Court Information

Court File No.: C57225/12

Date: 2014-03-10

Ontario Court of Justice

North Toronto Family Court

47 Sheppard Avenue East

Toronto, Ontario M2N 5N1

Parties

In the Matter of: The Child and Family Services Act, R.S.O. 1990, c. 11

And In the Matter of:

M.S. born […] 2003, and J.S., born […] 2005

Between:

Jewish Family and Child Service of Greater Toronto, Applicant

and

J.Z. (mother) and H.S. (father), Respondents

Before the Court

Justice: Robert J. Spence

Notice of Constitutional Question Heard: 20 January 2014

Reasons for Judgment Released: 10 March 2014

Counsel

• Ms. Sara Westreich – for the applicant society
• Ms. Sheri Hirschberg – for the respondent mother
• Mr. John Schuman – for the respondent father
• Mr. Sheldon Wisener – for the Office of the Children's Lawyer, legal representative of the children M.S. and J.S.
• Ms. Rochelle Fox – for the Intervener, Attorney General of Ontario

Part I: Nature of the Constitutional Question

[1] The father has brought a Notice of Constitutional Question, dated December 6, 2013, (the "Motion"), which seeks:

1. A declaration that an adjournment of the [ongoing child protection] trial ["trial"] for a period of more than 30 days, and the setting of hearing dates for the trial that results in it not being completed within four months is a violation of the Respondent Father's ["father"] rights as set out in section 7 of the Canadian Charter of Rights and Freedoms [" Charter "].

2. An Order pursuant to section 72-1 and 75(1)-1 of the Courts of Justice Act [" CJA "] and consistent with section 51(1) of the Child and Family Services Act [" CFSA "], and section 7 of the Charter setting dates for the continuation of the trial that are not more than 30 days after November 29, 2013 (due to the Court's holiday schedule this may be either December 30, 2013 or January 6, 2014).

3. A further Order that once the trial reconvenes it will be heard on consecutive days until completed.

4. An Order pursuant to section 72-1 and 75(1)-1 of the CJA and 24(1) of the Charter requiring the Ontario Court of Justice to make whatever arrangements are necessary to give effect to paragraphs 2 and 3 above.

5. In the alternative to paragraphs 2-4 above, an Order pursuant to section 24(1) of the Charter, dismissing the [child protection] Application ["Application"] as the trial of the issues cannot be conducted in a manner and within a reasonable time that is necessarily required to be responsive to the paramount purpose of the governing CFSA, and the test of "best interests of child", as provided therein.

6. In the alternative to paragraph 5 above, an Order pursuant to section 24(1) directing that the children be placed in the care of the father, or alternatively that access between the children and their father pending the completion of the trial be overseen by the Optimal Family Services which resource shall supervise the access, by reason that the delay in the trial, coupled with the trial judge's ruling that His Honour may not change the access in place pre-trial severely prejudices the father and the children and contravenes sections 7, 12 [1] and 15 of the Charter.

7. An Order granting the father his costs of this motion, if it is opposed.

[2] The nature of this Motion required the father to give notice to the Attorney General of Ontario ("Attorney General"). The Attorney General chose to intervene in the argument of the Motion. However the Attorney General's intervention was with respect to the Charter issues alone.

[3] The father's Motion was opposed in its entirety by the society, the mother and the Office of the Children's Lawyer (OCL) on behalf of the children and, on the Charter claims, by the Attorney General.

Part II: The Issues

[4] 1. Did the court err, first, in adjourning the trial for more than 30 days beyond November 29, 2013 [2] and, second, in not scheduling the balance of the trial days to be heard consecutively?

2. Is the delay flowing from the said adjournment, and the scheduling of the balance of the trial dates such that it constitutes a violation of the father's rights provided for in sections 7 and 15 of the Charter?

3. If the aforesaid delay does amount to a breach of the father's Charter rights, does section 24(1) of the Charter entitle the father to one of the Charter remedies requested in the Motion?

Part III: Background

a. Events Leading to the Scheduling of the First Stage of This Trial

[5] The Application was issued on or about July 30, 2012 following the apprehension of the parents' two children – now ages 10 years and 8 years - by the society. As at the date of the apprehension, the parties had been separated for a few months, and had a family proceeding ongoing in the Superior Court of Justice.

[6] The Application sought a finding that the children were in need of protection on two grounds – first, that they were at risk of being sexually molested or sexually exploited, pursuant to section 37(2)(c) of the CFSA; and, second, on the grounds that there was a risk that the children were likely to suffer emotional harm, pursuant to section 37(2)(g) of the CFSA; the Application sought a six-month society wardship order.

[7] On July 30, 2012, Justice Harvey Brownstone made a temporary without prejudice order placing the two children, in the care and custody of the society. The case was assigned to Justice Stanley Sherr as case management judge.

[8] Both parents promptly retained counsel, in mother's case, Ms. Hirschberg and in father's case, Mr. Brian Ludmer. [3] As well, Mr. Wisener was appointed from the Office of the Children's Lawyer to represent the interests of the children. The parents both filed separate Answers and Plans of Care.

[9] On October 24, 2012, following a temporary care and custody motion argued two days earlier, Justice Sherr issued a 24-page decision, placing both children in the mother's care, pursuant to a temporary supervision order. Justice Sherr found that due to the protection concerns about father, [4] it was in the children's best interests that father's access to the children be supervised.

[10] On February 8, 2013, the father sought to change Justice Sherr's decision by bringing a variation motion. Justice Sherr heard full argument and dismissed the father's motion to change his access.

[11] On March 11, 2013, Justice Sherr conducted a settlement conference at which time the parties provided a three-week time estimate for trial. The society stated that it would now be seeking a 12-month supervision order with the mother, and it agreed to serve its Amended Protection Application by March 15, 2013. The society did so, amending its claim from the initially-sought society wardship order. That 12-month supervision order is what the society sought at the outset of this trial, and it is the order the society continues to seek. On consent, Justice Sherr made the statutory findings for both children, in accordance with the facts set out in the Application.

[12] As at the commencement of trial, the mother and the OCL support the society's request for a finding in need of protection, as well as the request for a 12-month supervision order with the mother. The father seeks a dismissal of the Application in its entirety.

[13] Justice Sherr then adjourned the matter to the April 23, 2013, trial Assignment Court, presided over by Justice Geraldine Waldman. It appears that when the parties attended before Justice Waldman, they advised Her Honour that they could not be ready for the two-week trial sittings set to begin May 27, 2013. Accordingly, Justice Waldman adjourned the matter to the next Assignment Court on August 7, 2013.

[14] At the same time Justice Waldman advised the parties it was unlikely the court would be able to find three consecutive weeks for trial at the next trial sittings in September, so she suggested the parties address the matter of trial scheduling directly with the case management judge, Justice Sherr.

[15] The parties' next appearance was before Justice Sherr on June 10, 2013. On that date Justice Sherr informed all parties that the three-week trial would take place during the weeks of October 7, 14 and 21, 2013. The trial was to be presided over by me. [5]

[16] I stop at this point in the chronology to discuss the usual process for assigning child protection trial dates at the North Toronto Family Court.

b. The Usual Process for Assigning Child Protection Trial Dates at the North Toronto Family Court

[17] Normally, child protection cases which require a trial, proceed first to an Assignment Court, which is presided over by Justice Waldman. Assignment Court is held four times each year. Following each Assignment Court, a number of the judges are each scheduled [6] to sit for two weeks of trial. [7]

[18] At the Assignment Court date, all cases which are on the list are reviewed by Justice Waldman, who then decides whether to provide trial time – and how much time - based on several considerations. These include the number of cases which are in fact ready for trial, case priorities, as well as availability of judicial trial time. In essence, Justice Waldman engages in a triage process in respect of all the cases which appear before her at the Assignment Court.

[19] The kinds of priorities Justice Waldman will normally consider include the age of the child who is in care, how long the child has been in care, whether the child's time in care is close to, or has exceeded, the statutory time limit, as well as the availability of counsel themselves. There may be other factors she would consider in addition to the foregoing, for example, a last-minute plan of care by a kin where the society says the plan may have merit but requires time for further investigation.

[20] After prioritizing the trial-ready cases, Justice Waldman then assigns a trial, or possibly two trials to each judge who is scheduled to hear trials during the sittings.

[21] The North Toronto Family Court has seven judges presiding full time. As I stated above, each year, there are four Assignment Courts, and four trial sittings, each trial sitting being two weeks in length. At each trial sitting, there are either four judges or three judges scheduled to preside over child protection trials. This enables the remaining three or four judges to continue to case manage their own ongoing cases.

[22] Sometimes, but rarely, a Crown wardship case [8] will take more than two weeks to complete. And if the trial judge does require extra time beyond the scheduled two-week period, he or she will ask the other judges to collectively assist by covering his/her case management list days which would have been scheduled usually months in advance for the period immediately following the scheduled two-week trial sittings. In the few cases where this has previously been necessary, the trial was generally concluded very shortly after the scheduled two-week period. In Crown wardship cases, time is of the essence as the CFSA has statutorily mandated times, beyond which children are not to remain in care. [9]

[23] Returning to the triage process, if (for example) Justice Waldman is faced with the case of a two-year-old child who has been in care for 18 months, where the society is seeking Crown wardship so that the child can be placed for adoption, Justice Waldman will generally consider this to be the highest priority case, primarily because of the age of the child and the fact that the child's time in care has exceeded the statutory maximum permitted by the Act (in this example) by six months.

[24] Generally, next down on the list of priorities are cases where the society is seeking a Crown wardship order for the purpose of adoption, but where the subject children have been in care less than the maximum statutorily permitted period of time set out in the CFSA.

[25] Further down on the list of priorities are those cases where the society is seeking a Crown wardship order for the purpose of adoption, but where the subject children are over the age of six years because, for those children, their maximum time in care as permitted by the CFSA is 24 months.

[26] Yet further down the list of priorities are older children who are in care, where the society is seeking Crown wardship, not for the purpose of adoption, but rather with a continuing access order in favour of the parents. These children are generally in foster placements and are having regular access with their parents.

[27] At the very lowest on the list of priorities, are those cases where the children are not in care; instead they are with one or both parents pursuant to a temporary supervision order, and the society is seeking simply a continuation of that supervision order, rather than an order for Crown wardship.

[28] The present case would have been on the lowest list of priorities had it been sent to Justice Waldman's Assignment Court on August 7, 2013.

[29] I would add that it is very rare, at the North Toronto Family Court, for a child protection case to proceed to trial where the society is seeking a final supervision order with a parent. Fortunately, the case management judges typically facilitate the settlement of virtually all non-Crown wardship cases.

