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

Date: 2019-10-31

Court File Number: 117/2019

Ontario Court of Justice at Orangeville

Parties

Between:

The Children's Aid Society of the County of Dufferin Applicant

and

K.C. Respondent (mother)

B.D.M. Respondent (father)

E.G. Respondent (aunt)

and

Kr.C. Respondent (uncle)

Judicial Officer

Justice B. E. Pugsley

Heard: October 30th, 2019

Released: October 31st, 2019

Appearances

• Applicant represented by counsel Ms. K. O'Grady
• Respondent (mother) represented by Ms. L. Cherry (as friend of the Court)
• Respondents (aunt and uncle) and counsel Ms. M. Hornseth
• Respondent (father) not appearing; not yet served

Endorsement

Background and Family History

[1] The Respondent K.C. and B.M. have two children together: L., (M) ([…], 2015), and R., (F) ([…], 2017). B.M. has an older child with a different mother who is not the subject of this matter.

[2] In 2018 things were not going well for the parents and their young children. The local CAS became engaged.

[3] In mid-2018 the Family and Children's Services of Guelph and Wellington County ("Guelph CAS") became involved with the family of K.C. and B.M. who lived in Fergus in Wellington County at the time. Their initial voluntary services were superseded by a formal court proceeding by a Protection Application started in the Guelph Ontario Court of Justice (file number C 228/18).

Prior Court Orders

[4] By a consent order dated February 12th, 2019, the court in Guelph made a finding that the children were in need of protection and placed them with the Respondents Mr. C. (Ms. C.'s brother) and his spouse Ms. G. under the supervision of the Guelph agency for six months.

[5] On July 30th, 2019, on the status review of that February order, again on consent, the court in Guelph made a second six month supervision order with the same caregivers.

Current Placement and Jurisdiction

[6] Mr. C. and Ms. G. live in Orangeville, in Dufferin County. Under both court orders the children lived in Orangeville with them and L. attended school here. Guelph CAS directly supervised the children in their care – the Applicant ("Dufferin CAS") had no role in that supervision although the Guelph agency could have enlisted their help.

The Incident and Apprehension

[7] On October 15th L.'s school noticed that he had a bruise on his face. He said his Auntie E. hit him. He gave other subsequent conflicting stories. The school reported the incident to the Guelph CAS who sent over workers to meet the child with the police. He was later seen by the SCAN Unit at Hamilton McMaster Hospital. The SCAN report was not provided to the court but the Applicant's Affidavit material referenced the attending doctor's opinion that an accidental injury was unlikely.

[8] As the child was living temporarily in Dufferin County under the Guelph supervision order, the Guelph CAS in the presence of a social worker from the Dufferin agency apprehended the children and took them to a place of safety.

Motion Proceedings

[9] The Dufferin CAS brought on an early status review application in Orangeville together with a Notice of Motion for a temporary care order returnable on October 21st, 2019. The Motion sought an order (a) placing the children in the temporary care of the Dufferin CAS and (b) an order transferring the matter to the Guelph family court returnable on November 5th, 2019 for a temporary care motion there.

[10] On October 21st, on consent, Justice Schwarzl of this court adjourned the motion to be heard on October 30th, 2019 and ordered without prejudice temporary society care in the interim.

[11] On the return of the motion on October 30th, 2019, the Respondent (mother) had filed material returnable on the 30th as well: a cross motion to return the children to the aunt and uncle and to have the matter remain in Orangeville. The aunt and uncle sought to have the matter remain in Orangeville and also wished to adjourn the motion to allow the filing of their material and their own motion to return the children to their care.

[12] Faced with the position of the responding parties that they'd prefer to stay in Orangeville, the Dufferin CAS changed their position and advised at the return of the motion that they were OK with having the matter continue in Orangeville.

Service Issues

[13] The Respondent (mother) filed an affidavit sworn on October 22nd, 2019. The affidavit in support of her motion was filed loose in the court file because she would not provide an address for service. She purported to serve her material by fax to CAS of Dufferin/Wellington (a non-existent entity) by fax to a number not associated with the Dufferin CAS. Counsel for Dufferin CAS had no idea that the Respondent (mother) had served any material at all. Court staff did not carefully check the affidavit of service and allowed the material to be filed. When the issue of the transfer of the matter to Guelph was argued the CAS had no idea that the Respondent (mother)'s material existed.

Respondent Mother's Position

[14] The Respondent (mother) states that she has lived in Orangeville since April 29th, 2019. The statement of agreed facts upon which the consent six month supervision order was made on status review on July 30th, 2019, notes that that was the date when Ms. C. and Mr. M. separated. She states that the children have resided in Orangeville since the first placement with the aunt and uncle in the fall of 2018. Their service providers are in Orangeville and Brampton. She can't drive and so if her access was in Fergus, she couldn't see the children. She states that the Dufferin CAS "actually have provided real support for the children while Guelph and Wellington Child and Family Services have not."

