WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication.
Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
87.— (8) Prohibition re 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.
87.— (9) Prohibition re identifying person charged.
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.
142.— (3) Offences re publication.
A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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
Ontario Court of Justice
Date: 2018-10-29
Court File No.: Halton 06/441-03
Between:
The Children's Aid Society, Region of Halton, Applicant
— AND —
M.S.L. M.L. C.O., Respondents
Before: Justice Victoria Starr
Heard on: August 30 and September 13, 2018
Reasons for ruling on motion released on: October 29, 2018
Counsel
Lucia Spampinato — counsel for the applicant society
M.S.L. — on her own behalf
M.L. — on his own behalf
No appearance by or on behalf of C.O., not served with notice
M. Gage — counsel for the Office of the Children's Lawyer, legal representative for the child E.
VICTORIA STARR J.:
Introduction
[1] This is the court's decision on a motion made by the Society for a finding that C.O. (an individual previously found by Agro J. to be a parent of E.[1]) is not a "parent" as defined under the Child, Youth, and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (hereinafter referred to as "the Act" or "the CYFSA"). If successful with respect to the first head of relief, the Society also seeks an order removing C.O. as a respondent in these proceedings.
[2] This motion was made without notice to C.O.
Background
[3] This is the fourth child welfare proceeding involving identical parties and an identical child.[2] Even the level and location of the court is the same. The first was a child protection application. This was followed by two status review applications, which concluded when the original protection order was terminated. The fourth is this child protection application.
[4] All of the child welfare proceedings involving this family (including this one) were started under the Child and Family Services Act, RSO 1990, c C.11 ("CFSA"). About seven months into this proceeding, the governing legislation changed. That is, the CFSA was repealed and its successor, the CYFSA, came into force.[3] When this happened, these proceedings had not yet concluded.
[5] The definition of "parent" under s. 74(1) of the CYFSA has changed from that in s. 37(1) of the former CFSA. Since the original finding of parentage was made, there have also been changes to sections and clauses of the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("the CLRA"), that are incorporated by reference into the definition of "parent" in both the CYFSA and the former CFSA.
[6] C.O. has been named as a party and his name is listed in the title of proceedings of every court document filed in every one of the three prior proceedings. Whenever his name appears in the title of those proceedings, beside it is written "father of E." or some variation thereof. Throughout the affidavits in the prior proceedings C.O. is referred to as the father of E. Further, he has, until these proceedings started, always been dealt with as if he is a party to the proceedings. For example, in the prior proceedings orders were sought and made addressing the issue of service on him. In the last status review proceeding, an order was made dispensing with service on him.
[7] When starting these proceedings the Society unilaterally changed the title of proceedings such that it left out the name of C.O. as a listed party.
[8] C.O. has never participated in any of the prior proceedings. He has not participated in these proceedings, although, to be fair, he has yet to be served with any of the documents filed, including the child protection application, amended child protection application, and the notice of motion and evidence in support of it relied on by the Society for this motion.
[9] When disposing of the first child protection application on March 8, 2007, all of the same parties to this application except for C.O., signed and filed a statement of agreed facts. One of the facts all admitted to is that C.O. is E.'s father. On the basis of that admission of fact, Justice Agro found that C.O. is the father of E. (a finding that he is E's parent). Her finding is set out in her final order. Neither that order nor her finding of parentage were appealed or otherwise set aside or varied.
Analysis
[10] I dismiss this motion for the four reasons that follow.
Reason #1
[11] First, as Justice Agro's finding has not been appealed or otherwise set aside, at the start of these child protection proceedings and even when the Society filed its amended protection application, C.O. held the legal status of parent of E.
[12] He is also a parent and a party, no new/different finding of parentage has replaced Justice Agro's. As his parent he was without question a party to these proceedings and a person entitled to notice of them. This is clear in both s. 39(1) of the former CFSA, s. 79(1) of the CYFSA and subrule 7(4) of the Family Law Rules, O. Reg. 439/07, s. 1 ("the Rules").[4] These read as follows respectively:
s. 39(1) of the CFSA:
39.-(1) The following are parties to a proceeding under this Part [that is, Part III, which deals with child protection proceedings]
- The child's parent.
s. 79(1) of the CYFSA:
Parties
79 (1) The following are parties to a proceeding under this Part:
- The applicant.