[30] The present case is one of those rare exceptions where, despite the request for a supervision order, the case could not be settled without a trial. It is rare as well, because not only is the society requesting a supervision order, but the number of days sought for trial by the parties exceeds by about a factor of six the maximum trial time allotted for a Crown wardship trial, as the later discussion in these reasons will reveal.

c. Jumping the Queue

[31] The "usual process" is not the process that was followed in this case. When Justice Sherr first allocated three weeks of trial, he did so "off the grid", in an effort to accommodate the parties. In other words, he did not require the parties to attend at the next Assignment Court on August 7, 2013 where their case would have to be triaged by Justice Waldman. Instead, he came straight to me and asked whether I could make adjustments to my schedule in order to accommodate the parties' request for a three-week trial. [10] The parties were relieved of the requirement to establish that their case deserved priority trial time over other cases awaiting trial. As I noted, Justice Sherr gave the parties three weeks beginning October 7, 2013 and concluding October 25, 2013. [11]

[32] Second, instead of restricting the parties to two weeks of trial, Justice Sherr allocated three weeks, based on the parties' own estimate of the time that would be required.

[33] Subsequently, on August 1, 2013, when the parties attended before me at the Trial Management Conference, each party canvassed a number of issues that required direction from the court. I advised the parties of my three unavailable dates and the OCL then advised the court he would not be available on another of the dates, thereby reducing the number of available trial days to 10.

[34] However, what became apparent at the Trial Management Conference was that the estimated length of trial would likely be considerably greater than the three weeks originally estimated by counsel. As a result, I gave the parties another two weeks in November, beginning the week of November 18, 2013. This two-week period was a scheduled child protection trial sitting for me, so the dates were immediately available to be scheduled as another trial had not yet been assigned to me by Justice Waldman. However, unlike the process I described above, the parties received these additional two-weeks on the spot, again, without the normal triage process which takes place at Assignment Court. Again, the parties received priority scheduling.

[35] There is little doubt that these additional two weeks of trial came at the expense of what almost certainly would have been a Crown wardship trial assigned to me during the November trial sittings. And, as I discussed earlier, Crown wardship trials take priority when it comes to the consumption of judicial resources.

[36] During the course of the Trial Management Conference, the father himself arose in the courtroom to advise that there was a "possibility" that Mr. Schuman would be taking over the case entirely from his then-counsel Mr. Ludmer, and that Mr. Schuman might not be available on the additional November dates. In effect, the father was seeking a delay of the November dates I had just granted. I said the following in response:

I was told by Justice Sherr that counsel insisted on having this go to trial and insisted on having this dealt with in a timely way. That was the position that was advanced by counsel. So I have bent my schedule out of shape to ensure that that happens.

[37] In the result, because it was clear that this additional trial time would be necessary, I ordered all counsel to be available to continue with the trial during that additional two-week period in November.

[38] I also made it clear to everyone when the trial commenced on October 7, 2013, that the parties had been given five weeks of trial and that they should use their trial time wisely. [12]

[39] By the third week of this multi-week allocation, the parties were making it known that this scheduled trial time would, yet again, fall far short of what they would actually require in order to complete the trial. On the last day of this trial allocation period, namely November 29, 2013, I released an endorsement, setting out briefly the procedural history of the scheduling of this trial, and assigning a further 43 dates for trial, commencing April 28, 2014, and continuing off and on to December 5, 2014. For the sake of clarity and completeness, I set out that endorsement, as follows:

Endorsement dated November 29, 2013

On June 10, 2013, with the consent of all parties, Justice Sherr scheduled this trial for three weeks, beginning October 7, 2013. The three weeks of trial time was based on all counsel's estimate of the required trial time.

At the trial management conference before me on August 1, 2013, counsel advised that additional trial time would be required, and they sought a further two weeks. Accordingly, I scheduled additional trial dates for the two week period beginning November 18, 2013.

At the outset of trial in October, I advised all parties that they would have to use the scheduled trial time efficiently as there would be little or no further trial time available – and certainly nothing available in the near future - should the trial go beyond the dates scheduled.

As the trial progressed during November, counsel advised that the trial could not be concluded during the additional two weeks in November. I made it very clear to all parties that should the trial not be concluded by November 29th, it could not be resumed until well into 2014 because of the court's commitment to the other cases which had been scheduled months in advance, as well as the court's ongoing commitments to other cases.

At my request, counsel organized a detailed chart of the remaining witnesses that would be called at trial following the conclusion of the last-scheduled date on November 29, 2013. Counsel's best estimate – provided to me in chart form on November 28th – was that a further approximately 180 hours of trial time would be required, including time for opening statements and final submissions. Counsel also provided me with a list of dates that they would be available over the coming months, as well as a list of their unavailable dates due to other trial commitments, vacations, religious holidays, and so on.

Counsel's availability for the start of trial each day, as well as consideration of Father's need to end early two days each week for the purpose of exercising his access, leads me to conclude that realistically no more than 5 hours of trial per day is likely to occur. On that basis, at least 36 additional trial days would be required, based on counsel's estimate. While I realize that counsel have made best efforts to estimate the remaining required trial time, the way in which counsel have previously estimated trial time, suggests that it would be prudent to schedule a number of additional days beyond what counsel have requested.

Accordingly, having regard to all of the foregoing, I set the following dates for the continuation of this trial in 2014, all trial days to begin at 10:00 a.m.:

• April 28 to May 1 – 4 days
• May 5 to May 9 – 5 days
• June 2, 3, 6 and 9 to 13 – 8 days
• September 8 to 11; 15 to 18 – 8 days
• October 20 to 23; 27 to 30 – 8 days
• November 24 to 28 – 5 days
• December 1 to 5 – 5 days

Total: 43 days

Subject to exigencies which may arise, in which case leave of the court will be required, all counsel and parties will be available for the foregoing dates.

In setting these dates, which will run close to the end of 2014, I realize that not all parties will be content with the lengthy passage of time that will occur before the trial is concluded. However, I must consider the schedule of four lawyers, as well as the court's schedule and, importantly, the court's need to allocate resources to other cases.

Mr. Schuman, on behalf of father, had indicated some time ago that he wished to argue a Constitutional issue in connection with the potential delay in resuming this trial. With that in mind, I set aside the entire day on January 20, 2014 for argument. [13] The Attorney General for Ontario has notified the parties and the court that it seeks to intervene on the issue. As at November 28th, Mr. Schuman advised the court that his client may decide not to proceed with the Constitutional question, and that his client's decision in this regard will depend on the scheduling of the balance of the trial dates, which I yesterday advised I would provide to the parties today.

Having now provided those dates for resumption of trial, I will give Mr. Schuman 7 days to make a firm commitment regarding his client's intentions, one way or the other. No later than December 6, 2013, Mr. Schuman will file a 14B notice with the court advising one of two things:

1. either his client is waiving any Constitutional claim insofar as the rescheduling of this trial is concerned and that the motion scheduled for January 20, 2014 need not proceed;

2. or his client is intending to proceed with the motion, in which case the filing deadlines for material which I previously gave to all parties will apply.

Finally, as I noted in my endorsement dated November 22, 2013, at the request of the parties, I have set aside February 5, 2014 for motions which various parties seek to bring prior to the recommencement of trial (with filing deadlines for those motions as set out in my November 22nd endorsement). Should Ms. Hirschberg wish to bring a motion for interim disbursements and/or security for costs, she shall first seek leave by 14B motion, on notice to all parties, before Justice Sherr. Justice Sherr, as case management judge, will determine whether to grant leave and, if so, the procedure for arguing any such motion. [14]

[signed] Justice Robert J. Spence

Part IV: The Issues Discussed

Issue #1 - Did the Court Err in Adjourning the Trial for More Than Thirty Days Beyond November 29, 2013 and Failing to Schedule the Remaining Trial Dates to be Heard Consecutively?

a. The Delay Beyond Thirty Days

[40] The father seeks an order pursuant to section 72-1 and 75(1)-1 of the Courts of Justice Act "and consistent with section 51(1) of the CFSA".

[41] Section 72-1 of the CJA states [my emphasis]:

72. The Attorney General shall superintend all matters connected with the administration of the courts, other than the following:

73. Matters that are assigned by law to the judiciary, including authority to direct and supervise the sittings and the assignment of the judicial duties of the court.

[42] It is not clear to me why the father cites this statutory provision as, on a plain reading of the words of this section of the CJA, the Attorney General has no authority "to direct and supervise the sittings and the assignment of the judicial duties of the court". [15]

[43] Section 75(1)-1 of the CJA states:

Powers of chief or regional senior judge

75. (1) The powers and duties of a judge who has authority to direct and supervise the sittings and the assignment of the judicial duties of his or her court include the following:

76. Determining the sittings of the court.

[44] In citing this section of the CJA, the father seems to be suggesting that either the Chief Justice of the Ontario Court of Justice or the Regional Senior Justice of the Toronto Region has the authority to direct an individual judge when and how to schedule a particular case. Implicitly, the father is arguing that this court can somehow order either the Chief Justice or the Regional Senior Justice to, in turn, order this court to determine when and how to schedule the case before the bar. If this is the relief that the father is seeking he would have to seek an order, not from this court, but from either the Chief Justice or the Regional Senior Justice, in effect, compelling me to schedule this case in the manner sought by the father. This is not what the father has done in the Motion before me. [16]

[45] The father submits that section 51(1) of the CFSA prohibits adjournments for more than thirty days. That section states:

Adjournments

51. (1) The court shall not adjourn a hearing for more than thirty days,

(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or

(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment. R.S.O. 1990, c. C.11, s. 51 (1).

[46] However, on the last scheduled day of trial, November 29, 2013, one of the society's witnesses was unable to conclude his evidence when the trial adjourned for the day. I canvassed dates to return to court to conclude this evidence and all parties agreed to the date of January 23, 2014 to return for this purpose. [17]

[47] Furthermore, as I noted earlier, and as I set out in my endorsement dated November 29, 2013, all parties agreed to attend court for all-day, mid-trial motions to be argued on February 5, 2014.

[48] Accordingly, there was no breach of section 51(1) of the CFSA as at the last court date of February 5, 2014. And there was no breach of section 51(1) of the CFSA, as at the date of arguing this Motion on January 20, 2014.

[49] With respect, in my view, the more accurate way to put father's argument, is whether there was a prospective breach of section 51(1) by delaying the trial for more than 30 days beyond February 5, 2014, combined with the court's decision to not hear the balance of the trial on consecutive days.

[50] As I stated earlier in these reasons, I made it as clear as I could at the Trial Management Conference on August 1, 2013, that a specified number of weeks had been scheduled for trial, and there would simply be no more dates available until well into 2014. It is important to note that despite this, it was father himself who requested a delay in the trial proceedings, a request which I turned down when I endorsed the record on that date: "denied father's request not to proceed with the November trial dates".