Applicable Legal Framework

[15] Rule 5 of the Family Law Rules provides guidance for where a family law proceeding is to be started and heard. The rule connects custody and access issues to the jurisdiction where the child resides. Child protection matters are expressly excluded from the ambit of Rule 5 by Rule 5(1)(b)(ii): Section 91(2) of the Child, Youth and Family Services Act, 2017 ("the Act") expressly governs where an application is to be commenced. Section 91(2)(c) applies here: the children are in Dufferin County under court ordered supervision. The application may be heard here or in Guelph. This is the issue the parties place before the court today for determination.

Analysis: Agency Involvement and Continuity

[16] The only agency that has had a role here from before a formal protection application was even contemplated has been the Guelph CAS. The only reason that the children were in Dufferin County at all was because they were placed here under a court order made in Guelph. The parties are in the middle of a court application in Guelph which had been scheduled to return in early 2020 but for these recent intervening events. On the scanty record before me at no time have the Respondents (mother) or (aunt and uncle) seemingly challenged the proceeding of the matter at the Guelph courthouse in the past. The Respondent (mother)'s residence has been in Orangeville since the spring and yet the July matter proceeded on consent in Guelph. The Respondent (mother) was represented by counsel in the Guelph court proceeding including the two past consents.

[17] The Applicant's material reflects the entire absence of any past Dufferin CAS role here. The entire history of the matter in the material is contained in a Guelph social worker's affidavit attached as an exhibit to the Dufferin CAS social worker's affidavit and other exhibits received from the Guelph CAS.

[18] There is no court file from Guelph, nor copies of any orders made there: only the two past Agreed Statements of Fact. The Guelph CAS has more than a year's worth of past involvement.

Parties' Submissions

[19] The parties submit that I should give effect to their consent to have this Guelph matter proceed in Orangeville. They submit that it would be more convenient for them. They say (I paraphrase) that the father, Mr. M., who doesn't yet know about the apprehension, is the only real link to Guelph and since he's not interested anyway (which may in fact be the case but so far he has not been served) his input on the place of hearing doesn't really matter.

[20] The aunt and uncle submit as well that the best interests of the children require that the Application be heard in Orangeville.

[21] This last submission is really an issue for the hearing of the motion, here or in Guelph, and is not about a motion to decide where the matter should be heard.

Merits Considerations

[22] The result of the temporary care and custody motion, when argued on a full record, may be a continuation of the current placement or may not. On the face of the current allegations (and they are not as of yet litigated) an unexplained injury to L. took place while the children were in the current placement and perhaps while the Respondent (mother) was having a visit under their supervision. Otherwise the Guelph agency has been very complimentary of the care given by the aunt and uncle.

[23] While three of the four Respondents live in Orangeville the Guelph CAS and the Guelph court has a long term and continued involvement with these children. The Respondent (mother)'s affidavit has a hint that she is shopping for a "better" agency. This suggests caution.

[24] The place of the hearing of the motion does not prevent the court from placing the children back in Orangeville if that is the decision of the court on the full record after the motions are heard in Guelph.

Court's Reasoning and Decision

[25] As can be seen from the above, the only agency that has had a role here from before a formal protection application was even contemplated has been the Guelph CAS. The only reason that the children were in Dufferin County at all was because they were placed here under a court order made in Guelph. The parties are in the middle of a court application in Guelph which had been scheduled to return in early 2020 but for these recent intervening events. On the scanty record before me at no time have the Respondents (mother) or (aunt and uncle) seemingly challenged the proceeding of the matter at the Guelph courthouse in the past. The Respondent (mother)'s residence has been in Orangeville since the spring and yet the July matter proceeded on consent in Guelph. The Respondent (mother) was represented by counsel in the Guelph court proceeding including the two past consents.

[26] The Dufferin CAS didn't know that any issue existed with this family until they were called out to be a presence at the apprehension. Guelph CAS, not Dufferin, was called by the school and engaged by the police.

[27] By Section 91(2)(c) of the Act I have the discretion to have the matter transferred to Guelph or heard here. In my view the overwhelming preponderance of evidence here connects the matter to Guelph, not Orangeville.

Order

[28] I therefore make the following temporary order, not on consent:

1. The Application will be transferred to Guelph, shall be merged by court staff with Guelph file C228/18, and the temporary care and custody motion will take place on Tuesday, November 19th, 2019, at the Ontario Court of Justice, the Court House, 70 Woolwich Avenue, Guelph, ON N1H 3T6 at 10:00 a.m. for temporary care and custody motion/cross-motion(s) (allow one hour).

2. The Status Quo is continued until varied by further court order.

3. The Respondent (mother)'s address for service is: […].

4. Respondent (mother)'s material, currently filed loose in the file, shall be added to the Continuing Record by Orangeville court staff.

5. Respondent (father) to be served with a copy of this endorsement by regular mail at his last address on the records of the court by the CAS of Guelph and Wellington.

6. Courts admin are requested to expedite the transfer of this file to Guelph OCJ Family Court.

Justice B. E. Pugsley