- The society having jurisdiction in the matter.
- The child's parent.
- In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child's bands and First Nations, Inuit or Métis communities.
s. 7(4) of the Family Law Rules in force now:
PARTIES IN CASES INVOLVING CHILDREN
7(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child, Youth and Family Services Act, 2017, shall be named as a party, unless the court orders otherwise:
- A case about custody of or access to a child.
- A child protection case.
- A secure treatment case (Part VII of the Child, Youth and Family Services Act, 2017).
s. 7(4) of the Family Law Rules in force when this case started:
PARTIES IN CASES INVOLVING CHILDREN
7(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child and Family Services Act, shall be named as a party, unless the court orders otherwise:
- A case about custody of or access to a child.
- A child protection case.
- A secure treatment case (Part VI of the Child and Family Services Act).
[13] In this court's decision in the case of Children's Aid Society, Region of Halton v. R. (D.) (2015), 2015 ONCJ 314, 2015 CarswellOnt 8563, 61 R.F.L. (7th) 478 (Ont. C.J.) this court discussed the importance of notice to a parent in child welfare cases. The context of that discussion was a motion to dispense with service on a parent/party. There (see paragraphs 32 to 36), this court adopted the reasoning and view of Bondy J. in her decision in the case of Windsor-Essex Children's Aid Society v. R.L., 2012 ONCJ 325 (Ont.C.J.). In that case, Bondy, J. found that there is no jurisdiction under the C.F.S.A, the Family Law Rules, or at common law to exclude a parent as a party (and hence avoid the necessity for service). In her view, failing to provide notice would violate the father's fundamental right to notice and to be heard and would deprive the court of a fulsome review of the evidence to determine this child's best interests. She sets out how she arrived at this conclusion at paragraph 43 of the decision where she states:
[43] Not only am I bound by the Supreme Court of Canada decision relating to notice, child protection, fundamental fairness and section 7 of the Charter rights, but I agree with the findings of Justice Clifford S. Nelson found in Children and Family Services for York Region v. E.T., 79 R.F.L. (6th) 263, [2009] O.J. No. 5587, 2009 CarswellOnt 8161. I prefer Justice Nelson's reasoning. I am likely bound by his findings and frankly I completely concur with his analysis.
[14] Furthermore, as I concluded in this court's decision in R.D. supra and as Sherr J. wrote in his decision in the case of Jewish Family and Child Service of Greater Toronto v. B. (K.), 2016 CarswellOnt 7222, 2016 ONCJ 259, [2016] W.D.F.L. 3934, [2016] O.J. No. 2377, 266 A.C.W.S. (3d) 634, notice to a parent and to a party is a fundamental principle of natural justice and should not be dispensed with lightly on a parent, particularly in child protection cases. At paragraph 15 of his decision, Justice Sherr wrote:
- Courts should not lightly grant orders dispensing with service on a parent, particularly in child protection cases. This is the case, even if the parent has had little involvement with the child or might be a risk if served. It is a fundamental principle of natural justice that a parent be provided with both procedural and substantive protection. See: Windsor-Essex Children's Aid Society v. L. (R.), 2012 ONCJ 325 (Ont. C.J.); Children & Family Services for York Region v. T. (E.), [2009 CarswellOnt 8161 (Ont. S.C.J.)]; Children's Aid Society, Region of Halton v. R. (D.), 2015 ONCJ 314 (Ont. C.J.), per Justice V.A. Starr. If service is dispensed with, it robs a child of a potential family relationship, even if that potential is small.
[15] For these reasons, it is this court's finding that to hear this motion without notice to C.O. who is a parent at this time by virtue of a previous finding that remains in effect, and by virtue of the statute and regulations because he is parent thus a party, would violate a fundamental principle of natural justice.