[51] As at the date of the Trial Management Conference on August 1, 2013, all parties, including the father were prepared to move forward to trial knowing in advance what the availability was for trial dates and knowing in advance that if they were unable to conclude the trial by the end of those dates, the trial would not be able to recommence until the Spring of 2014. No one, the father included, raised any objection to the stated necessity for a lengthy adjournment if the trial were not to be concluded by the end of the scheduled dates in November.

[52] In fact no objection was raised by father until near the end of the November dates. This objection came almost four months after all parties understood and implicitly agreed to the schedule, including the need for a lengthy adjournment should the parties be unable to complete the trial within the time frame they themselves requested of the court, the time frame which they themselves represented to the court as sufficient within which to complete their trial.

[53] Implicit in all this is an all-parties' understanding of the scheduling challenges that would be facing everyone if the trial were to go beyond the scheduled dates and, at least, an all-parties' tacit acceptance of the need to schedule any additional dates well beyond the 30-day limit provided for in section 51(1) of the CFSA.

[54] And, as I stated earlier, it is only the father who objects to this scheduling of the second stage of the trial.

[55] The father also relies on Rule 33 of the Family Law Rules (the "Rules"). Rule 33 provides:

TIMETABLE

33. (1) Every child protection case, including a status review application, is governed by the following timetable:

Step in the case	Maximum time for completion, from start of case
First hearing, if child has been apprehended	5 days
Service and filing of answers and plans of care	30 days
Temporary care and custody hearing	35 days
Settlement conference	80 days
Hearing	120 days

O. Reg. 91/03, s. 7 (1).

[56] I was referred to Children's Aid Society of Haldimand-Norfolk v. C.N., [2001] O.J. No. 4164 (C.J.), a decision of my colleague Justice Gethin Edward. In that case, the court was faced with a Rule 33 delay of more than double what the Rule provides for. At paragraphs 19 and 20 of that case, Justice Edward stated:

If the rules are to mean anything, I think that, once all reasonable steps have been taken by the Court to comply with them and it still cannot comply with them, then you are left with no other option but to say the Court loses jurisdiction to hear the case. . . . I therefore rule the Court has lost its jurisdiction to adjudicate on the matter [and the court ordered the return of the children to the parents].

[57] It should be noted that not only had the timelines in that case been exceeded but the court was faced with the difficulty of still being unable to schedule even the start of the trial. That is not the case here. On that basis alone, I would distinguish C.N. from the present case.

[58] Apart from that, and with respect to my learned colleague, I have some difficulty with reasoning which leads to a return of children to a situation which may place them at risk of serious harm, a place from which they had earlier been apprehended. [18] Instead, I prefer the reasoning of the following cases to which I will now refer.

[59] In Kenora-Patricia Child and Family Services v. M.(A.) (No. 2), 2005 ONCJ 39 the court was required to consider the impact of Rule 33 where the timelines had not been met. At paragraph 16, Justice Theo Wolder stated [my emphasis]:

The respondents argue that the provisions of subrule 33(3) have been violated. There is no doubt that the timetable set out in subrule 33(1) of the Family Law Rules has not been complied with. Subrule 33(3) provides that the court may lengthen a time shown in the timetable only if the best interests of the child require it. The respondents further contend that the Family Law Rules do not make provisions for the extension of a time limit after that time limit has expired. I find that the wording of the Family Law Rules does not preclude that possibility. I further find that the rules do not require the court to endorse the record or to make pronouncements in open court when lengthening a time limit under subrule 33(5) or subrule 33(3). Accordingly, in the absence of the transcript of the evidence and of the rulings of the court made at each adjournment, there is no evidence that the court failed to consider the issue of best interests when extending the time limits from time to time. Therefore, although the rules require the court to reflect upon the child's best interests each time an adjournment is granted that extends the time set out in the timetable, nothing in the evidence before me suggests that the court was not aware of the requirements of subrule 33(3) and that the issue of best interests was not considered by the court. Therefore, this court did not lose jurisdiction when it granted the various adjournments from time to time.

[60] And in yet another decision by Justice Wolder, in the case of Children's Aid Society of Halton Region v. C.(S.) et al., 2004 ONCJ 54, Justice Wolder stated [my emphasis]:

Notwithstanding that the 120-day maximum to hearing provided in subrule 33(1) will be exceeded if I allow the respondent mother's motion and deny the society's application for summary judgment, the reality is that, with the limited court resources available, it is not at all unusual for the time lines set out in subrule 33(1) of the Family Law Rules to be exceeded in the majority of contested cases in this jurisdiction. Therefore, the right of children to have the issue of best interests determined on the merits should not be lightly taken away merely because some arbitrary timeline has been exceeded.

See also Huron-Perth Children's Aid Society v. M.(T.S.) et al., 2004 ONCJ 38 where the court acted on its authority to extend the time limits imposed by Rule 33.

[61] I agree with and adopt Justice Wolder's reasoning in both of his aforementioned reasons for judgment. Most importantly, in my opinion, the paramount purpose of the CFSA is to "promote the best interests, protection and well being of children". [19] The paramount purpose of the CFSA can only be determined on the merits of each case, something which would be defeated were the case to be summarily dismissed due to a non-compliance with the 120-day timeline set out in Rule 33.

[62] In L. (R.) v. Children's Aid Society of the Niagara Region, [2002] 34 R.F.L. (5th) 44 (Ont. C.A.), the Court of Appeal was faced with the issue of an extensive delay – more than two years – between the date of apprehension and the post-apprehension hearing. At paragraph 44, the Court stated [my emphasis]:

There is no doubt that the delay is of much concern in this case, as it is in all child protection proceedings. Obviously it is of paramount importance to all children involved and their families that issues of child protection be dealt with as expeditiously as possible or, in the words of the statute, "at the earliest date that is compatible with the just disposition of the application." It is apparent from a general review of the case law in this area that delay in child protection hearings, unfortunately, is a concern that is not unique to this case. For a thoughtful discussion of the issue, see W. A. McTavish & R. Vogl, "Delay Within the Justice System in Child Protection Cases" (National Judicial Institute Conference, September 2002) [unpublished]. The authors comment on many sources of delay at p. 3:

Every person in the child protection and justice systems, in one way or another, contributes to delay. Each of them possesses the power to reduce delay. For example, parents may delay proceedings by not obtaining counsel in a timely manner or failing to attend at assessment appointments; lawyers may not be prepared for a motion or trial; Children's Aid Societies may not identify all necessary parties or serve documents in a timely manner on all parties; judges may adjourn trials without concluding the evidence and submissions of counsel; and court administrators may not be able to identify proceedings which have exceeded the time frames of the legislation and the rules of practice.

[63] And at paragraph 46, the Court continued [my emphasis]:

It is our view, however, that the delay in this case does not bring this matter outside the ambit of the legislation as contended by the appellants. See Children's Aid Society and Family Services of Colchester County v. W.(H), reflex, (1996), 25 R.F.L. (4th) 82 (N.S.C.A.) where the Court held that the court does not lose jurisdiction to proceed with a dispositional hearing beyond the stated time limit as long as it is guided in that regard by the best interests of the child. Thus, contrary to the appellants' submissions, the Act continues to be a complete code although the timelines contemplated by the Act are exceeded. Such an approach is consistent with the legislative scheme as a whole.

[64] I return again to the Trial Management Conference and my earlier comments, namely, that the parties consented, at least implicitly, to an understanding and awareness of future available court time and, at least, tacitly accepted those limitations. They proceeded on the basis that should the trial not be completed within the assigned trial dates it would not be able to resume for several months into 2014.

[65] None of the foregoing is to suggest that it is somehow preferable to take an excessive amount of time in determining outcomes in child protection cases. Courts have long recognized that child protection cases, by their very nature, should be heard and decided within a reasonable period of time and without undue delay. See, for example, Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.) and, [1994] 2 SCR 165 and L.(R.) v. Children's Aid Society of Metropolitan Toronto (1995), 21 O.R. (3d) 724 (C.J.).

[66] However, in my opinion, what constitutes a reasonable timeline is very much about context. And in this case, there are two main contextual considerations. The first is the manner in which the parties proceeded and the understanding they had about available trial time combined with the fact that not only did no one object, but father himself had requested an adjournment prior to the start of trial.

[67] The second contextual consideration is the operation of Rule 2, the Rule which father himself prominently relies upon in his factum. And it is within that second contextual consideration that I continue my analysis.

Rule 2 of the Family Law Rules

[68] Subrules 2 (2), (3) and (4) of the Rules, provides as follows [my emphasis]:

PRIMARY OBJECTIVE

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

DUTY TO PROMOTE PRIMARY OBJECTIVE

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

[69] I cite from paragraphs 121 and 122 of the father's factum:

121. The primary objective of the Family Law Rules (the "Rules") is to enable the court "to deal with cases justly", which includes "saving expense and time" and "ensuring a process that is fair to all parties".

122. Per Rule 2(4) of the Rules, the court is required to apply these rules to promote the primary objective.

[70] I agree that Rule 2 is very significant in the courts' consideration of their day-to-day scheduling and management of their assigned cases.

[71] In L.H. v. Catholic Children's Aid Society of Toronto 2011 ONCA 385, [2011] O.J. No. 2202 (Ont. C.A.), the Court of Appeal had the following to say about efforts made by the North Toronto Family Court to accommodate cases, given the heavy caseload volumes which this court location experiences (at paragraph 11) [my emphasis]:

Brownstone J. [20] then traced the history of the proceedings, made reference to "the exorbitant demands upon the judges of the North Toronto Family Court to manage one of the highest family law caseload volumes in Canada" and concluded that every reasonable effort was made to expedite the case in accordance with the direction of the Court of Appeal.

[72] For the purpose of these reasons, it is important to understand just what is meant by the words "one of the highest family law caseload volumes in Canada" and the "exorbitant demands" placed on the judges of the North Toronto Family Court.

[73] For the 12-month period ended September 2013, the Ontario Court of Justice received 22,653 family cases [21] throughout the entire Province. Of that total, the North Toronto Family Court received 3,979 cases during the same period. [22] This means that the seven judges who preside at this location receive close to one-fifth of the cases in all of Ontario. Put in somewhat more manageable terms, each of the seven judges at the North Toronto Family Court is responsible for 568 cases per year. [23]

[74] Unquestionably, many of the cases that judges manage settle early or require less demanding judicial attention. However, a great many cases are complex and time-consuming. Many of our cases require multiple appearances – sometimes in the double-digits – in the form of case conferences, settlement conferences, or motions before a resolution can be obtained, or before the case is assigned to another judge for trial. [24]

[75] For example, in child protection cases, judges are always mindful of the importance of trying to preserve the family unit, where that is possible, having regard to the "best interests, protection and well being of children". [25] But, in order to do this, it is often necessary (for example) to give a parent time to overcome addiction issues, obtain suitable housing, or address anger management issues. These are time-consuming and not always successful processes, but processes which are nevertheless crucial in the day-to-day work of the case management judge in a child protection case.

