WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order,
[1] . . .
[2] (c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) Prohibition: identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
Court File No.: C70998/12 Date: 2014-11-04
ONTARIO COURT OF JUSTICE
BETWEEN:
CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO
Marshall Matias, for the APPLICANT
APPLICANT
- and -
D.L. and A.F.
The Respondent, D.L., acting in person
RESPONDENTS
The Respondent, A.F. not attending
Mary Kodric, for the OFFICE OF THE CHILDREN'S LAWYER, on behalf of the child, A.L.
Heard: November 3, 2014
Justice: S.B. Sherr
Endorsement
Part One - Introduction
[1] The Catholic Children's Aid Society of Toronto (the society) has brought a motion seeking an order finding that T.O.M. (the natural father of A.L.) is not a parent of A.L. (the child), within the meaning of the Child and Family Services Act (the Act).
[2] This motion was supported by the respondent, D.L., (the child's mother) and counsel for the Office of the Children's Lawyer, on behalf of the child.
[3] The respondent A.F. is the child's step-father. He did not attend at court and has not filed an Answer/Plan of Care.
[4] The court orally dismissed this motion with brief reasons when it was argued on November 3, 2014 and indicated that written reasons would follow. These are the reasons.
Part Two - Background
[5] On June 4, 2014, the society issued a protection application seeking a finding that the child, who is now 15 years old, is in need of protection. The society seeks a disposition that the child be made a society ward for six months, with access to the respondents to be in the society's discretion.
[6] The child has been in the care of the society since a temporary care and custody order was made by Justice Carolyn Jones on June 4, 2014.
[7] The court was advised on November 3, 2014 that the mother and the society had executed a Statement of Agreed Facts that would result in the child becoming a society ward for six months.
[8] The society, mother and counsel for the child wanted the court to proceed with final orders on November 3, 2014. They asked to note the stepfather in default. The society brought this motion with respect to T.O.M. If granted, it would be free to proceed with the final orders.
[9] The lone issue on this motion was whether the court could make the finding that T.O.M. is not a parent of the child as defined by the Act.
Part Three – The Motion
[10] The society relied on the affidavit of their family service worker. This affidavit sets out that the worker was advised by the mother that:
a) T.O.M. is the child's biological father.
b) T.O.M. last had contact with the mother when she was two months pregnant with the child.
c) T.O.M.'s last known address was a prison in Atlanta, Georgia.
d) T.O.M. has never had any contact with the child.
e) T.O.M. has never paid child support for the child.
f) The mother does not know where T.O.M. lives.
g) The mother cannot recall registering T.O.M. as the father on the child's Statement of Live Birth.
h) The mother was not cohabiting with T.O.M. when the child was born, as she had returned to Canada.
i) The mother was married to T.O.M. at the time the child was born, but they were legally separated.
[11] It is the last statement in paragraph 10 above that creates the difficulty on this motion.
Part Three – Discussion
[12] Subsection 39(1) of the Act mandates that the following are parties to a child protection proceeding:
- The applicant.
- The society having jurisdiction in the matter.
- The child's parent.
- Where the child is an Indian or a native person, a representative chosen by the child's band or native community.
[13] The definition of parent is set out in subsection 37(1) of the Act. This subsection reads as follows:
"parent", when used in reference to a child, means each of,
(a) the child's mother,
(b) an individual described in one of paragraphs 1 to 6 of subsection 8(1) of the Children's Law Reform Act, unless it is proved on a balance of probabilities that he is not the child's natural father,
(c) the individual having lawful custody of the child,
(d) an individual who, during the twelve months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of his or her family, or has acknowledged parentage of the child and provided for the child's support,
(e) an individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child, and
(f) an individual who has acknowledged parentage of the child in writing under section 12 of the Children's Law Reform Act, but does not include a foster parent; ("père ou mère")
[14] In paragraphs 5 and 6 in Children's Aid Society of Algoma v. T.E.S., [2012] O.J. No. 3295, Justice John Kukurin wrote the following about the statutory definition of "parent" in the Act:
5 Although the ordinary understanding of the word "parent" is a child's biological mother and biological father, this is not the meaning that the word "parent" has for purposes of Part III of the CFSA. In fact, there is a lengthy and comprehensive definition of who is a "parent" for purposes of child protection proceedings contained in s.37(1) of the CFSA.
6 The section 37(1) definition includes numerous categories of parenthood in relation to a child for purposes of child protection cases. While a child's mother is always a parent, a child's biological father is not necessarily so. And sometimes, a biological father is a parent, even though his only connection to the child is limited to sperm donor prior to conception.
[15] The evidence excludes T.O.M. as a parent under all clauses but clause (b) in the definition of parent, as set out in subsection 37(1) of the Act. Under clause (b), it is necessary to examine if he is an individual described in one of paragraphs 1 to 6 of subsection 8(1) of the Children's Law Reform Act. This subsection reads as follows:
Presumption of paternity
(1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:
The person is married to the mother of the child at the time of the birth of the child.
The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.
The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.
The person has certified the child's birth, as the child's father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.
[16] The definition of parent states that to qualify as such, T.O.M. only has to fit under one paragraph of subsection 8(1) of the Children's Law Reform Act. If T.O.M. fits under any of these paragraphs, the only exception to finding him to be a parent, is if the society can prove on a balance of probabilities that he is not the child's natural father.
[17] The critical paragraph in this case is paragraph 1 of subsection 8(1) of the Children's Law Reform Act. T.O.M. was married to the mother at the time of the birth of the child.
[18] Since the evidence establishes that T.O.M. is the child's natural father, the exception discussed in paragraph 16 above does not apply.
[19] T.O.M. is a parent of the child pursuant to this statutory pathway.
[20] The society submitted that the court should consider, as an exception to the definition of parent, that although they were married, the mother and T.O.M. were separated when the child was born. This is not a relevant consideration. If it were, it would have been specifically set out as an exception to the definition of parent in the Act.
[21] If a person is a parent as defined by the statute, this court has no jurisdiction to find otherwise.
Part Four - Conclusion
[22] The society's motion asking the court to find that T.O.M. is not a parent of the child within the meaning of the Act is dismissed.
[23] T.O.M. is a statutory party pursuant to subsection 39(1) of Act and shall be added to the case as a party. The style of cause should be amended accordingly.
[24] In the event that T.O.M. cannot be located, the society has remedies to address this under the Family Law Rules.
[25] The matter is returnable on December 23, 2014 at 10:00 a.m. for a case conference. The society does not have to wait until then to address any service issues and should address any service issues by an over-the-counter Form 14B motion.
Justice S.B. Sherr
Released: November 4, 2014