Reason #2
[16] I find that the coming into force of the CYFSA has not affected the validity of Justice Agro's finding that C.O. is a parent, and it didn't affect C.O.'s party status for these reasons: First, there is nothing in the CYFSA or in O. Reg. 157/18, s. 11 (entitled: s 11. Proceedings commenced under Part III of old Act, general rule), or O.reg. 157/18, s. 12 (entitled: s 12. Effect of determination under s. 47(2)(c) of old Act) that signals any effect on:
(a) a prior finding of parentage;
(b) the existing procedural or substantive rights of an individual found to be a parent; or,
(c) the procedural rights of an individual who was already a party to proceedings started under the CFSA but not yet concluded when the CYFSA came into effect.
[17] There is simply nothing in the CYFSA or regulations that signals any retroactive effect of the new statute on prior orders and findings, or, on either the substantive or procedural rights of parties and parents in a proceeding started under the CFSA.
[18] Further, there is only one transitional regulation where the Legislature saw fit to expressly direct a fresh inquiry into findings relating to children. That is found in O. Reg. 157/18, s. 12. That regulation deals with the effect of a prior finding made under the CFSA that affects or could affect the rights of a child who is First Nations, Inuuk, or Metis. It expressly directs the court to "as soon as practicable", and despite a prior determination made under clause 47(2)(c), determine under clause 90(2)(b) of the Act whether the child is a First Nations, Inuk or Métis child and, if so, determine the child's bands and First Nations, Inuit or Métis communities in such cases.
[19] The absence of any express clause similar to O. Reg. 157/18, s.12, with respect to the new definition of "parent", suggests that the Legislature did not intend the new legislation to retroactively affect findings of parentage made under the CFSA, and thus, that such findings continue.
[20] In addition, there is the express direction regarding transitional matters found in O. Reg. 157/18, s. 11, and O. Reg. 157/18, s. 13, to consider. These regulations read as follows:
13. Orders made under Part III of old Act
An order made under Part III of the old Act that was in effect immediately before this section comes into force is deemed to be an order made under Part V of the Act.
11. Proceedings commenced under Part III of old Act, general rule
11(1) A proceeding commenced under Part III of the old Act but not concluded before the day this section comes into force is continued as a proceeding commenced under Part V of the Act.
11(2) Despite subsection (1), in the case of a proceeding relating to a First Nations, Inuk or Métis child, paragraph 4 of subsection 79(1) of the Act does not apply if the court is satisfied that it would not be in the child's best interests for that provision to apply and makes an order stating that the parties to the proceeding are those who were parties immediately before this section comes into force.
11(3) Despite subsection (2), if a court has completed its hearing of a proceeding in respect of a First Nations, Inuk or Métis child before the day this section comes into force but reserved its decision, the parties to the proceeding are those who were parties immediately before this section comes into force unless the court is satisfied that it would be in the best interests of the child for paragraph 4 of subsection 79(1) of the Act to apply and makes an order to that effect.
[21] Together these two regulations offer clear insight into what the Legislature intended in such instances. That is, that the effect of the new legislation on procedural rights, substantive rights, and orders already in existence under the old legislation or which arise out of an order made under the CFSA, is not retroactive. Those orders, rights, and any status an individual already has, continue.[5]
[22] Finally, this conclusion is consistent with a number of rules of interpretation and presumptions that are often applied in cases where there is a change in legislation. The Supreme Court of Canada, in its decision in R. v. Dineley, 2012 SCC 58, had this to say about the effect of new legislation on the rights of individuals, at paragraph 10:
10 There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectively has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Hart, [1988] 2 S.C.R. 256 (S.C.C.), at pp. 266-67; Application Under s. 83.28 of the Criminal Code, Re, 2004 SCC 42, [2004] 2 S.C.R. 248 (S.C.C.), at para. 57; R. v. Wildman, [1984] 2 S.C.R. 311 (S.C.C.), at pp. 331-32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (Application Under s. 83.28 of the Criminal Code, Re, at paras. 57 and 62; Wildman, at p. 331).
