Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: April 1, 2021 COURT FILE No.: C61859/13

BETWEEN:

CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO Applicant

— AND —

S.S. Respondent (mother)

— AND —

M.C. Respondent (Father of K.C.)

-AND-

T.N. (Father of K.S-N.)

-AND-

MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Moving party on the motion only

Before Justice Melanie Sager

Heard on March 9th and 12th, 2021 Reasons for Decision released on April 1, 2021

Counsel: Marshall Matias and Fatima Hussain........................................ counsel for the applicant society Gesta J. Abols........................................................................ counsel for the respondent (mother) Madeleine Sarick and Caterina E. Tempesta ...................................... counsel for K.C. and K.S-N. Respondent M.C. Father of K.C.......................................................................... No one appearing Respondent T.N. father of K.S-N.…………………………………………………………………. No one appearing Jocelyn Espejo-Clarke and Alex Kam…………………………….counsel for the Minister of Public Safety and Emergency Preparedness

Introduction

SAGER, J.:

[1] The motion before me on March 9th and 12th, 2021 was brought by the Minister of Public Safety and Emergency Preparedness (the Minister). The motion was heard within a Status Review Application. The Minister is not a party to this proceeding.

[2] The parties to the child protection proceedings ask the court to make an order pursuant to subsection 114 of the Child, Youth and Family Services Act (CYFSA) placing the children K.C. and K.S-N. in the care and custody of their mother subject to the society’s supervision for a period of six months. The parties agree that the society’s supervision of the mother is necessary in order to address ongoing risk of harm to the children and therefore is in the children’s best interests.

[3] The Minister’s involvement in this matter is a result of an outstanding deportation order affecting the mother and K.C. As the mother and K.C. are subject to removal from Canada pursuant to a valid deportation order, subsection 50 (a) of the Immigration and Refugee Protection Act (IRPA) states that provided the Minister is given the opportunity to make submissions before an order is made that may interfere with a deportation order, the deportation order is stayed. As a result, subject to receiving disclosure from the society, the Minister advises that he may wish to make submissions.

[4] The Minister requests the following orders:

(a) An order compelling the Catholic Children’s Aid Society of Toronto (the society) to provide him with the following : (i) Copies of all Status Review Applications and Statements of Agreed Facts Issued and/or filed with the court since 2015 to date; and, (ii) Copies of all Status Review Applications and Statements of Agreed Facts issued and/or filed with the court in the future until society involvement is terminated or the mother and K.C. obtain permanent or temporary immigration status in Canada.

(b) An order allowing for counsel of the Ministry of Public Safety and Emergency Preparedness (MPSEP) to attend this proceeding to present evidence and make submissions pursuant to subsection 50 (a) of the Immigration and Refugee Protection Act (IRPA) and obtain copies of all orders related to their participation in the proceeding;

(c) An order that the names and dates of birth of the Respondent T.C. and the child K.N. be redacted from the disclosure provided to the Minister; and,

(d) An order that any disclosure provided to the MPSEP and the Department of Justice cannot be copied (except for purposes of exhibits for litigation in a Court), disclosed or disseminated in any way, and at the conclusion of this case or when the mother and K.C. obtain permanent or temporary immigration status, the disclosure shall be destroyed.

[5] The society, mother and Office of the Children’s Lawyer (OCL) on behalf of K.C. and K.S-N., all oppose the relief the Minister is requesting except that they do not oppose the Minister making submissions prior to any final orders being made by the court. They ask that the balance of the Minister’s Motion be dismissed.

[6] The fathers of K.C. and K.S-N. did not participate in the motion.

Background of the litigation

[7] The background of this case was succinctly set out by Justice Robert Spence in Catholic Children’s Aid Society of Toronto v. S.K.S., 2019 ONCJ 899 (hereinafter referred to as S.K.S.). Justice Spence heard the society’s motion brought within a Status Review Application for an order “That the mother, S.S. [mother], and the children, Ki.., born March….2005 and Ke.., born March….2009, shall remain in the Province of Ontario and within the territorial jurisdiction of the Catholic Children’s Aid Society of Toronto. Paragraphs 6-34 of the decision set out the background of the case as follows:

[6] The mother and Ki.. are both citizens of St. Lucia. They arrived in Canada on December 16, 2007 as visitors, entitled to remain in Canada for six months. Mother and Ki.. lost their immigration status in 2008.

[7] The child Ke.. was born in Canada in 2009. She is a Canadian citizen and is not subject to any immigration proceedings.

[8] Following Ke..’s birth, the mother commenced a claim for refugee protection in May 2009.

[9] The Refugee Protection Division (RPD) refused that claim in July 2011. Upon the refusal of that claim the mother and Ki.. became subject to an enforceable removal order.