[76] And it is for these kinds of reasons that Justice Wolder's comment that "it is not at all unusual for the timelines set out in subrule 33(1) to be exceeded in the majority of contested cases", is equally apt for the contested cases at the North Toronto Family Court.

[77] Family judges are responsible for primarily two subsets of family cases – child protection cases and domestic cases. The former pits the state against the family unit. [26] The latter is a forum, generally, for parents to contest issues with one another – issues such as custody, access and child support.

[78] That said, each of the 568 cases has one common thread. Everyone who appears in court understandably considers his/her case to be of the utmost importance. Whether it is a parent who seeks custody of a young child, a custodial parent who is in desperate need of child support, a destitute spouse who needs spousal support, an abused parent who requires a restraining order, a parent whose child has been apprehended by a children's aid society and seeks some access, or a parent who is in a race against time to recover from addiction before the clock runs out [27] and his or her child is made a Crown ward and placed for adoption, all of these people understandably need – and are entitled to - access to justice; and they are entitled to that access to justice as quickly as is reasonably possible until their problems can ultimately be resolved, whether on consent, or following a contested hearing.

[79] What does all of this have to do with the present case before me and the issue of how the trial has been scheduled? In the same way that every one of the litigants in the 568 cases each judge at the North Toronto Family Court case managed in the prior 12-month period is entitled to speedy and effective justice, both parents and the children in this case are similarly entitled.

[80] It is trite to observe that judicial resources are not unlimited. Those limitations extend to numbers of judges, as well as all the supporting infrastructures which go into the makeup of court operations in this Province. And it was for that very reason that Rule 2 was enacted.

[81] While the "primary objective" is to deal with cases "justly", it is the responsibility of all the lawyers and the parties to "help the court" to work cooperatively to "promote the primary objective".

[82] The parties and their counsel in the case at bar are not exempt from this responsibility. They have an obligation to recognize that while their case may be important to each of them, there are 567 other cases that the trial judge must manage, [28] cases which are no less important to the litigants whose lives remain in disarray pending a final resolution, whether by consent or by trial. And given the limitation on resources, those 567 other cases must be managed within the time allocated to a sitting judge throughout the year which, in rough terms, is about 170 in-court days, per judge, per year. [29]

[83] To put all of this into perspective, in 2013 this court spent 20 days on the present trial, or about one-ninth of the court's entire allotment of sitting days. For 2014, a further 43 days have been allocated. Those 43 days represent approximately one-quarter of the entire allotment of sitting days for 2014. This means that the other approximately 567 cases will have to make do with the remaining 75% of the court's available in-court time. To put this in the starkest of terms, this case, which represents 0.0018% of the court's caseload, is consuming 25% of the court's resources.

[84] Is the allocation of so much court time to one case fair and just? Can it possibly ensure that all of the participants in the other 567 cases have equal access to family law justice at this court location? In my view, the answer to the second question is clearly no. The answer to the first question is, however, far more complex.

[85] Regardless of the uneven allocation of resources given to cases, the court strives to ensure that everyone, in all cases, is treated justly. However, the more the court is hampered by the excessive demands of any one case [30], the more challenging it is for the court to accomplish this objective. Dates must be juggled; some judges must inevitably become significantly overworked in order to take on the additional caseload that is supposed to be done by the judge who had become overburdened by the demands of a particular case such as the present one. And, in the end, some litigants and, more importantly, some children, will often suffer as a result of the "exorbitant demands" referred to by the Court of Appeal in L.H., supra. These exorbitant demands are imposed on the entire courthouse and, inevitably spill over onto the other 3,978 cases which this court location must manage.

[86] Given all this, it is not surprising that the Court of Appeal in L.H., supra, saw fit to include in its judgment the comments of Justice Brownstone about the exorbitant demands placed on the North Toronto Family Court.

[87] And on the issue of how to dole out those precious and much in-demand court resources, the Court of Appeal in L.H., supra, went on to state, at paragraph 29 [my emphasis]:

I note also that rule 2(2) provides that the primary objective of the Family Law Rules is to enable the court to deal with cases justly, and rule 2(3) provides that "[d]ealing with a case justly includes…(c) dealing with the case in ways that are appropriate to its importance and complexity, and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases."

[88] Finally, as part of this discussion about Rule 2 and the need to allow judges to assign trial dates in accordance with available resources and in consideration of the needs of other cases, I turn to the case of Children's Aid Society for the District of Thunder Bay v. S.P., [1999] O.J. No. 5558 (Ont. S.C.J.), a decision of Justice John Wright. In that case, the timelines under Rule 33 had been exceeded, and Justice Wright posited a number of questions, including (at paragraph 9):

Should the application be dismissed and the children's aid society directed to return the child to her mother?

[89] Beginning at paragraph 11 of his reasons, Justice Wright discusses the import of Rule 2 and why (in effect) an arbitrary timeline provided for in the Rules cannot be allowed to prevail over the needs/protection/best interests of children. I have decided to quote at length from his judgement because, in my view, Justice Wright's comments very neatly put into perspective the importance of allowing the judiciary to schedule their own cases within the context of Rule 2 considerations. Justice Wright stated [my emphasis]:

11 Has the Executive, by its Order-in-Council promulgating rules, imposed a timetable upon the court that must be adhered to notwithstanding the exigencies of caseload and resources, or does the caseload of the court constitute a factor to be considered in determining whether the best interests of the child require a lengthening of the timetable?

12 I have concluded that the timetable that is imposed by rule 33 in child protection matters grants judges a discretion to extend the timetable on the basis of a consideration of resources. Judges must consider this timetable when allocating resources. Those resources are finite. But, in the final analysis, it is for the courts to determine how those resources will be utilized, given the different claims upon those resources. In addition to child welfare matters, these judges must also dispose of young offenders applications. The legislation governing - the Young Offenders Act, R.S.C. 1985, c. Y-1 - directs that they shall be disposed of within a reasonable period of time. These judges also hear custody applications under the Children's Law Reform Act, R.S.O. 1990, c. C-12. That statute commands that such applications be disposed of within six months.

13 Subrule 2(2) states that the primary objective of these rules is to enable the court to deal with cases justly.

14 Subrule 2(3) states "dealing with a case justly includes":

• (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

15 This is a recognition that, while a duty is imposed upon the judge by these rules, it is a duty that is dependant upon the resources available to the judge.

16 When interpreting legislation, whether stature or order-in-council, that might be interpreted as giving the Executive power to dictate to the courts the order in which cases will be disposed of, there is a presumption against an interpretation that might lead to that result.

17 Deschênes in his study, Maîtres chez eux, page 124, stated:

The independence of the judiciary requires absolutely that the judiciary and it alone manage and control the movement of cases on the trial lists and the assigning of the judges who will hear those cases.

18 In this case, if one assumes that the failure to comply with the timetable might jeopardize the protection application and if one accepts that it is implicit in the order that kept the child in care and extended the timetable, that the judge considered the facts warranting a hearing, then one can infer that the judge considered that, since his caseload would not allow the timetable to be met, it was in the best interests of the child to extend the timetable rather than to incur the risk that the application would be aborted.

[90] And because of all this, including the court's obligation under Rule 2 to devote resources to the present case "while taking account of the need to give resources to other cases", I scheduled the trial dates in the manner as set out in my endorsement dated November 29, 2013.

b. Why Not 43 Consecutive Days?

[91] This case involves the participation not only of the court, but also four lawyers. In my consideration of the additional 43 dates, I asked all four lawyers to provide me with a chart setting out the dates that each would not be available in 2014, and the reasons for each lawyer's unavailability. I was told by all counsel [31] that July and August were essentially not available in their entirety, not only because of counsel vacation dates but, as well, the difficulty of obtaining professional witnesses during the summer months. [32]

[92] From the court's perspective, much of its schedule had been booked several months in advance of the last scheduled trial day of November 29, 2013. [33] And to cancel other cases and other appearances that had long been scheduled would be, in my opinion, unjust in the extreme and, certainly, not "taking account of the need to give resources to other cases".

[93] That left the months of April, May, June, September, October, November and December, within which to schedule the remaining 43 days.

[94] All counsel except for Mr. Schuman had extensive commitments throughout much of these months, including trial sittings for other cases, religious holidays and likely some vacation time as well.

[95] The court also had other commitments, including religious holidays, trial sittings for other cases, judicial conferences and vacation time.

[96] In addition, included in the court's consideration of its own available time is the necessity to intersperse with this trial, the rest of the court's caseload, and to ensure, as much as possible, that in the judicial management of those cases [34] there are no undue gaps between one court appearance and the next court appearance. As I discussed earlier, it is typical for both domestic as well as child protection cases to require multiple court attendances in order to move a case forward effectively. These attendances are often remedial in nature; for example, a parent who seeks access to a child in a domestic case may not have seen that child for months, or even years. It is often necessary in such cases to slowly increase the parent's access in an attempt to normalize what may have been a prior non-existent relationship. And it is crucial in such cases to ensure that case conferences are scheduled at appropriate intervals, in the best interests of children.

[97] These case conferences, settlement conferences, motions, and so on, are often scheduled months in advance. And it was for that reason in particular that I advised the parties very early on that if they were unable to complete the trial within the scheduled dates, the trial could not be resumed until well into 2014.

[98] If I were to have scheduled the remaining 43 days of trial in anything even approximating consecutive dates, it would have resulted in months of unacceptable delay in the management of my other cases, something which I consider to be unacceptable, given the wording of Rule 2.

[99] In addition, the other lawyers on this case were justified, in my view, in making other professional and personal commitments, based on the projected trial timelines that were discussed at the Trial Management Conference on August 1, 2013. And because of this, it would have been most unfair to force those lawyers to attend on this trial on dates that conflicted with their other reasonably-scheduled commitments. In the "good old days" some courts would tell lawyers that their professional responsibilities took priority over everything else in their lives and that lawyers had to be prepared ask "how high" when a judge told them to jump. In discussions with my colleagues, I sense that this philosophy is becoming a thing of the past as, increasingly, judges realize that lawyers have personal lives, as well as professional lives. That is not to suggest that there aren't situations where a judge must be forced to make difficult decisions based on urgencies in a case but, again, in my view it is all about prioritizing – and balancing – personal life with professional responsibilities.

[100] While I appreciate father's wish to get on with this trial, this is not a case where children are languishing in foster care, or a case where children are waiting to be adopted, while statutory timelines are being ignored.