[23] In Davis (Litigation Guardian Of) v. Wawanesa Mutual Insurance Co., 2015 ONSC 6624, at paragraph 24, the court sets out a summary of the rules of interpretation that the Supreme Court of Canada set out in its decision in R. v. Dineley, that can be helpful in determining whether legislation is to have prospective or retrospective effect:
Temporal Interpretation of Legislation
24 The Supreme Court in R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272 (S.C.C.), identified a number of rules of interpretation that can be helpful in determining whether legislation is to have prospective or retrospective effect:
(i) Cases in which legislation has retrospective effect must be exceptional;
(ii) Where legislative provisions affect either vested or substantive rights, retrospectively has been found to be undesirable;
(iii) New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively;
(iv) New procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights and is presumed to apply immediately to both pending and future cases;
(v) The key task in determining the issue lies not in labelling the provisions "procedural" or "substantive", but in discerning whether they affect substantive rights; and
(vi) The fact that new legislation has an effect on the content or existence of a right is an indication that substantive rights are affected.
[24] The outcome of this motion could terminate both the procedural and substantive rights afforded to C.O. by virtue of the other parties' admission and Justice Agro's finding that he is E.'s father/parent. With respect to the potential affect the outcome of this motion could have on C.O.'s substantive rights, I point to the Ontario Court of Appeal's decision in the case of A. (A.) v. B. (B.), 2007 CarswellOnt 2, 2007 ONCA 2 (per R.R. McMurtry C.J.O., J. Labrosse, M.R. Rosenberg JJ.A.). Although the appeal had to do with a declaration of parentage under the CLRA, rather than a finding of parentage in child welfare proceedings and a very different set of facts, at the heart of the dispute in the case is the significance of being declared to be a "parent".
[25] At paragraph 14, the Ontario Court of Appeal cites with approval the summary of the importance of a declaration of parentage from the point of view of the parent and the child set out in the factums of the intervenor and Children's Lawyer:
14 A.A., B.B. and C.C. seek to have A.A.'s motherhood recognized to give her all the rights and obligations of a custodial parent. Legal recognition of her relationship with her son would also determine other kindred relationships. In their very helpful factums, the M.D.R. Intervenors and the Children's Lawyer summarize the importance of a declaration of parentage from the point of view of the parent and the child:
• the declaration of parentage is a lifelong immutable declaration of status;
• it allows the parent to fully participate in the child's life;
• the declared parent has to consent to any future adoption;
• the declaration determines lineage;
• the declaration ensures that the child will inherit on intestacy;
• the declared parent may obtain an OHIP card, a social insurance number, airline tickets and passports for the child;
• the child of a Canadian citizen is a Canadian citizen, even if born outside of Canada (Citizenship Act, R.S.C. 1985, c. C-29, s. 3(1)(b));
• the declared parent may register the child in school; and,
• the declared parent may assert her rights under various laws such as the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A., s. 20(1).
[26] In the case at bar, it stands to reason that these same rights would be at stake for any person found to have been a parent by a court of competent jurisdiction, even those who derive this status by virtue of an admitted fact and finding of a judge made in under the definition of parent applied in proceedings under the former CFSA or current CYFSA.
[27] In addition to those already discussed, one must not forget that in child welfare proceedings there are other substantive rights afforded to parents that could be affected by the loss of status as a child's parent. These include: the right to have a child returned to the parent's care; rights of access; preferential status in terms of placement within the child's community; entitlement to support and services from the Society; etc.
[28] A finding that C.O. is not a parent could also have broader implications and affect his substantive rights and status in other proceedings involving E., such as in the event that an application is made to adopt E.
[29] Given the foregoing, there can be no doubt that the outcome of a motion such as this for any parent, including C.O., could significantly affect and even terminate any or all of the parent's substantive rights.
[30] C.O.'s procedural rights are also potentially affected by the outcome of this motion. Here I am referring to the rights of a parent in child welfare proceedings – the right to: party status in these proceedings; notice; serve and file an answer and plan of care for the court to consider; participate at every step in the case, etc.
[31] The fact that a parent such as C.O. is not exercising the rights afforded to a parent, or, whether he should continue to have such rights, are not relevant considerations at this stage. What matters at this stage is that he continues to have substantive and procedural rights which could be affected if the Society is successful on this motion.