[10] Following the refusal of the mother’s claim by the RPD, the mother sought leave and judicial review from the Federal Court. The Federal Court dismissed the mother’s application for judicial review in October 2011.

[11] In November 2011, mother submitted an application to remain in Canada on the basis of humanitarian and compassionate grounds (H&C). The H&C application was subsequently refused in April 2012.

[12] Canada Border Services Agency (CBSA) has the responsibility to enforce removal orders. However, CBSA deferred enforcement when it subsequently learned that mother had an ongoing Family Court matter involving the child Ki.

[13] CBSA subsequently learned that mother had been charged – in 2013, and convicted in 2014 – of a “serious” criminal offence.

[14] Pursuant to the Immigration and Refugee Protection Act (IRPA), a section 44 report was issued stating that mother was inadmissible to Canada, pursuant to clause 36(1)(a) of IRPA, on the grounds of serious criminality.

[15] In October 2013, the society commenced a Protection Application under the Child and Family Services Act (CFSA), seeking a finding that the children Ki.. and Ke.. were both in need of protection pursuant to the CFSA. The society also sought a six-month society wardship order pursuant to the CFSA.

[16] On February 18, 2015, the Family Court made an order finding both children in need of protection and placed the children in the mother’s care and custody, subject to a number of terms and conditions, to be supervised by the society. The length of that supervision order was six months.

[17] Prior to the expiry of that six-month supervision order, the society issued a Status Review Application in which it sought a further six-month supervision order with the mother.

[18] That Status Review Application set out a number of ongoing protection concerns which remained, and which required continued monitoring and support from the society in the children’s best interests.

[19] On November 9, 2015, the Court made a further six-month supervision order. That order contained 10 terms and conditions, all of which were intended to address the ongoing protection concerns pertaining to the children.

[20] During 2015, the mother attended a number of pre-removal interviews with the CBSA. The mother was continuing to advise the CBSA of ongoing Family Court litigation.

[21] On August 17, 2016 the Court made a further six-month supervision order with the mother. There were eight terms and conditions attached to that supervision order, including the need for counselling services for parenting issues and ongoing mental health issues for mother.

[22] At some point in early 2017, the Minister became more specifically aware of the ongoing child protection proceedings and in May 2017 counsel from the Department of Justice attended Court on behalf of the Minister.

[23] The society and the Court continued to have concerns about the mother’s ability to adequately parent and to address the risks of harm to the children without Court involvement. Accordingly, on June 5, 2017, the Court made a further six-month supervision order, placing the children with the mother, subject to nine terms and conditions.

[24] The Minister was represented by counsel again on March 26, 2018 when the Court made a further six-month supervision order. Counsel for the Minister advised the Court on that date that the Minister would not be acting on the existing deportation order. Instead, the Minister would continue to monitor the progress of the child protection matter.

[25] That supervision order contained a number of terms designed to protect the children from risk of harm, including a requirement that the mother refrain from using physical discipline, that the mother continue with her counselling at both Aisling Discoveries for parenting, and Woodgreen Community Services for individual therapy. The mother was also required to work cooperatively with the society to ensure that the outcome of the psychological assessments on the children were implemented and, more particularly, in respect of Ki.’s social development.

[26] At the Court appearance on October 22, 2018, the Minister was again represented by counsel from the Department of Justice.

[27] Counsel for the Minister attended Court again on December 10, 2018.

[28] Because of ongoing protection concerns for the children, the Court made another six-month supervision order on January 9, 2019. The status review of that order was set for June 26, 2019, prior to the expiry of the six-month order.

[29] The parties – as well as counsel for the Minister – attended Court on June 26, 2019 on the first return date of the Status Review Application. The matter was adjourned on consent to October 16, 2019.

[30] On October 16, 2019, the parties and the Minister once again attended Court. Counsel for the Minister advised that the mother and the child were set to be removed from Canada on October 20, 2019.

[31] On that date, the Minister sought to be added as a party to this proceeding. The OCL opposed that request but did not oppose the Minister’s request to make submissions on the issue whether the Court should make a non-removal order in the face of the Minister’s removal order, and whether there was a legitimate need to maintain the supervision order.

[32] Justice Melanie Sager (the case management judge) made a temporary without prejudice non-removal order pending further order of the Court. Counsel for the Minister undertook not to act on the existing deportation order until the matter could be argued in full and a decision issued by the Court.

[33] The society then brought a formal motion seeking a non-removal order during the currency of the child protection proceedings. All parties, including the Minister were served, and the Court set November 27, 2019 for argument on that motion.

[34] On November 27, 2019 all parties (except for Ki..’s father who had previously been noted in default) appeared in Court, as well as counsel for the Minister.

