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, R.S.O. 1990, c. C-11, as amended, and is subject to 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 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.

45.— (8) Prohibition on publication of identifying information.

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.

45.— (9) 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) Offence.

A person who contravenes subsection 45(8) (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 Information

Windsor Registry No.: 327/12

Date: 2017-02-06

Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society, Applicant

— AND —

J.D., P.E., D.B. and T.B., Respondents

Before: Justice Barry M. Tobin

Heard: In chambers on basis of written submissions

Endorsement inscribed on: 6 February 2017

Counsel

• Mark L. Hurley — counsel for the applicant society
• Maria Fernandes — counsel for the respondent mother, J.D.
• Sharon L. Murphy — counsel for the respondent father, P.E.
• Robert J.M. Balance — counsel for the respondent maternal grandparents D.B and T.B.

Endorsement

JUSTICE B.M. TOBIN (endorsement):

[1] All the disposition issues within this status review application are the subject of a final order, except for that of access by the respondent P.E. and non-parties, L.E. and B.F. to the child, T.B.E.E., born on […] 2012 ("the child").

[2] This is the respondent P.E.'s motion for directions regarding "the court's jurisdiction to make an access order in respect of L.E. and/or B.F."

1: LITIGATION HISTORY

[3] The society brought a status review application that was issued 2 September 2014. The respondents named were: J.D., the child's mother ("the mother"); P.E., the child's father ("the father"); D.B., the child's maternal grandmother; and T.B., the child's maternal grandfather ("the maternal grandparents").

[4] The society brought a summary judgment motion on all issues. It was argued on 21 and 22 July 2016 before Justice Douglas W. Phillips.

[5] By order of the court dated 22 July 2016, the child was found to be in continued need of protection pursuant to subclause 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended ("the Act"). The court ordered that the child be placed in the care and custody of the maternal grandparents pursuant to s. 57.1 of the Act. The court also defined the mother's access to the child.

[6] The issue of access by the father and his sister, L.E., ("the paternal aunt") and her partner, B.F., ("the paternal uncle") was directed to be tried.

[7] The paternal aunt and paternal uncle are not parties to this proceeding.

[8] At the trial management conference held before me, it was not made clear who or how the access claim of the paternal aunt and paternal uncle would be advanced.

[9] In his answer and plan of care, the father sought an order placing the child in the care of the paternal aunt and paternal uncle. In the alternative, the father sought an order that they be "permitted to have liberal and generous access to" the child.

[10] The father brought a motion first returnable on 8 January 2015 in which he sought a temporary order granting access to the child by the paternal aunt and paternal uncle and an order adding the paternal aunt as a party.

[11] The father's request to have the paternal aunt added as a party was dismissed by Justice Phillips on 9 April 2015. In his reasons, Justice Phillips ruled that the paternal aunt's plan for access was to go through the father's case. When the father brought another motion requesting that the paternal aunt be granted party status, it was dismissed on the basis that the issue had already been determined.

[12] By order of Justice Phillips dated 4 March 2016, access to the child by the paternal aunt and paternal uncle was directed to take place once per month supervised by the society.

[13] The father served and filed an amended answer and plan of care. The relief he now seeks is an order, under section 58 of the Act or, in the alternative, under section 21 of the Children's Law Reform Act, for access to the child for himself and the paternal aunt and paternal uncle.

[14] This trial of the access issue is now scheduled to be heard beginning on 6 March 2017.

2: ISSUE AND POSITION OF PARTIES

[15] The issue to be resolved by this motion is if, and how, an access order can be made with respect to the paternal aunt and paternal uncle.

[16] The position of the father is that he can include a request for access by the paternal aunt and paternal uncle as part of his claim. The court has authority under section 58 of the Act to make the order sought, including to a non-party.