Reason #3
[32] Third, and in any event, hearing this motion without notice to C.O. would be contrary to the Rules. The Rules require that individuals affected by a motion shall be parties to such motions and given notice, except in a limited and enumerated circumstances. I have already determined that C.O. is a person affected by the motion. Indeed, he is the subject matter of this motion. I turn, therefore, to a discussion of the applicable rules.
[33] Subrules 7(3) and 14(3) of the Rules read as follows:
WHO ARE PARTIES — MOTION
7(2) For purposes of a motion only, a person who is affected by a motion is also a party, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support.
PARTIES TO MOTION
14(3) A person who is affected by a motion is also a party, for purposes of the motion only, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support.
[34] Given these subrules, and the potential affect I have already found the outcome of this motion could have on both C.O.'s substantive and procedural rights, I find that C.O. is a party to this motion and entitled to notice of it, unless the test in subrule 14(13) is met, he is entitled to notice of it.
[35] Subrule 14(13) sets out the circumstances under which a motion may be made without notice. It reads as follows:
MOTION WITHOUT NOTICE
14(12) A motion may be made without notice if,
(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
(b) there is an immediate danger of a child's removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;
(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or
(d) Service of a notice of motion would probably have serious consequences.
[36] There is no evidence before me that brings the circumstances of this motion within any of the foregoing criterion. As such, the Society has not met its onus to satisfy me on a balance of probabilities that this motion may be made without notice.
[37] Given this motion should never have been made without notice, C.O.'s party status and entitlement to notice, the Society was required to follow the steps set out in subrule 14(11), in bringing this motion. That subrule reads:
MOTION WITH NOTICE
(11) A party making a motion with notice shall,
(a) serve the documents mentioned in subrule (9) or (10) on all other parties, not later than six days before the motion date;
(b) file the documents as soon as possible after service, but not later than four days before the motion date;
(c) confer or attempt to confer orally or in writing with every other party about the issues that are in dispute in the motion, subject to a party being prohibited from such communication by court order;
(d) before giving the clerk confirmation of the motion in Form 14C under clause (e) give a copy of the confirmation of motion to every other party using mail, fax, email or any other method, except in a child protection case; and
(e) not later than 2 p.m. three days before the motion date, give the clerk the confirmation of motion (Form 14C) by,
(i) delivering it to the court office, or
(ii) if available in the court office, sending it by fax or by email
[38] With the exception of rule 14(11)(c) and (e), none of what is required to be done in this subrule occurred vis à vis C.O. As such, the motion cannot succeed.
[39] For all the foregoing reasons, the Society's motion is dismissed.
Society's Conduct
[40] I realize that it may seem pointless to give C.O. notice and an opportunity to participate in these proceedings, given he has never chosen to do so before. I am also sympathetic to M.L. who gets upset every time the topic of C.O.'s status and rights are brought up. This is because it is, on the evidence before me, M.L., not C.O., who has functionally served as E.'s father and M.L. is the only father E. has ever known. I am sympathetic to the difficult position of the Children's Lawyer who is struggling with her sense of a duty to report owed to her client and her desire to protect him from finding out that M.L. is not his biological father. Like everyone else in this case, I too am concerned that such knowledge may have a detrimental effect on E.
[41] However, to ensure that fairness in the dispensation of justice prevails, we are all expected to follow the rules, even when doing so seems pointless or, we do not like them, or we do not like the results. We are not permitted to hijack the administration of justice by following our own individual view of what is wrong or right, fair or just.
[42] In this case this is exactly what the Society did. Not only did the Society fail to list C.O. as a respondent when starting these proceedings and give notice of its motion to C.O., but it also failed to serve C.O. with its child protection application and the amended child protection application. It was required to do so immediately after each was issued pursuant to Rule 8(5).
SERVICE OF APPLICATION
8(5) The application shall be served immediately on every other party, and special service shall be used unless the party is listed in subrule (6).
[43] Even though the Society had contact with C.O., at least in the late fall of 2017, it held off serving C.O. The Society waited until February 2018, to bring a 14B motion for relief, one term of which was basically for the same relief sought in this motion. It brought that motion without notice to C.O., and, Justice Parent dismissed it for many of the same reasons I have given in this decision. Next, the Society waited about seven more months and until well after the CYFSA had come into force with its changed definition of "parent", whereupon it tried again to bring this motion, again made without notice.