[8] On December 19, 2019, Justice Spence released his decision on the motion heard on November 27, 2019, finding a genuine lis between the parties to the child protection proceedings and a continuing need for a supervision order to ensure the safety and well being of the children. Justice Spence granted the society’s motion for an order that the mother and K.C are prohibited from leaving the jurisdiction of this court “for the sole purpose of ensuring that the supervision order is carried out for the best interests, protection and wellbeing of the children, as mandated by the CYFSA”.

[9] On December 15, 2020, the parties attended in court and requested a final order in accordance with a signed Statement of Agreed Facts in support of a final order placing the children in the mother’s care subject to the society’s supervision for a period of six months. Counsel for the MPSEP advised the court that the Minister wished to bring a motion for disclosure so that he could decide whether he would seek to make submissions regarding the final order being requested by the parties. The Minister understood that the parties would not agree to provide the disclosure without a court order.

[10] The motion was heard on March 9th and 12, 2021 and the court relied upon the following:

(a) The Motion Record of the MPSEP containing a Notice of Motion, the affidavit in support of motion sworn by Baldeep Singh Bath on January 22, 2021, written submissions, and, a draft order. (b) The Affidavit of the Family Services Worker for the family, Duke Pratt, sworn February 22, 2021. (c) The unsworn affidavit of the mother which was affirmed prior to the commencement of argument. (d) Facta of the society and the OCL. (e) Written Reply Submissions from MPSEP.

The issues to be decided on the motion

[11] The following are the issues to be decided on the motion:

(a) Under what authority does the Minister have the right to bring this motion? (b) To what extent is the Minister permitted to make submissions to this court pursuant to subsection 50 (a) of the Immigration and Refugee Protection Act ? (c) Does this court have jurisdiction to order the society to provide the Minister with the disclosure requested? (d) If the answer to 11(c) above is yes, is the disclosure requested by the Minister necessary to allow him to make submissions to the court with respect to a final dispositional order on the Status Review Application pursuant to subsection 50 (a) of the IRPA ? (e) Should the Minister be furnished with future Status Review Applications and Statements of Agreed Facts without having to bring further motions? (f) What if any restrictions should be placed on the Minister’s use of disclosure ordered provided to the Minister by the society?

The Law – An Analysis of each party’s position on the issues

Issue #1 – Does the Minister have standing to bring this motion?

The position of the parties

[12] While the parties all provided a different road map for getting there, they all agree the Minister had the right to bring this motion before the court.

[13] For clarity, I allow this motion pursuant to subrule 14(2) of the Family Law Rules (FLR) which provides that “A motion may be made by a party to the case or by a person with an interest in the case.” It is not disputed by any of the respondents on the motion that the Minister has an interest in this case.

Issue #2 – To what extent is the Minister permitted to make submissions to this court pursuant to subsection 50 (a) of the Immigration and Refugee Protection Act ?

[14] As the answer to this question impacts the court’s decision on the other issues raised on this motion, this issue should be addressed by the court first.

(a) The Minister’s position

[15] The Minister submits that the stay of the deportation order granted by subsection 50 (a) of the IRPA will only be activated if he is afforded the opportunity to make informed, meaningful submissions prior to this court making a final supervision order. Informed and meaningful submissions, according to the Minister, includes submissions on whether there is a genuine lis between the parties to the child protection proceeding or whether the parties are attempting to use the CYFSA to defeat the deportation order.

[16] As the parties have no interest in making submissions on the issue of a genuine lis, the Minister argues that he should not be barred from doing so, otherwise his interests will not be represented and properly before the court in the context of subsection 50 (a) of the IRPA.

[17] The Minister takes the position that if he is denied the opportunity to make “meaningful” submissions the stay of the deportation order afforded to the mother and K.C. pursuant to subsection 50 (a) of the IRPA will not be activated.

(b) The position of the parties to the Child Protection Proceeding

[18] The society, mother and OCL (hereinafter referred to as the parties) all agree that the Minister should be afforded the opportunity to make submissions prior to any further orders in this case but the parties reject the Minister’s submission that he must be afforded the opportunity to make “meaningful submissions”. They argue that had the legislature intended for the Minister to be afforded the right to make meaningful submissions, the word “meaningful” would have been included in subsection 50 (a) of the IRPA.

[19] As there is overlap in the positions put forward by the parties, I will address them together. I will set out below the various arguments made by the parties in support of their conclusion that significant restraints must be placed on the Minister’s right to make submissions on the supervision order being requested by the parties.

[20] The parties’ position is that the Minister is only permitted to make submissions, not “meaningful” submissions, and that his submissions must be limited to what he has knowledge of, specifically, the immigration matter. The OCL argues that the Minister is entitled to be notified of the order the society is seeking that may impact an existing deportation order and be notified of the date upon which it may make submissions and nothing else.