[101] Once again, this sort of trial scheduling is about the judiciary balancing competing interests and, to reiterate the words of Justice Wright in S.P., supra, "It is for the courts to determine how those resources will be utilized, given the different claims upon those resources".

[102] In looking at all the Rule 2 considerations, the court had to balance the need to be "just" and "fair" to the parties in this case with the requirement in Rule 2(3) (d), namely, "while taking account of the need to give resources to [the] other [567] cases".

[103] It was with all of these considerations in mind, that I arrived at the allocation of, and the dates for the remaining 43 days of trial.

[104] Finally, I would add, that even with this allocation, the court will not be available to preside over some otherwise-scheduled child protection trials where the children are perhaps languishing in care and waiting to be adopted. [35] In that respect, the scheduling of this trial continues to represent an ongoing exercise of queue-jumping.

[105] Accordingly, in answer to Issue #1, did the court err in adjourning the trial for more than 30 days, and in failing to schedule the balance of the trial dates consecutively, I conclude that both the length of the adjournment, as well as the scheduling of the balance of the trial dates were within my jurisdiction and were subject to my discretion, and were set in accordance with the primary objective, as prescribed by Rule 2.

Issue #2 – Is the Delay in Scheduling the Balance of the Trial a Violation of the Father's Charter Rights?

[106] Regardless of the court's reasons, as discussed above, for deciding how to schedule the balance of the trial, the father argues that the delay inherent in that scheduling amounts to a breach of his Charter rights, specifically, under sections 7 and 15 of the Charter.

a. Section 7 of the Charter

[107] Section 7 of the Charter provides [my emphasis]:

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[108] It is the father's position that his section 7 Charter rights have been infringed and the remedies he seeks [36] are available to him pursuant to section 24(1) of the Charter. [37]

[109] In order to satisfy the court that there has been a breach of his section 7 Charter rights, the father must establish on a balance of probabilities, first, that the delay complained of impaired his security of the person, and second, that the impairment was not in accordance with the principles of fundamental justice.

[110] It is important to understand that the Charter right to "security of the person" is not an absolute right. Instead, that right is subject to the "principles of fundamental justice".

[111] On the wording of section 7 of the Charter, both parts of this two-part test must be met.

[112] I turn first to the leading section 7 Charter case in child protection proceedings, namely, New Brunswick (Minister of Health & Community Services) v. G. (J.), [1999] 3 SCR 46, a decision of the Supreme Court of Canada. In that case the Court held that held that Charter rights are engaged in child protection proceedings. In particular, the removal of a child from a parent engages that parent's security of the person.

[113] At paragraph 2 of G. (J.) the Court stated:

When government action triggers a hearing in which the interests protected by s. 7 of the [Charter] are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair.

[114] At paragraph 60, the Court continued [my emphasis]:

For a restriction of security of the person to be made out, the, the impugned state action must have a serious and profound effect on a person's psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.

[115] Other courts have expressed concern about delays in child protection cases and have observed that delay in child protection is something to be avoided where at all possible. See for example CAST v. A.K. et al., 2010 ONSC 181.

[116] In his factum, the father cites the case of Children's Aid Society of Oxford County v. C. (W.T.), 2013 ONCA 491, wherein the Ontario Court of Appeal stated, at paragraphs 55 and following [my emphasis]:

In summary, the mother submits that her rights under s. 7 of the Charter have been violated by delays she did not cause. . . . It is evident that expedition of the proceedings is particularly important in child welfare cases, where the lives of a child, her family and in some cases such as this one, a potential adoptive family, are put on hold awaiting the outcome. . . . It is clear that in child welfare matters, where the fate of a child is determined through the CFSA protection process, including appeals, hearing dates must be timely. . . . Where that does not occur, the rights of the child and of her family can be affected.

[117] As the Court stated, undue delay in child protection cases can engage section 7 Charter rights. However, the Court did not in fact determine that issue, including what it meant by "timely" dates, and in what specific circumstances lack of timeliness will engage those section 7 Charter rights.

[118] The father also relies on S.H. v. The Minister of Social Development, 2013 NBCA 35 for the proposition that delay in a child protection case can amount to a Charter violation. This case does not shed any further light on, or expand upon the principles otherwise enunciated by the Supreme Court of Canada in G. (J.), supra, except that in S.H., the New Brunswick Court of Appeal, having found a breach of section 7 Charter rights, allowed the appeal and ordered a new trial. However, the decision is very brief (six paragraphs), and it appears that although it was the mother who successfully appealed, the children's lawyer supported the appeal, arguing that it was the children's section 7 Charter rights that had been infringed. Also noteworthy in that decision is the fact that the trial judge reserved on his decision for 393 days following the end of the trial, and then when he himself reconvened the hearing, refused to hear new evidence. The facts of that case are not at all apposite to the facts of this case.

[119] Returning to the two-part test set out in section 7 of the Charter, it is helpful to also consider the case of Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307. Although this was not a child protection case, the Supreme Court of Canada set out the test for whether, in a given case, a section 7 Charter breach has occurred. Beginning at paragraph 57 (and following), the Court stated [my emphasis]:

57. Not all state interference with an individual's psychological integrity will engage s. 7. Where the psychological integrity of a person is at issue, security of the person is restricted to "serious state-imposed psychological stress" (Dickson C.J. in Morgentaler, supra, at p. 56). I think Lamer C.J. was correct in his assertion that Dickson C.J. was seeking to convey something qualitative about the type of state interference that would rise to the level of infringing s. 7 (G. (J.), at para. 59). The phrase "serious state-imposed psychological stress" delineates two requirements that must be met in order for security of the person to be triggered. First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state. Second, the psychological prejudice must be serious. Not all forms of psychological prejudice caused by government will lead to automatic s. 7 violations. These two requirements will be examined in turn.

58. In G. (J.), Lamer C.J. found direct state interference with the psychological integrity of the parent, describing the government action in that case as "direct state interference with the parent-child relationship" (para. 61). Later, at para. 66, Lamer C.J. referred to a child custody application as "an example of state action which directly engages the justice system and its administration" (emphasis added). He stressed that not every state action which interferes with the parent-child relationship would have triggered s. 7.

59. Stress, anxiety and stigma may arise from any criminal trial, human rights allegation, or even a civil action, regardless of whether the trial or process occurs within a reasonable time. We are therefore not concerned in this case with all such prejudice but only that impairment which can be said to flow from the delay in the [particular proceeding before the court]. It would be inappropriate to hold government accountable for harms that are brought about by third parties who are not in any sense acting as agents of the state.

60. While it is incontrovertible that the respondent has suffered serious prejudice in connection with the allegations of sexual harassment against him, there must be a sufficient causal connection between the state-caused delay and the prejudice suffered by the respondent for s. 7 to be triggered. In Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 447, Dickson J. (as he then was) concluded that the causal link between the actions of government and the alleged Charter violation was too "uncertain, speculative and hypothetical to sustain a cause of action". In separate concurring reasons, Wilson J. also conveyed the need to have some type of direct causation between the actions of the state and the resulting deprivation.

[120] To summarize, in order to satisfy the first part of the test, the father must demonstrate a "sufficient causal connection between the state-caused delay and the prejudice suffered" and that the delay he has complained of in this case has had a "serious and profound effect" on his psychological integrity, as objectively assessed.

[121] First, was the delay complained of by the father in this case caused by the state? The state in this case is represented by this court, as well as by the society. [39] In setting future trial dates beyond February 5, 2014, the court's own calendar was unquestionably one of the considerations which I took into account. So too was the schedule of the society and of its counsel. Additionally, as I noted earlier, the impact of Rule 2 and the need to consider the scheduling of the court's other cases, was a significant factor in setting future trial dates.

[122] However, I also took into account the availability of both mother's counsel, as well as counsel for the two children. As I noted in my endorsement dated November 29, 2013, all counsel in this case provided me with a chart of their own prior commitments, including trial commitments, religious holidays, vacations, and so on. It must be remembered that at the Trial Management Conference on August 1, 2013 and at the beginning of trial on October 7, 2013, there was never any thought on the part of these counsel that the trial would go beyond the eventually-scheduled conclusion date of November 29, 2013. Counsel had the right – and indeed the obligation – to make commitments to other clients in respect of scheduling other trials. In my opinion, they also had the right to book vacations with their families; and of course, it should go without saying that religious holidays are an absolute entitlement.

[123] Accordingly, when it became apparent to all parties in November that far more trial time would be required, it is understandable that all parties and their counsel would, by then, have booked many dates into the future.

[124] In Huron-Perth Children's Aid Society v. M.(T.S.) et al., supra, the court considered the question of delay in deciding whether to extend timelines and stated at paragraph 21 [my emphasis]:

I ascribe no particular blame to any of the parties to the action as it seems to me all parties, for whatever reason, allowed this proceeding to go at its own pace.

[125] I return to my earlier comments about the Trial Management Conference, and the scheduling issues discussed at that Conference. The parties had been given multiple weeks for trial, time which I advised the parties to use wisely as any further trial dates would not be available until well into 2014. The father's counsel raised no objection to that state of affairs. Moreover, as I noted earlier, it was father alone, who sought an adjournment of the proposed November trial dates at that Trial Management Conference, a request which I denied.

[126] How can father complain of delay, first, when he knew in advance what the available court dates were and did not object to those dates and, second, in the context where he himself sought an adjournment having knowledge of this state of affairs, in particular, knowing that any delay would inevitably lead to an adjournment of the trial well into 2014? To later raise the issue of delay, as the father has done in this case, would seem to be a somewhat inconsistent position to take.

[127] In response, then, to the question whether the delay was state-caused, the answer must be yes, in part, but in only in part. The delay must also be attributed to the other factors discussed above, including father himself.

[128] I find that whatever the delay is beyond February 5, 2014, the evidence before the court is that the delay is not solely attributable to the state. I also find that the father's own actions, as discussed above, lead the court to conclude that delay was of little concern to the father prior to his launching of this Motion.

[129] Notwithstanding the father's failure to establish that the delay beyond February 5, 2014 is solely attributable to the state, I will consider also whether that delay has caused him "serious psychological stress", as objectively assessed.

Serious and Profound State-Imposed Psychological Stress?

[130] In support of this Motion, the father filed three affidavits, one dated December 6, 2013, another dated December 27, 2013, and the third dated January 19, 2014. In total, those three affidavits contain 283 paragraphs.

[131] In the first affidavit, "Part One" is entitled "The Children not seeing me more regularly is contrary to their best interests". [my emphasis] "Part II" of that affidavit is entitled "Children not seeing me is harmful to them" [my emphasis] "Part III" is entitled "My evidentiary reasons for the belief that the process of delay is connected with interfering with the children's best interests and their relationship with me" [my emphasis] And "Part IV" is entitled "intervention under the Charter of Rights and Freedoms".