[44] This conduct has caused undue delay and prevented the court from disposing of the matter. The remaining parties all signed a statement of agreed facts on August 30, 2018. The findings and final order that would flow from the court's acceptance of that statement of agreed facts, cannot be made until C.O. is served with the amended protection application and either files and answer and plan of care, or, fails to do so within the prescribed time and is noted in default. The Society's conduct has also wasted court time and resources, and the remaining parties' time. The Society's conduct cannot be permitted to continue unchecked.
[45] Nonetheless and although I do not understand why the Society persists in seeking the relief it does, now some 11 years and three proceedings after the initial admission and finding that C.O. is E.'s parent, was made, I have been and remain open to considering the Society's request to have C.O. found not to be a parent as that term is defined under the CYFSA and to removing him as a party, but only if that motion is made on notice to C.O.
[46] I have considered my duty to deal with cases justly, including in ways that save time and expense, and I have considered my authority under rule 1(8.1) and 14(21) to make orders designed to compel compliance with the rules and avoid delay and further waste of time and expense. As a way of balancing this with the Society's interests in having a motion such as this heard, I have placed the restrictions set out below on the Society's ability to bring such a motion again in these proceedings.
CONCLUSION AND ORDER
[47] For all these reasons I make the following order:
Status quo to continue;
Society's motion for an order that C.O. is not a parent of E. as defined under the CYFSA, and for an order removing him as a party, is dismissed.
The Society shall forthwith serve C.O. with a copy of its amended protection application as well as this decision and reasons. No other documents need be served on him at this time and until he has served (only required on Society at this time) and filed an answer. The Society may redact any information therein that would identify the address of any of the other parties, the child's school or home address, or other information that would have the effect of disclosing where or how the child may be contacted or communicated with. A copy of the redacted application served shall be filed with the affidavit of its service on C.O.
The Society is prohibited from bringing the same or similar motion as the one dismissed in paragraph 2 above unless it brings that motion on notice to C.O.; and, until it has served C.O. with its amended application and he has either served and filed his answer and plan of care, or, the time for him to do so has lapsed.
The title of proceedings in this case is hereby ordered amended to include the name of C.O. as a respondent.
The Society is to forthwith attend at the Court Office to amend the title of proceedings reflected on volume 4 of the Continuing Record as well as the cover of the endorsement record, such that the title of proceedings includes the name of C.O. as a respondent;
Until such time as the court may order otherwise, any documents filed by any party to these proceedings shall reflect in the title of proceedings, the name of C.O. as a respondent.
Pending further order of this court neither the respondent, C.O. nor his agent or counsel, may have access to the court file. Should he or his agent attend to file his answer and plan of care, Court Operations is to accept it for filing but to update the records and leave it loose in the court file with a notice to judge on it.
The October 30, 2018 court date is vacated;
Matter is scheduled TBST on January 3, 2019, at 10:00 a.m.
If an earlier court date is required for some reason, the parties may request same by way of 14B Motion.
The judicial secretary is requested to send a copy of this decision and reasons to the Children's Lawyer, M. Gage, and Society counsel, L. Spampinato.
The Society shall forthwith serve a copy of this decision and reasons on the other named respondents, M.S.L. and M.L.
Released: October 29, 2018
Signed: Justice Victoria Starr
Footnotes
[1] Justice Agro made this finding on March 8, 2007 in a prior child protection application decided under the Child and Family Services Act, RSO 1990, c C.11.
[2] Although there were other children who were also subject children to the proceeding.
[3] The child protection application is dated September 7, 2017. The amended application is dated November 3, 2017. The CFSA was repealed and the CYFSA came into force, on April 30, 2018.
[4] Although there have been changes to the Rules, since these proceedings started, the only changes to this particular subrule is a change in the name of the statute referred to.
[5] This should not be taken to mean that they cannot be changed by future order, although the doctrine of res judicata in the form of issue estoppel may likely presumptively apply.