[21] The mother submits that if the Minister is permitted to argue that there is no genuine lis between the parties requiring a supervision order, that would result in the Minister attempting to call evidence and as a non party, the Minister is not permitted to do so. The mother’s objection to the Minister making submissions on the substantive issue before the court is grounded in the fact that he has not been added as a party to the proceeding and therefore should be limited to making submissions as an interested party only.

[22] The society argues that the Minister’s submissions must be focused on the evidence and facts of the immigration matter as opposed to the whether the orders being sought by the society pursuant to the current Status Review Application are pursuant to a genuine lis between the parties as that issue has already been decided by Justice Spence’s decision in S.K.S. referred to above dated November 27, 2019. At paragraph 98 of his decision, Justice Spence wrote, “In the same way that there was a lis at the time of the commencement of the society’s Protection Application, that lis continued as the protection proceedings remained before the court; and it continued as the Court made various supervision orders, including the supervision order dated January 9, 2019. And that lis continues today.”

[23] Both the society and the OCL argue that the Minister’s submissions ought to be limited to evidence in relation to the immigration matter as the Minister has no expertise in child protection proceedings.

[24] The parties submit that this court should not interpret Federal legislation in a manner that assists the Minister in achieving his goal of deporting the mother and K.C. which is in direct conflict with the paramount purpose of the CYFSA which is to “promote the best interests, protection and well-being of children”. The parties urge the court to interpret subsection 50 (a) of the IRPA conservatively. They say importing the word “meaningful” into the subsection gives an expansive definition which the court ought not to do as it has the effect of benefitting the Minister who is attempting to deport the mother and older child.

[25] The OCL argues that it is for the court to decide if there is a genuine lis between the parties, not the Minister. The OCL says that the presence of the Minister at the hearing is sufficient to put the court on notice that it must be alert to the issue of whether there is a genuine lis but that the Minister is not permitted to make submissions on the issue. In other words, the OCL argues that the Court does not need to hear from the Minister and should decide the issue without their input.

[26] The OCL also says that as the society is a state player who is obliged to act fairly and share all evidence with the parties whether favourable to the society or not, the Minister’s role in child protection cases should be treated differently and more restrictively then in domestic cases in which the Minister has been afforded the opportunity to make unfettered submissions.

[27] The OCL argues that this court should not look to decisions made in domestic proceedings for guidance on this issue as they are very different from a child protection case for the following reasons:

(a) Children in child protection proceedings enjoy the benefit of the statutory requirement of privacy. (b) Domestic proceedings are more likely to involve parties who are attempting to use the family legislation to defeat a deportation order, especially with the number of self represented parties who have not had the benefit of legal advice. (c) Child protection proceedings involve a state party akin to a Crown in a criminal matter, who has an obligation to share all evidence favourable to its case or not.

Analysis of the parties’ positions with respect to Issue #2

(i) The limited child protection case law addressing the Minister’s role pursuant to subsection 50 (a) of the Immigration and Refugee Protection Act

[28] The parties and the Minister agree that a case on point could not be found. There is no reported case law specifically addressing the extent to which the Minister has the right to make submissions pursuant to subsection 50 (a) of the IRPA. I must therefore determine if the society, mother and OCL are correct that the Minister’s submissions must be limited to the immigration matter and not in relation to the issues in the child protection proceeding and more specifically, whether there is a genuine lis based on the law and evidence, independent of the immigration matter.

[29] Justice Spence’s decision in S.K.S. provides support for the Minister’s position on this motion. Justice Spence noted in his decision that the Minister was given the opportunity to make full submissions with no time limitations. In fact, Justice Spence heard the Minister’s submissions as to whether a genuine lis exists between the parties without objection from any of the parties. At paragraph 37 of his decision, Justice Spence writes, “The Minister subsequently during argument was given permission by the Court to make submissions on whether there was a continuing need for a supervision order. The other parties did not object to the ability of the Minister to make these submissions.”

[30] In Justice Carolyn Jones’ decision in The Office of the Children’s Lawyer v. N.D. and the Children’s Aid Society of Toronto, Court file No. FO-14-00071750, Justice Jones ordered the Minister to be provided with motion materials on a care and custody motion, which had been heavily redacted by the Applicant, without redaction other then initializing the parties and children’s names. Justice Jones rejected the OCL’s argument that the Minister should be required to make submissions first and then be excluded from the courtroom for the balance of the motion thereby not being present to hear the submissions of any of the parties. Justice Jones permitted the Minister, who was not made a party to the case, to be present for the entirety of the motion and no restrictions were placed on the Minister’s right to make submissions.

(ii) Can the court find guidance on this issue from the domestic case law involving the Minister?

[31] When asked if the domestic case law would be of assistance on this matter, the parties argued that the court should not look to domestic case law for guidance on this issue as child protection proceedings are different and private making domestic decisions of little assistance to the court.