[132] As the above headings in his affidavit suggest, the father's complaints primarily reference the children, and the impact which he alleges the trial is having on the children themselves. Much of the complaints have to do with disclosure issues arising prior to and during the course of the trial, issues which the court continues to address as this trial unfolds. Much of the other complaints pertain to access issues which were addressed on a temporary basis by Justice Sherr – twice – and which I have clearly stated I will not interfere with during the course of the trial. [40]

[133] None of the 124 paragraphs in that affidavit address the "serious and profound effect" of the psychological stress this trial has had on the father, or the causal connection between the delay and this effect (which he did not allege).

[134] In the father's second affidavit dated December 27, 2013, there are three Parts. "Part One" is entitled "the withheld disclosure". "Part II" is entitled "The escalating access issues". "Part III" is entitled "Children not seeing me is harmful to them [my emphasis], as is the delay in the trial, which prevents them from receiving any help or protection from harm".

[135] There is nothing in "Part One" which purports to address whether father has suffered "serious and profound" psychological stress, nor is there any nexus drawn between the alleged delay and any such stress.

[136] Part II of the affidavit once again raises the ongoing access concerns that father has raised at various points throughout this trial. In that section of his affidavit, the father discusses what he alleges are the children's views and preferences and their best interests. But this in part is what this trial is about and what this trial will have to consider at the conclusion of trial and once all of the evidence has been adduced; this is more particularly so because the mother's affidavit sworn in this Motion deposes to facts which conflict with the father's assertions. And, not surprinsingly, the society also takes a very different view of the facts deposed by the father, regarding what is in the best interests of the children. Father makes statements like "It is emotionally traumatizing" for the children, and "the process of being heard and advancing my case concerning the children's best interests is becoming a traumatic event for them and for me, because the delay is causing sufficient harm as to affect the result". While the last part of that statement does refer to the father himself, it is the only place in Part II which uses even a bare adjective purporting to reference the stress on the father.

[137] Part III of the affidavit focuses on what father alleges is deteriorating behaviour on the part of the children. He refers to what he says are the wishes of the children. He also accuses the mother of acting contrary to the children's best interests, something which the mother specifically denies in her own evidence filed in this Motion.

[138] Once again, the father fails to focus on his psychological stress, and to explain why that stress is "serious and profound".

[139] The father's third affidavit is sworn January 19, 2014. There are numerous headings in that affidavit – "Cross-examinations", "Mr. Schuman's availability in December", "Ms. Kirkland-Burkes notes", "The children's preferences", "timelines of the Constitutional motion", "Mr. Schuman is Compliant with Court Orders", "Counselling for the Children", "Conversation about money with the kids", "Objections Chart" and, finally, "The Effect of the Trial on Me". For the first time in any of the three affidavits, the father turns his attention in the last paragraph (and sub-paragraphs) to the purported impact of the trial on him, rather than the children.

[140] However, a closer look at those complaints again reveals the father's concerns about access, his concerns about the society acting unfairly in supervising his access, what father says the children want (eg. The child "begged me to get him professional help"), and the society and the mother's failure to give the father information about how the children are doing. Much of this refers to facts which are denied either by the society or by the mother, or both. The thrust of father's expressed concerns is a significant part of what remains to be determined in this trial. The court simply cannot make any determinations about these various matters while the trial is still ongoing, and all of the evidence has yet to be adduced.

[141] It is significant that in all of the father's affidavits, the concerns that he expresses are primarily connected to what children supposedly want, how the children are supposedly suffering and how the children are supposedly impacted by the scheduling of this trial. And yet, none of these expressed concerns about the children are echoed by the children themselves, through their legal counsel. In that respect, father's concerns, as he has expressed them in his affidavits, amount to a solitary voice in the wilderness.

[142] The father concludes this portion of his affidavit with:

While this trial is going on, I cannot focus on anything else. My life is on hold. I cannot live normally. The longer it drags on, the longer I live on in some strange alternate reality where very little makes sense to me. The longer it drags on, the harder it seems it will be for me, and my sons, to return to normal.

[143] Unquestionably, child protection trials are almost always stressful for parents. That is to be expected. It is particularly so when the society has intervened and placed a child in foster care, and is moving toward adoption, thereby potentially severing all ties between the biological parents and the child. One would normally expect this latter category of case to be the most stressful of all for parents.

[144] However, that is not the present case. The children are not in foster care; there is no present intention by the society to make the children wards of the state. The society has no present intention of severing the connection between the children and their biological parents – either of them.

[145] And yet, it is still understandable that the father would be upset by having his access to the children supervised by the society, even where the children remain in the full time care and custody of the mother. In other words, even in those cases where the society is seeking the least intrusive order, as it is in this case, namely, a supervision order with a parent, some degree of stress and anxiety are to be expected.

[146] However, the burden rests with the father to demonstrate on a balance of probabilities that it is the delay per se, imposed by the state, that has had a "serious and profound effect on [his] psychological integrity", as objectively assessed.

[147] I am prepared to accept that father finds this proceeding difficult, even stressful. And it is logical to conclude that the longer the proceeding takes, the longer that emotional state of affairs may continue. Nevertheless, there is a qualitative difference between "stress" and "serious and profound stress". The burden rests with father to demonstrate the latter. In my view, he has failed to do so.

[148] The burden also rests with the father to demonstrate that if the stress rises to that level, there is a "sufficient causal connection" between the stress and the delay. The father has failed to demonstrate that, on a balance of probabilities, on the evidence before me.

[149] The burden also rests with the father to demonstrate that if the stress rises to the level of "serious and profound" and if he can demonstrate the necessary causal connection between that stress and the delay, that the attributable delay was also state-imposed. Again, in my view, as I have earlier discussed, the father has failed to prove this on a balance of probabilities. [41]

The Principles of Fundamental Justice

[150] If another court decides that I am mistaken in deciding that father has failed to meet the first of the two-part test, I turn to the second part of the test: If the delay is state-imposed, and if the delay does impair father's security of the person, father must then establish on a balance of probabilities that the state-imposed delay did not accord with one or more principles of fundamental justice.

[151] The essential principles of fundamental justice include the right to a fair hearing. And what is "fair" is dependent upon the particular case before the court. See R. v. Rodgers, 2006 SCC 15, [2006] 1 SCR 554.

[152] In the case of Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350 the Supreme Court of Canada had this to say about the issue of fundamental justice, at paragraphs 20 and following [my emphasis]:

Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceeding and the interests at stake. . . . The procedures required to meet the demands of fundamental justice depend on the context. . . . The question at the s. 7 stage is whether the principles of fundamental justice relevant to the case have been observed in substance, having regard to the context and the seriousness of the violation. The issue is whether the process is fundamentally unfair to the affected person.

[153] In Winnipeg Child and Family Services v. K.L.W. 2000 SCC 48, [2000] 2 SCR 519, the Supreme Court of Canada was called upon to consider whether there had been a violation of section 7 of the Charter. In that context, the Court considered what constitutes a fair hearing. At paragraph 123, the Court stated [my emphasis]:

In order to be fair, the hearing must involve reasonable notice with particulars to the parents, as well as an opportunity for them to participate meaningfully in the proceedings.

[154] And at paragraph 131, the Court continued [my emphasis]:

[when a state intervenes to apprehend a child from parents] the need for swift and preventive state action to protect a child's life or health in such situations dictates that a fair and prompt post-apprehension hearing is the minimum procedural protection mandated by the principles of fundamental justice in the child protection context.

[155] In G. (J.), supra, the Court noted that a fair hearing requires a "neutral and impartial arbiter" (paragraph 72). The parent must have the "opportunity to present his or her case effectively" (paragraph 73).

[156] With the understanding of what constitutes a fair hearing within the principles of fundamental justice, the question is whether in this case the father has been denied a fair hearing.

[157] In that regard, I must consider the following facts: Father has been represented throughout by experienced counsel. On three occasions following the initial apprehension of the children in July 2012, the court has held a hearing into the issue of temporary care and the issue of access. The first such hearing resulted in a temporary without prejudice order made by Justice Harvey Brownstone, immediately following the apprehension of the children, on July 30, 2012. The second order followed a lengthy temporary care and custody hearing before Justice Sherr on October 22, 2012, resulting in a 24-page, comprehensive judgment on October 24, 2012. The third hearing, on February 8, 2013, again before Justice Sherr, was at the father's request, seeking to vary Justice Sherr's earlier order. Once again, Justice Sherr heard full argument and gave oral reasons for his decision, finding that the father had failed to adduce sufficient evidence of a change in circumstances which would require a different access order to be made in the best interests of the children.

[158] Certainly, these various "post apprehension hearings" were "fair and prompt". There has been no suggestion otherwise. The unfairness alleged by father is the lack of promptness in respect of the scheduling of the second stage of this trial.

[159] In that respect I do not find it necessary to repeat my earlier discussion regarding the alleged scheduling delays. However, any Charter-based discussion needs to be contextual. And, as I explained earlier in my reasons, the scheduling of the balance of the trial was based on factors which I then took into account, and have discussed in these reasons.

[160] All of the allegations made by the society are contained in the society's Application and amended Application. In that respect, father has had reasonable notice of the case he is facing at trial. At the Trial Management Conference before me on August 1, 2013, father made no allegations that he had been denied procedural fairness, or that he did not know the particulars of the society's allegations in support of its request for a finding in need of protection, or the sought-after disposition of a supervision order.

[161] When I was assigned to be the trial judge, I became the third judge to be involved in the decision-making process in this Application. Has the father always had a "neutral and impartial arbiter" to preside over the various aspects of this case? The father has never suggested otherwise.

[162] All parties had input into the setting of the trial dates. The father has been permitted full and essentially unfettered cross-examination of the society's witnesses in the trial so far. On more than one occasion, the court has cautioned the parties to use the available trial time wisely, but beyond that the court has taken no steps to limit the father's ability to cross-examine the society's witnesses, some of whom he cross-examined for lengthy periods of time, including one society witness who father's counsel cross-examined over the span of three or four days.

[163] While the society's case is not yet concluded, the court has not told any of the parties that there will be limits placed on the presentation of either the society's case or, when the father's case is presented, his case. [42]

[164] I return, then, to the question of whether father has been deprived of any of the principles of "fundamental justice", mandated by section 7 of the Charter. Having regard to all of the foregoing, I am unable to agree with the father's assertion that he has been so deprived. [43]

[165] In the result, I conclude that the father has not been deprived of his section 7 Charter rights, and I dismiss that portion of his Constitutional Motion.

b. Section 15 of the Charter

[166] Section 15 of the Charter provides:

Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[167] The starting point for this discussion is the case of R. v. Kapp, 2008 SCC 41, [2008] 2 SCR 483, a decision of the Supreme Court of Canada. In that case, the Court stated that the purpose of section 15 is "combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping" (paragraph 24). The Court in Kapp set out a two-part test for determining whether an individual's rights under section 15 have been breached. The claimant must establish on a balance of probabilities both of the following (at paragraph 17):

1. Does the law create a distinction based on an enumerated or analogous ground?

2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

See also Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 SCR 396, which more recently enunciated the same two-part test (at paragraph 30).

