2005] O.J. No. 5786, 2005 CarswellOnt 9010 (Ont. C.J.), and Andrew M. v. Chatham-Kent Integrated Children's Services Children's Aid Society, 2006 ONCJ 556, [2007] W.D.F.L. 928, [2006] O.J. No. 2984, 2006 CarswellOnt 7521 (Ont. C.J.).
[4] It is a fundamental principle of natural justice that a parent be provided with both procedural and substantive protection; see Children's Aid Society of Metropolitan Toronto v. Lyttle, supra. Moreover, in New Brunswick Minister of Health and Community Services v. J.G., [1999] 3 S.C.R. 46, 244 N.R. 276, 216 N.B.R. (2d) 25, 552 A.P.R. 25, 177 D.L.R. (4th) 124, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203, [1999] S.C.J. No. 47, 1999 CarswellNB 305 (S.C.C.), the court found that "the State can remove a child from parental custody only in accordance with the principles of fundamental justice…" and consistent with section 7 of the Canadian Charter of Rights and Freedoms.
[5] With respect to my brother and sister judges, I respectfully decline to follow the findings of Justice Robert J. Spence in Children's Aid Society of Toronto v. Lisa O., 127 A.C.W.S. (3d) 91, [2004] W.D.F.L. 64, 17 O.F.L.R. 153, [2003] O.J. No. 4459, 2003 CarswellOnt 4671 (Ont. C.J.), and Justice Judythe P. Little in Kenora-Patricia Child and Family Services v. Jessie Susan M., 131 A.C.W.S. (3d) 1100, [2001] O.J. No. 6080, 2001 CarswellOnt 6073 (Ont. C.J.).
[6] Not only am I bound by the Supreme Court of Canada decision relating to notice, child protection, fundamental fairness and section 7 of the Charter rights, but I agree with the findings of Justice Clifford S. Nelson found in Children and Family Services for York Region v. E.T., 79 R.F.L. (6th) 263, [2009] O.J. No. 5587, 2009 CarswellOnt 8161. I prefer Justice Nelson's reasoning. I am likely bound by his findings and frankly I completely concur with his analysis.
[7] Accordingly, I find the society and O.C.L.'s reasons are not sufficient to dispense with notice. Mr. R.L. is entitled to notice under clause 37(1)(b) of the Child and Family Services Act. Not providing notice would violate his fundamental right to notice and to be heard and deprive me of a fulsome review of the evidence to determine this child's best interests.
[8] In order to balance and satisfy the father's rights and the child's best interests, this court orders:
That any personal identification information about the parties be blacked out of the application and other materials used in support.
In order to avoid any intentional or unintentional breach of the restraining order, I hereby set the date of Monday, May 28, 2012, in courtroom #3, at 10:00 a.m. for the father to appear alone.
There shall be no necessity for the mother or child to appear and I hereby direct that they not do so.
These efforts will likely prevent the harm that the society is seeking to avoid.
Released: May 11, 2012
original signed and released
Justice Sharman S. Bondy
This Endorsement placed on Endorsement Forms inside the Continuing Record