[32] I do not find this argument persuasive as the effect of the Minister not being afforded the opportunity to make meaningful submissions is the same whether in a domestic case or a child protection proceeding; the deportation order is arguably not stayed.

[33] I also reject the argument that domestic proceedings require more involvement from the Minister as litigants in domestic proceeds may be colluding to frustrate the deportation order whereas the society is state player that should not engage in such behaviour. It cannot be said that the Minister’s submissions must be limited because the society is a state player as the potential for parties in a child protection proceeding to pursue orders that would frustrate a deportation order exists and therefore, the Minister must be afforded the opportunity to make submissions addressing the potential improper use of the child protection legislation when he deems necessary. It will be for the court to decide what order ought to be made after hearing from all interested parties. I do not see any difference in a child protection proceeding as compared to a domestic one such that the Minister should be significantly more restricted in what they are permitted to make submissions on.

[34] There is no shortage of domestic case law in which the Minister was given the opportunity to make full submissions before an order was made pursuant to the Children’s Law Reform Act. In the reported cases the Minister was not limited to making submissions only on the immigration matter. In fact, the Minister was afforded the opportunity to cross examine witnesses in some cases and make full submissions on the substantive issues before the court, including whether there is a genuine lis between the parties. There appears to be no objection registered by the parties or discussion about the extent to which the Minister can make submissions in the domestic case law.

[35] I disagree with the parties’ position that this court should find no guidance in domestic case law. I cannot ignore the manner in which Judges in this court have managed the Minister’s involvement in family law cases where a valid deportation order exists. It is particularly difficult to ignore this area of case law when counsel for the parties did not provide the court with a single reported decision that supports their submission that there must be strict limitations placed on the subject matter of the Minister’s submissions in a child protection case.

[36] In domestic cases the courts have seen fit to give the Minister broad rights to participate in hearings and motions. One can only assume that such rights were afforded to the Minister by the court to ensure that if the court’s order following the hearing impacts the deportation order, the Minister would respect the decision and stay the deportation order pursuant to subsection 50 (a) of the IRPA.

[37] I find that both the domestic and child protection case law provides support for the Minister’s position that he should be permitted to make meaningful submissions including on the existence of a genuine lis between the parties.

(iii) What impact, if any, does Justice Spence’s decision on the society’s request for a non removal order dated November 27, 2019, have on this motion?

[38] Despite Justice Spence affording the Minister the opportunity to make lengthy and full submissions in S.K.S., the OCL and the society urge the court to draw on Justice Spence’s decision in support of their position as opposed to domestic case law. In S.K.S. Justice Spence said that the Minister “has no expertise in deciding whether a child is in need of protection, what the evidentiary basis for such determinations are, and the considerations the Court is required to look at in deciding what kinds of orders must be made following a finding that a child is in need of protection.” I find that Justice Spence’s statement is taken out of context by the parties.

[39] This decision followed a motion brought by the society for an order prohibiting the removal of the mother and children from Ontario. The children had been placed in the mother’s care subject to the society’s supervision pursuant to an order made on January 9, 2019. This order was made without the Minister being given the opportunity to make submissions. As a result, the Minister advised that the MPSEP intended to take steps to carry out the deportation order which led to the society’s motion. The society argued that the non-removal order should be granted otherwise the supervision order would be rendered useless if the mother and the children left the jurisdiction.

[40] In his decision, Justice Spence concluded that as the Minister was not afforded the opportunity to make submissions prior to the January 9, 2019 order, “the supervision order did not act as an automatic bar to the enforcement of the removal order” pursuant to subsection 50 (a) of the IRPA.

[41] In addition to hearing the society’s motion, Justice Spence invited the Minister to make submissions on “whether there was a continued need [emphasis mine] for a supervision order”. The minister argued that it could not make meaningful submissions as it required additional disclosure. Justice Spence rejected that argument noting that the Minister was in possession of a significant number of documents from the child protection proceeding.

[42] The Minister then argued that the parties were acting in bad faith “essentially colluding in the making of supervision orders for the sole purpose of defeating the Minister’s valid deportation order.” This led to Justice Spence’s statement that the Minister has no expertise in child protection matters.

[43] Justice Spence’s comments must be considered in the context of the motion before him. He offered the Minister the opportunity to make submissions on the continued necessity of a supervision order; not whether the appropriate order was made by the court 10 months earlier on January 9, 2019. The Minister took the opportunity provided by Justice Spence to address the continued necessity of a supervision order to attack the validity of the order as opposed to making submissions on the need for an ongoing supervision order.