[168] The father's factum references Quebec (Attorney General) v. A., 2013 SCC 5, as the case which more recently synthesizes the law in this area. At paragraph 186, the Court stated [my emphasis]:

The claimant must therefore prove on a balance of probabilities (a) that the law creates an adverse distinction based on an enumerated or analogous ground and (b) that the disadvantage is discriminatory because (i) it perpetuates prejudice or (ii) it stereotypes.

[169] The Supreme Court of Canada in Withler, supra, emphasized that not all distinctions, not all differential treatment, is discriminatory under the section 15 of the Charter. At paragraph 31, the Court stated [my emphasis]:

The two steps reflect the fact that not all distinctions are, in and of themselves, contrary to s. 15(1) of the Charter. . . Equality is not about sameness and s. 15(1) does not protect a right to identical treatment. Rather, it protects every person's equal right to be free from discrimination. Accordingly, in order to establish a violation of s. 15(1), a person "must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory".

[170] Turning to the first of the two tests which father must satisfy, can the father establish on a balance of probabilities that the law creates a "distinction based on an enumerated or analogous ground"?

[171] The enumerated grounds are "race, national or ethnic origin, colour, religion, sex, age or mental or physical infirmity". Clearly – and the father does not argue otherwise – the father's claim does not fall within one of the enumerated grounds. The question, then, is whether his claim falls within an analogous ground.

[172] The father claims that his situation, namely, that of a parent who is responding to a child protection application, is an analogous ground.

[173] In support of that proposition he cites Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, for the statement at paragraph 6:

I think it is sensible to articulate the basic principles under s. 15(1) as guidelines for analysis, and not as a rigid test which might risk being mechanically applied.

[174] In other words, father relies on Law for the court to take a somewhat flexible approach in applying the necessary test underpinning the principles of section 15 of the Charter.

[175] The father also cites Peter Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Carswell, 2007) at page 1148, wherein the author states:

What does warrant a constitutional remedy is the claim that a law has treated an individual unfairly by reason of a condition over which the person has no control.

[176] So, for example, when one examines the enumerated grounds – race, national or ethnic origin, colour, religion, sex, age or mental or physical disability – it is apparent that the purpose of section 15 of the Charter is to protect against discrimination for individual characteristics which are essentially immutable, characteristics about the person over which that person has virtually no control, or changeable only at unacceptable cost to personal identity. [44] This is what Professor Hogg means when he refers to a "condition over which the person has no control". See Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203.

[177] The father then argues that his position as a respondent in a child protection proceeding is something over which he has no control, something which is immutable or changeable only if the father were to "acquiesce with the society's allegations that the children are in need of protection from him, should live with [the mother], and continue to have extremely limited access to him". He goes on to say that if he were to so acquiesce, he would be "doing this at an unacceptable cost to his personal identity".

[178] However, Professor Hogg continues, by stating [my emphasis]:

The limitation of s. 15 to listed and analogous grounds restricts judicial review to laws that distinguish between individuals on the basis of their inherent attributes as opposed to their behaviour. Section 15 has nothing to say about laws that make special provision for those who have committed a crime, made a will, entered into a contract, become insolvent, manufactured food or drugs, joined the legal profession, purchased a taxable good or service, etc. It is true that individuals may claim to be treated unfairly by the law for conditions that are their own responsibility, but this kind of claim even if fully justified does not warrant a constitutional remedy. [45]

[179] On this analysis, being a respondent in a child protection proceeding is not an immutable characteristic which is protected by section 15 of the Charter. Being a respondent in a child protection proceeding is about "behaviour". This child protection proceeding was commenced by the society because the society alleged that the mother and the father behaved in a certain way that either harmed the children, or placed the children at risk of harm. Whether that behaviour is eventually made out so that the children are found to be in need of protection, is something which will have to await the completion of the trial.

[180] As Professor Hogg observes, section 15 has "nothing to say about laws that make special provision" for an individual's behaviour. While I am not suggesting that the behaviour of a parent in a child protection proceeding is equivalent to a person who is accused of committing a crime (one of Professor Hogg's examples), in my view, for the purpose of a section 15 analysis, it is analogous, in that it is the individual's behaviour in both cases (as alleged by the state or, in this case, the society), which then gives rise to the legal proceedings which impact on that individual.

[181] The society did not commence its Application because the father is a male, is of a particular age, is Jewish, is a Canadian (or a citizen of another country), and so on. This Application is not about any of father's personal characteristics. Rather, it is about how he (and mother) behaved, according to the society's allegations – which may or may not be ultimately proved at trial.

[182] And, despite the court's urgings in Law, supra, that some degree of flexibility in the court's analytical process is necessary, because the Application is about behaviour, rather than personal characteristics, I am forced to conclude that the father is not entitled to any relief under section 15 of the Charter. The father fails the first part of the two-part test, namely, there is no distinction based on either an enumerated or an analogous ground.

[183] Nevertheless, I will consider the second part of the test, which requires the father to demonstrate that the distinction creates a disadvantage by perpetuating a prejudice or stereotyping.

[184] In his factum, the father states [my emphasis]:

[the father] is a respondent father in a child protection hearing. He and the Children are being separated from each other against their will for a prolonged period of time. As such he is being discriminated against as compared to other parents involved with court proceedings involving their children and separated from their children, as well as compared to other people involved in court proceedings.

[185] The first thing to note is the statement that the children are being separated from the father against the children's will. While father may allege this to be the case, this is something which has yet to be determined in this trial, at the conclusion of all the evidence. It is not a fact simply because the father alleges it to be one. And even if it turns out that this is a correct statement of fact, a child's preferences insofar as which – if either – parent the child wishes to live, is only one of 13 different considerations a court must take into account at the conclusion of a trial, in determining what is in the best interests of that child. [46]

[186] In his attempt to demonstrate that the "legislative impact of the law is discriminatory", the father argues that one of the comparator groups is the Askov [47] principles as applied to the provisions of the Youth Criminal Justice Act. Askov was about a breach of the claimant's section 11(b) Charter rights, specifically, the right to be tried within a reasonable time. As I noted earlier, the courts have held that section 11(b) rights cannot be imported into civil cases. The discussion about section 11(b) rights need go no further than that.

[187] Second, by referencing the Youth Criminal Justice Act, the father is drawing a comparison between provisions of a federal statute with provisions of provincial statute, namely, the CFSA. In Penner v. Danbrook, [1992] S.J. No. 257 (Sask. C.A.), had this to say when a claim is made under section 15 of the Charter, by comparing federal legislation with provincial legislation [my emphasis]:

The distinction was based solely on a provincial legislature and the federal Parliament exercising their respective legitimate jurisdictional powers in different ways. Since the division of powers is a part of the constitutional scheme, unequal treatment stemming solely from legitimate exercise of those powers cannot be the subject of challenge only on the basis that it creates distinctions between some of those subject to the legislation.

[188] In other words, a section 15(1) Charter claim cannot be based upon the existence of a distinction between federal and provincial legislation. Such a distinction does not amount to discriminatory legislative treatment for the purpose of a section 15 Charter analysis.

[189] The father then goes on to submit that different provisions within the CFSA, or the regulations thereunder set different timelines in order to achieve particular objectives. For example, section 61(7) of the CFSA sets out a process for reviewing foster placements, and confers certain rights upon the foster parents, and sets certain timelines for the determination of these rights.

[190] The father also references the secure treatment provisions of the CFSA, more specifically, that the court cannot order a child to be committed for more than 180 days, pursuant to section 118(1) of the CFSA.

[191] The father also notes the strict timelines which are provided for in the adoption provisions set out in section 144 of the CFSA.

[192] Further, the father draws a comparison between the present case and the rules under the Child and Family Service Review Board Rules of Procedure, dealing with the appeal of a board's decision to expel a student from his or her school, specifically, that in the event the student does appeal the expulsion, the appeal is to be heard within 30 days after the appeal is launched.

[193] The father's references to these various legislative provisions, and the timelines which are provided for therein, is an attempt to demonstrate that he is being discriminated against under the CFSA because he is being separated from his children for a prolonged period of time, as compared to parents, or other persons, in the aforementioned legislative comparator groups, all of which are contained within the same legislation, namely, the CFSA.

[194] However, it is not discriminatory for the legislature of a province to create different legislative schemes, even within the same piece of legislation, which are directed at different purposes. The objectives of each legislative provision are different, and it is for that very reason that a claimant cannot compare one provision with another provision in the same legislation in order to ground a claim under section 15(1) of the Charter.

[195] This concept can be better understood by examining two cases. The first, in chronological order, is Sagkeeng Child and Family Services v. A.R.W. 2006 MBQB 256, [2006] M.J. No. 415 (Man.Q.B.). Part of the claimant's argument for alleging a breach of Charter rights was based on comparing different legislative schemes in an attempt to show that she was being discriminated against. Beginning at paragraph 92 (and following), the Court stated [my emphasis]:

. . . any distinction made between mentally disabled parents subject to child protection proceedings and others, in this case, parents subject to custody proceedings under The Family Maintenance Act or Divorce Act, is not based on the mother's mental disability. It is based on the need to protect the child, as opposed to the need to decide which parent can care best for the child. . . . . In child protection proceedings, a permanent order is made when neither parent can adequately care for the child. In custody proceedings, the court grants custody to one or both parents because one or both of them are able to care for the child. . . . I agree with the submission of the Attorney General that the mother's challenge does not meet the first part of the Law test, becajuse she cannot show a distinction that is based on a personal characteristic. Her claim fails at this stage of analysis. . . .I conclude that s. 15 of the Charter does not apply to the mother's claim. The purpose of s. 15 is not to ensure that all legislation treats individuals the same. The legislation being compared has different objects.