[17] The maternal grandparents' position is that an access order in favour of the paternal aunt and paternal uncle cannot be made, as:

(a) the paternal aunt and paternal uncle should be required to seek access by bringing their own application;

(b) they (the maternal grandparents) would be deprived of the basic litigation right to have the case defined by the pleadings and a right to discovery and costs; and

(c) subsection 64(5) of the Act does not allow the paternal aunt and paternal uncle to participate nor does it provide the court with jurisdiction to entertain their claim.

2.1: Does the Court Have Jurisdiction to Make an Access Order pursuant to Section 58 of the Act after a Custody Order Has Been Made under Section 57.1 of the Act?

[18] When the society's summary judgment motion was before the court, the issues of disposition under section 57.1 and access under section 58 were before it.

[19] The relevant portions of sections 57.1 and 58 of the Act are formulated as follows:

57.1 Custody order.

(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

(2) Deemed to be order under Children's Law Reform Act. — An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

58. Access order.

(1) The court may, in the child's best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2)

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

(2) Who may apply. — Where a child is in a society's care and custody or supervision,

(a) the child;

(b) any other person, including, where the child is an Indian or a native person, a representation chosen by the child's band or native community; or

(c) the society,

may apply to the court at any time for an order under subsection (1).

[20] On the summary judgment motion, the court found that it was in the child's best interests to be placed in the custody of the maternal grandparents. The court specifically directed the issue of access to be tried. Access, therefore is the remaining issue in this case. The court did not direct that a new case had to be started under the Children's Law Reform Act.

[21] Subsection 57.1(2) provides that any access order under section 58 made at the same time as the order under subsection 57.1(1) shall be deemed to be made under section 28 of the Children's Law Reform Act.

[22] As the access issue is to be addressed at a hearing sometime after the section 57.1 custody order was made, the question is whether the access order can be made under section 58. In other words, is the access order to be made at the hearing "made at the same time" as the custody order under section 57.1? Must a new application be made?

[23] I interpret the phrase "at the same time as the order is made" to mean that the access order referred to is one made within the same case. The access order does not of necessity need to be made contemporaneously with the section 57.1 custody order. Section 57.1 was formulated to allow a court to make a custody order without the need for a separate application under the Children's Law Reform Act. It allows for permanency planning in an expeditious manner. Defining the child's access to others is part of this permanency planning.

[24] Also, if the access order had to be made literally at the same time as the custody order, it would defeat the purpose of the summary judgment rule which, in part, is a rule to allow for the expeditious and cost-effective resolution of cases.

[25] The summary judgment rule allows a court to grant a final order in respect of all or some claims. For those claims where a final order is not granted on a summary judgment motion, a trial of issues can be directed. That is what happened in this case. Justice Phillips directed a trial of the issue of access. The outstanding issue within the status review application that remains before the court is access.

[26] No appeal was taken from Justice Phillips' order directing a trial of the access issue.

[27] A new application seeking access under the Children's Law Reform Act is not required.

2.2: Does the Court Have Jurisdiction under Section 65 of the Act to Make an Access Order in a Status Review Application to a Person Not Originally Granted Access or Who Has Not Brought a Separate Application?

[28] The maternal grandparents submit that the court has no jurisdiction in a status review application under subsection 65(1) of the Act:

(a) to grant access to a person not granted access in the original child protection application; nor

(b) to grant access to a person who has not brought an application seeking access under section 58 of the Act.

[29] Subsection 65(1) of the Act provides as follows:

65. Court may vary, etc.

(1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1.

[30] The maternal grandparents argue that the wording of subsection 65(1) restricts the court's power to vary or to terminate a term of access that is or was part of the original order. The enumerated powers under subsection 65(1) do not include the power to make an order for access in favour of a person who was not granted access in the original order. Further, they argue that the wording of section 57.1 does not allow the court to make a fresh order for access to one who has not brought an application for access under section 58.

[31] With respect, this argument takes a too restrictive interpretation of section 65. The literal approach to interpreting the section proposed by the maternal grandparents must give way to a purposive one. The Act and the Family Law Rules provide a legislative and procedural scheme to deal with all issues raised in a child protection case without delay and without requiring a multiplicity of proceedings.