[44] Justice Spence’s rebuke of the Minister followed counsel’s attack on the validity of the order as of January 9, 2019, the date it was made. At paragraph 117 of his decision, Justice Spence writes, “It is not for the Minister to somehow suggest that the court was acting outside of its legal authority or that there was insufficient evidence placed before the court regarding the best interests of these children.” [emphasis mine]. It is clear from the use of the word “was” that Justice Spence was commenting on the Minister’s attack of an order that the court had already sought fit to make, an order that the Minister did not seek to set aside.

[45] The Minister did not bring a motion to set the order aside for lack of notice and opportunity to make submissions, so it was not open to the Minister to attack the basis upon which the order was made on January 9, 2019. For this reason, Justice Spence gave the Minister the opportunity to make submissions on the continued necessity of a supervision order.

[46] I also note Justice Spence’s footnote 15 where he indicates that the granting of the supervision order on January 9, 2019 would have acted as a bar to the enforcement of the removal order made by the Minister “assuming that following submissions, Justice Sager would have in fact decided to make that supervision order.” This is another example of the specific circumstances in which Justice Spence’s comments must be considered.

[47] The parties rely on Justice Spence’s decision to support their contention that the Minister should be limited to submissions on the immigration matter only, yet Justice Spence gave the Minister “an unfettered opportunity to make whatever submissions counsel deemed necessary” and “The court placed no time limits on argument for the Minister’s counsel.” There is also no reference to any party objecting to the Minister making “extensive submissions” including in relation to the genuineness of an ongoing supervision order.

[48] I find the society’s and OCL’s reliance on this particular statement by Justice Spence to be misguided. It was made in the context of the Minister attacking the validity of an existing order made 10 months earlier. Justice Spence’s comments do not amount to a finding that the Minister’s submissions on future orders cannot address the substantive issues and whether there is a genuine lis between the parties.

[49] I also reject the society’s argument that as Justice Spence found an ongoing lis between the parties, the issue of a genuine lis is res judicata and therefore the Minister is prohibited from making submissions to the contrary. Justice Spence’s comments certainly do not preclude another judge from finding that there is no genuine issue between the parties requiring a further supervision order. Justice Spence rightfully noted that as a supervision order was made by the court on January 9, 2019, which is still in effect, a “lis continues today”.

[50] The issue of whether a genuine lis existed between the parties on January 9, 2019 is res judicata. The Minister is asking to make submissions on the parties’ request for a new supervision order pursuant to the Status Review Application issued on June 22, 2020. This is a new Application which may result in a new supervision order and should it be granted by the court without giving the Minister the opportunity to make submissions, the stay of the deportation order would not be activated pursuant to subsection 50 (a) of the IRPA.

(iv) Is allowing the Minister to make meaningful and informed submissions contrary to the objectives of the Child, Youth and Family Services Act ?

[51] The parties argue that the Minister’s right to make submissions pursuant to the IRPA should be interpreted conservatively by this court, not expansively as the Minister’s goal is to deport the mother and older child. The OCL says that this court ought to be “cautious” when interpreting Federal legislation not to expand the meaning to the benefit of the Minister who is attempting to deport the mother and K.C., which, the OCL says, is clearly contrary to the children’s best interests.

[52] The parties are focused on the goal of the Minister to deport the mother and older child and caution the court not to make orders that in effect, assist in furthering that goal. This argument cannot succeed as this court is not assisting the Minister by permitting informed and meaningful submissions. It is not in the children’s best interests for this court to attempt to stifle the Minister in order to defeat or make more difficult his effort to deport the mother and K.C. To the contrary, by allowing the Minister to make meaningful submissions, it will be more likely than not that the stay of the deportation order will be triggered if this court makes an order that impacts the removal order. Any dispute about whether the stay afforded by subsection 50 (a) of the IRPA is triggered is a decision for the Federal Court.

[53] I find the parties’ argument that this court must limit the Minister’s submission is in fact contrary to the children’s best interests. The duties of this court do not include deciding whether the Minster was afforded the opportunity to make submissions pursuant to subsection 50 (a) of the IRPA. Rather, this court’s duty is to make decisions in the child protection proceeding in a manner that results in a process that protects orders of this court from scrutiny by the Federal Court not one that leaves the order vulnerable to attack.

[54] The society and OCL also seem willfully blind to the fact that this court must balance its obligation to decide the case before it pursuant to the CYFSA with the court’s duty to be fair and conduct the court’s business in a manner that promotes the administration of justice. The society and the OCL are effectively arguing that the court’s obligation to the children before the court is greater than to the administration of justice. I reject that argument and hold that this court must promote the objectives of the CYFSA in conjunction with its obligation to foster the administration of justice and to act fairly in doing so.

[55] The court would fail in its duty of fairness and responsibility to the administration of justice if the Minister was limited in the manner requested by the parties. In fact, the parties ask to put such severe restraints on the Minister’s submissions that he would be left only with the opportunity to tell me what I already know; that the mother and older child are subject to a deportation order.