[196] The next case is Wareham v. Ontario (Minister of Community and Social Services), [2008] O.J. No. 166 (S.C.J.). [48] In that case, the claim for discrimination was based on the delays involved in processing claims under the Ontario Disability Support Program. The claimant argued that the comparator was the processing of claims for Ontario Works benefits under the Workplace Safety and Insurance Act, S.O. 1997, c. 16, Schedule A. Beginning at paragraph 61 (and following) the Court had this to say [my emphasis]:

In order to succeed, the plaintiffs "must show unequal treatment under the law – specifically that they failed to receive a benefit that the law provided, or [were] saddled with a burden that the law did not impose on anyone else" . . . Inherent in the concepts of inequality and discrimination is a comparison, or contrast, between the incidence of benefits and burdens in respect of the plaintiffs, and of some other similarly situated members of the community . . . . It follows that the identification of an appropriate comparator group is an essential preliminary to an inquiry into the existence of differential treatment . . . . An appropriate comparator group must be similarly situated with respect to the benefit that is withheld from the plaintiffs, or the benefit, or other subject matter, on which the latter are subjected to a burden. . . . The legislative purpose and the context in which benefits are provided under OW and WSIA are, in my opinion, materially different to those of the ODSPA even though the applicants under each of the programs share the personal characteristic of seeking financial support under a statute. . . . I agree with the submission of counsel for the Crown . . . [namely] It is not discriminatory for the government to create programs that grant different benefits and provide different mechanisms for accessing those benefits. . . . The comparison to entirely different legislated programs does not give rise to a s. 15 challenge, as it is not based on a comparator group of persons who are in receipt of the desired benefits.

[197] The father has argued that he is being discriminated against because the timelines provided for in other legislation, and in other sections of the CFSA are materially different than the timelines he is being subjected to in the trial of this case. However, on the basis of the foregoing case law, this kind of comparison is not apt because each statute and each provision within a given statute [49] is intended to accomplish a specific objective, an objective that is different than this trial which is taking place under Part III of the CFSA.

[198] Furthermore, the father must establish that he has been discriminated against under section 15 of the Charter in that he either did not receive a benefit which is accorded to others similarly situated, or that he has been subjected to a burden not imposed on others, similarly situated. In Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, at paragraph 27, the Court stated [my emphasis]:

In order to succeed [in a claim under section 15 of the Charter] the claimants must show unequal treatment under the law – more specifically that they failed to receive a benefit that the law provided, or was saddled with a burden the law did not impose on someone else.

[199] The father in this case has failed to demonstrate that the relevant provisions of the CFSA which deal with hearings under Part III, confer on other parents a benefit which he has not received, or that he has been subjected to a burden which the law does not impose on other, similarly situated parents. In short, he has failed to discharge the second of the two-part test, namely, that he has been discriminated against.

[200] Accordingly, I conclude that the father has failed to meet both parts of the two-part test under section 15 of the Charter, and I must therefore dismiss that portion of his Constitutional Motion.

Issue # 3 – The Remedies Sought by Father in the Event of a Charter Breach

[201] Should another court conclude that I am incorrect in holding that there has been no violation of either section 7 or section 15 of father's Charter rights, I will consider the remedies sought by the father. Section 24(1) of the Charter provides:

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[202] As I noted at the outset of these reasons, the father seeks various forms of relief and alternate relief, including an order that the trial be reconvened within 30 days of November 29, 2013 (or January 6, 2014) [50], and that the trial continue on consecutive days until completed or, in the alternative, the dismissal or stay of the Application, or placement of the children in the father's care, or certain specified changes to the manner in which the father's access takes place. The father says there is no evidence that the Attorney General cannot accommodate the court's schedule to implement the continuation of the trial in the manner requested by the father and, accordingly, the court can order the Attorney General to do whatever is necessary to ensure that the trial does recommence and continues in the manner requested by the father.

[203] For the reasons discussed earlier, this court is simply not in the position to continue the trial in the manner requested by the father. I explained in detail why the trial could not continue within the 30-day period following February 5, 2014. While that form of relief may be theoretically possible, it is not something which can be accommodated without doing a serious injustice to the other cases which I am case managing. In my view, it would be a remedy that is neither "appropriate" or "just in the circumstances".

[204] I have also explained why I did not schedule the trial to be heard on consecutive days, as requested by the father. Again, this kind of scheduling (or something similar) is not something which I consider to be either "appropriate" or "just in the circumstances".

[205] As to whether I can order the Attorney General to do whatever needs to be done to permit the court to accommodate the re-convening and continuation of the trial, I am unclear precisely what the sought-after order is in this regard. If the argument is that I can order the Attorney General to appoint another judge to come into the North Toronto Family Court and preside over the cases which are currently assigned to me as the case management judge, no authority for the court's ability to make such an order is cited by the father.

[206] However, even if I had the authority to make such an order, it would defeat entirely the principle of single-judge case management, by which one judge only manages each of his/her cases. And to make an order which would effectively undercut single-judge case management would constitute a marginalization of the other 567 cases which I manage. In other words, for the sake of the present case alone, the 567 other cases would have to pay what, in my opinion, would be an unacceptable price. I conclude that it would be wrong in principle to simply "hand off" my cases to another judge.

[207] In any event, there are only six courtrooms at this court location, and this courthouse already has seven judges in an attempt to deal with the heavy caseload that presently exists. [51] Adding another judge to this court location without the necessary physical plant and infrastructure would serve no purpose whatsoever.

[208] The father then seeks, in the alternative, a dismissal of the Application, or a stay of the proceeding. The net effect of such a remedy would be the automatic return of the children to the father's care, jointly with the mother. [52] Returning the children to the father's care before a determination on the merits whether the children are at risk of harm in the care of their father would fly in the face of the paramount purpose of the CFSA, as provided for in section 1, namely, "to promote the best interests, protection and well being of children". It would also place the father's Charter rights ahead of the children's rights to be protected from harm.

[209] Furthermore, there has already been a judicial determination – twice – by Justice Sherr that it is in the best interests of the children that father's access be very restricted, and that his access be supervised by the society. This is the order which must remain in place, in the best interests of the children, until the trial is concluded on its merits, failing which the children may be exposed to serious harm.

[210] As part of this discussion, I return to the decision of the Supreme Court of Canada in G. (J.), supra, wherein the Court stated, at paragraph 101 [my emphasis]:

There are only two possible remedies a judge can order under s. 24(1) to avoid a prospective [Charter] breach . . . [an order for government funded counsel, where that was the issue in G. (J.) or] a stay of proceedings. A stay of proceedings is clearly inappropriate in this case, as it wold result in the return of the children to the appellant's custody. Children should not be returned to their parent's care when there is reason to suspect that they are in need of protection. Indeed, this would run contrary to the purposes of [the relevant child protection legislation].

See also the decision of the Ontario Court of Appeal in R. v. Imona-Russell, 2011 ONCA 303, 2011 CarswellOnt 2608, at paragraph 34.

[211] In Children's Aid Society of Hamilton v. E.O., 2009 CarswellOnt 8125 (S.C.J.), Gordon J. was faced with a 33-month delay between the date of apprehension and the trial. During this period of time the child remained in foster care. Justice Gordon made a Crown wardship order, although noting at paragraph 244 [my emphasis]:

. . . In a child protection case, the ultimate test is the best interests of the child. Returning him to his parents, as a result of mistakes made by the society, is not appropriate. As Fleury J. said in Children's Aid Society of Hamilton -Wentworth v. E.D., [1999] O.J. No. 5779 (Ont. Gen. Div.), at para 8:

To penalize the society [53] by returning a child to a situation of danger would be the most ridiculous result that I can imagine. It would bring the entire administration of justice into disrepute.

[212] Simply put, this particular sought-after remedy by the father, is not a possible outcome in the event of a breach of Charter rights.

[213] The father seeks another alternative remedy of having his access supervised by an external agency. This particular request is predicated on the father's assertion that the society has been abusing or mishandling its court-ordered obligation to supervise the father's access, and that this alleged abuse by the society should not be permitted to continue to the conclusion of this lengthy trial.

[214] The difficulty with this form of relief is two-fold. First, there is a temporary order in place, imposed by Justice Sherr, that the society supervise the father's access. Justice Sherr specifically found in his reasons delivered February 8, 2013 that [my emphasis]:

It is in the best interests of the children to keep access in society discretion.

[215] It must be remembered that this was the second time Justice Sherr was asked to consider the father's access. As I noted earlier, he had previously issued reasons on October 24, 2012, deciding that father's access was to be supervised by the society. Again, returning to that second occasion on February 8, 2013, when father asked Justice Sherr to reconsider his earlier access order, Justice Sherr specifically found [my emphasis]:

That this discretion is being exercised responsibly in difficult circumstances

[216] Despite having two opportunities before Justice Sherr to obtain an access order which was favourable to him, the father once again attempted to vary the temporary access in a motion before me in mid-trial, on November 13, 2013, as I noted earlier in these reasons. [54]

[217] There can be no doubt that the issue of father's access, including how much contact he should have with the children and what level of supervision, if any, should be imposed, is very much an issue to be determined in this trial. However, since we are only part-way through the trial, and because considerable evidence has yet to be heard, the court cannot make any decisions about whether or not it is appropriate to change father's access at this stage of the proceedings, prior to the conclusion of the trial.

[218] Despite the father's insistence, the court is certainly not in a position to conclude that the society has been abusing its supervisory role in administering the father's access. Although the father says this is happening, the society resolutely denies it. And as I stated earlier, the children's lawyer is opposed to the father's position. In the absence of evidence, on a balance of probabilities that the society is failing to adequately discharge its responsibilities it would be wrong in principle for the court to intervene by altering the entire scheme of access by which the father is having contact with the children.

[219] Second, the society is mandated by statute to perform its duties, one of which includes the supervision of access. [55] The society, as the applicant, is a party to this proceeding and is ultimately answerable to the court in the event it fails to comply with its statutory obligations. As one of the named parties in this case, the society is subject to many kinds of court orders [56], both at the pre-trial stage, as well as during the course of trial. And, at the conclusion of trial the society, as a party, is also potentially subject to court-ordered costs in specified circumstances. None of these considerations apply to the outside private agency which the father is proposing. For these reasons it would be inappropriate for the court to remove from the society its statutory obligation to supervise father's access, and transfer that obligation to an outside private agency. Again, it is the children themselves who would potentially be put at risk of harm were the court to make such an order.

[220] In the result, I conclude that this sought-after remedy by the father, in the event of a Charter breach would be neither "appropriate" or "just in the circumstances".

Part V: Conclusion

[221] For the foregoing reasons, I make the following order:

1. It is within this court's jurisdiction and the exercise of its discretion to schedule the second stage of the trial in the manner in which it has been scheduled.

2. In response to the father's question whether his section 7 Charter rights have been violated, I conclude that those rights have not been violated.

3. In response to the father's question whether his section 15 Charter rights have been violated, I conclude that those rights have not been violated.

4. In response to the specific requests sought by the father for the various remedies pursuant to section 24(1) of the Charter, I conclude that none of the sought-after remedies would be "appropriate" and "just in the circumstances" of this case.

[222] Accordingly, I dismiss the father's Constitutional Motion in its entirety.

[223] The Attorney General, as intervener, did not seek costs in this proceeding. Should any of the other parties seek costs, I will require those parties to await the outcome of the trial, at which time I will give directions for any costs submissions.

Justice Robert J. Spence

March 10, 2014