[32] On a status review application, the court can, as it did in this case, make an order under section 57.1. When the court makes an order under section 57.1, it can also make an access order under section 58. The enabling words in section 58 provide that an access order can be made in the child's best interests when making an order under Part III of the Act.

[33] In this case, the father did make a claim for access including one on behalf of the paternal aunt and paternal uncle within his answer and plan of care.

[34] In this status review application, there is a properly constituted claim for access to the child by the father on his own behalf and on behalf of the paternal aunt and paternal uncle.

2.3: Can an Access Order Be Made in Favour of a Non-Party?

[35] It is not a prerequisite to granting access to a person that he or she be a party to the status review application.

[36] Subsection 57.1(2) speaks of an "access order under section 58." Subsections 58(1) and 58(2) speak of "persons" and not "parties". This is an important distinction.

[37] In this case, the paternal aunt and paternal uncle's claim for access is being made through the claim of the respondent father. The paternal aunt sought an order allowing her to be added as a party. This request was dismissed twice.

[38] Part of the court's endorsement when dismissing the request for party status states as follows:

The respondent father's answer requests placement of the children with [the paternal aunt and paternal uncle]. Accordingly, the evidence, position and case of the paternal aunt shall be put through the respondent father's case. Hence, it is unnecessary to consider awarding "party" status to the [paternal aunt].

[39] The procedure whereby the paternal aunt and paternal uncle's claim for access is to be put in through the respondent father's case has been known to the parties since 9 April 2015, when Justice Phillips dismissed the paternal aunt's request for party status the first time. The parties have moved forward with this case for almost two years on the basis of the foregoing: this includes the paternal aunt and paternal uncle obtaining a temporary order allowing them access to the child even though they were not parties, and without having to bring their own access application.

2.4: Is There Prejudice to the Maternal Grandparents in Allowing the Paternal Aunt and Paternal Uncle to Put Their Case in through the Respondent Father?

[40] The maternal grandparents also argued that to allow the paternal aunt and paternal uncle to make their claim as part of the respondent father's case deprives them of the fundamental protection afforded by the adversarial system of justice to have the case they must meet circumscribed by pleadings.

[41] The essence of the maternal grandparents' argument is that, without being parties to the case, they cannot know the material facts being relied upon by the paternal aunt and paternal uncle.

[42] In support of this argument, they rely on the case of Rodaro v. Royal Bank of Canada, 59 O.R. (3d) 74. At paragraph [60] of the decision, the court held that it was "fundamental to the litigation process that lawsuits be decided within the boundaries of pleading." In Rodaro v. Royal Bank of Canada, the court held that it was unfair for the trial judge to find liability against the appellants on a theory not pleaded. At trial, it was the trial judge who articulated the theory of liability, for the first time in the reasons for judgment. It had not been raised during the trial or argument.

[43] The situation in this case is distinguishable from the case of Rodaro v. Royal Bank of Canada.

[44] There is no unfairness or lack of notice here.

[45] This case has been actively case-managed under the Family Law Rules. The maternal grandparents cannot reasonably suggest that they are unaware of the paternal aunt and paternal uncle's claim and the basis upon which it is being made. What the paternal aunt and paternal uncle seek and why, has been before the court for almost the entire time that this case has been outstanding. The maternal grandparents have the benefit of all of the affidavits filed on behalf of the paternal aunt and paternal uncle relied upon when access and party status was sought.

[46] The maternal grandparents also argue that the paternal aunt and paternal uncle are not subject to the disclosure, costs and conference rules. However, the Family Law Rules do allow for disclosure from and costs orders against non-parties. Further, the involvement of and disclosures to be provided by the paternal aunt and paternal uncle were addressed at the trial management conference. Affidavits from both of them are to be provided in advance of the trial and will constitute their evidence in-chief.

3: ORDER

[47] For these reasons, the court finds that it has jurisdiction to make an access order in respect of the paternal aunt and paternal uncle within the trial that has been directed.

Released: 6 February 2017

Justice Barry M. Tobin