[56] I therefore reject the parties’ argument that the Minister’s right to make submissions before this court should be severely restricted as I find that doing so would be contrary to the children’s best interests and to the administration of justice.

Conclusion regarding issue #2

[57] As this court makes orders impacting the best interests of children it wishes to ensure that its orders are enforceable and will be enforced in order to foster its intended purpose. To deny the Minister the opportunity to make meaningful submissions including whether a genuine lis exists between the parties seems contradictory to the goals and interests of the court in making court orders. Just as Justice Spence did in S.K.S., any court being asked to make a supervision order in the face of a deportation order will want to ensure that parents and children who are the subjects of the deportation order are not removed from the country rendering a supervision order useless because the Minister was denied the opportunity to make informed and meaningful submissions pursuant to subsection 50 (a) of the IRPA.

[58] By granting the Minister the opportunity to make informed and meaningful submissions, the court is ensuring the protection of its order and therefore the best interests of the children governed by the order.

[59] I reject the position of the society, mother and OCL that the Minister must be limited to submissions on the issue of the immigration matter only. I find that this would be an absurd limitation to place on the Minister considering that doing so may contribute to an order of this court being disregarded by the Federal court and the mother and K.C. being deported. Before any final order is made in a child protection proceeding in this court which may impact an existing deportation order, I find that the Minister ought to be permitted to make submissions to this court on all relevant issues, including whether there is a genuine lis between the parties that justifies the order being requested by the parties.

[60] I decline to put the limits urged by the parties on the Minister’s submissions in order to protect the integrity of any order made in this proceeding should it impact the deportation order and trigger subsection 50 (a) of the IRPA.

Issue #3 - Does this court have jurisdiction to order the society to provide the Minister, who is not a party to the proceeding, with the disclosure requested?

The parties’ positions

(a) The society’s position

[61] The society’s position on this issue was difficult to pin down. Their factum provides that “There is no authority under which to provide the requested disclosure, and the requested disclosure is not necessary for the stated purpose as set out in section 50 of the Immigration and Refugee Protection Act”. The society’s factum also provides that this court does not have the authority to require it to provide the requested disclosure to the Minister as requiring it to do so would violate sections 1 and 87 of the CYFSA.

[62] In oral submissions the society conceded that the court may have the authority to provide the Minister with the disclosure requested pursuant to its authority to control its process but that the Minister has not clearly set out the pathway for doing so.

[63] The society argues that as the Minister’s submission should be limited to the immigration issue, the disclosure requested by the Minister is not necessary for the purpose of making submissions pursuant to subsection 50 (a) of the IRPA. As I have determined that the Minister’s submissions should not be subject to unreasonable limitations, this argument does not require analysis.

[64] The society argues that if parents and children knew that any admissions made by them and contained in material in a child protection proceeding could be used in other proceedings, especially when adverse to their interests, they would be put in an impossible position. This court can address the society’s concerns by prohibiting the Minister from being permitted to use any documents provided to him in any other proceeding.

[65] The society says that the true purpose of the Minister’s requesting this disclosure, is to bolster his case before the Federal court should the mother or K.C. bring a motion for a stay of the deportation order. As such, the disclosure requested should not be provided by this court for the Minister’s true intended purpose.

[66] The society also argues as Justice Spence already found there to be a genuine lis between the parties in the child protection proceeding there is no basis upon which to order the disclosure as the Minister cannot argue otherwise. As I have already found that the Minister shall be permitted to make submissions on the existence of a genuine lis, this argument must fail.

(b) The mother’s position

[67] The mother submits that the court has the authority to order the society to provide the Minister with disclosure pursuant to subrule 14(2) of the FLR. Counsel argued that there would be little purpose in allowing a non-party to bring a motion if the court lacked the authority to grant the relief requested.

[68] The mother’s position is that the disclosure ordered should be the absolute minimum the Minister requires to make submissions in accordance with subsection 50 (a) of the IRPA. This position must be considered together with the mother’s position that the Minister should only be permitted to make submissions on the immigration matter, not on issues in the child protection case.

(c) The position of the Office of the Children’s Lawyer

[69] The OCL argues that this court has no authority to order the society to provide the Minister with disclosure from the child protection proceeding before the court.

[70] As set out above, the OCL, like the society, argues that while the Minister’s request to make submissions pursuant to subsection 50 (a) of the IRPA should be granted, it is inappropriate and unnecessary for the Minister to be provided with the disclosure requested as the Minister’s right to make submissions should be construed narrowly to include information within his knowledge and control regarding the immigration proceeding involving the mother and K.C. Once again, as this argument has been rejected, an analysis of this position is not required.

[71] The OCL echoes the society’s argument that the Minister’s request for disclosure is not to assist in determining if there is a genuine lis between the parties in the child protection proceeding, but rather to gather evidence for use in the Federal court to assist with the removal of the mother and K.C. from Canada. As such, the OCL argues that this court should not make orders to assist the Minister.

[72] The OCL’s position is that the Minister is not entitled to the disclosure it is seeking as it is not in a position to make submissions on what is in the children’s best interests considering his goal is to remove the mother and K.C. from Canada, which is “anathema” to the CYFSA.

[73] Like the society, the OCL argues that the mother and children enjoy the statutory privacy protections under the CYFSA and that this cannot be violated by an order requiring the society to provide the Minister with disclosure, as a non party, he is not entitled to.

[74] The OCL says that the children are entitled to heightened privacy rights when involved in litigation and points to the recognition of the United Nations Convention on the Rights of the Child in the preamble to the CYFSA, which calls for children to be afforded special safeguards. Granting the Minister’s request, the OCL argues, would provide these children with less privacy protections as opposed to the enhanced privacy rights they are entitled to.

The Law

[75] The parties and the Minister agree that there does not seem to be a reported case on point. The court was provided with a joint Brief of Authorities that included many decisions that provides the court with some guidance. They include child protection cases, civil law cases including domestic cases, and cases between the MPSEP and individuals subject to deportation orders. The difference between the cases provided in the joint Brief of Authorities and this case is that the moving party on this motion is not a party to the proceeding and is not requesting to be made a party. In other words, no reported case could be found in which the Minister was requesting disclosure in a child protection proceeding to assist it in making submissions pursuant to subsection 50 (a) of the IRPA.

(d) Do the decisions of Justice Carolyn Jones in The Office of the Children’s Lawyer v. N.D. and M.S. and the Children’s Aid Society of Toronto and Justice Victoria Starr in Children’s Aid Society, Region of Halton v. M.M. assist the court in deciding this issue?

[76] The parties to the motion were provided with two decisions from this court and asked whether the court can rely on these decisions as support for the finding that this court has the authority to grant the Minister’s request for disclosure for the purpose of making submissions pursuant to subsection 50 (a) of the IRPA.

The Office of the Children’s Lawyer v. N.D. and M.S. and the Children’s Aid Society of Toronto

[77] The court provided the parties with a transcript of the decision of Justice Carolyn Jones in The Office of the Children’s Lawyer v. N.D. and M.S. and the Children’s Aid Society of Toronto, dated October 9, 2014 (hereinafter referred to as N.D.). In this decision, Justice Jones was asked by the Minister, in the face of opposition from the OCL, to be furnished with motion materials served and filed on a care and custody motion and to be given the opportunity to make submissions on the motion pursuant to subsection 50 (a) of the IRPA as the outcome of the motion may impact a deportation order. The OCL argued that the motion materials should be significantly redacted before being given to the Minister and that the Minister should not be permitted to be in the courtroom other then when counsel for the MPSEP is making submissions and that such submissions should be made first, so without the benefit of hearing the Applicant’s, society’s or mother’s submissions.

[78] Justice Jones found that the Minister has a limited interest in the motion before the court and ordered that he be provided with the motion materials which shall be redacted to provide only the initials of the parties and children, and, that the Minister be given the opportunity to attend the motion and make responding submission on the issues after hearing the submissions of the Applicant.

[79] Justice Jones ordered that the Minister, who was not made a party to the proceeding, would have no further right to participate in the case without leave of the court and that the motion materials provided to the Minister shall only be used for the purpose of making submissions on the motion and shall not be copied or distributed or used in any other proceeding without further order of this court.

[80] In reaching her conclusion, Justice Jones accepted the Minister’s submissions that he “will be in a better position to formulate meaningful submissions if the Minister has an opportunity, through counsel, to review the relief sought and the evidence upon which the claims are based, and if his counsel is permitted to be present during the submissions on the motion.”

[81] Justice Jones found that the court had the discretion to allow the Minister to make submissions if the court was of the view that it would be in the best interests of the child to grant such standing. In deciding to exercise her jurisdiction to grant the Minister standing to make submissions, Justice Jones considered the likely consequence to the child before the court of either granting or not granting the Minister the opportunity to make submissions in relation to subsection 50 (a) of the IRPA.

[82] In an effort to demonstrate that the Child and Family Services Act (CFSA) (predecessor to the CYFSA) contemplates and provides for the involvement of interested parties, Justice Jones reviewed sections of the CFSA which granted limited standing to persons who may have an interest in the substantive issues before the court and by virtue of that standing, are able to make submissions. Justice Jones also addressed the privacy provisions of the CFSA and determined that the court could impose appropriate conditions on the Minister’s involvement that would protect the parties and children’s privacy.

[83] Counsel for the society in the case before me argued that the disclosure order of Justice Jones in N.D. was appropriate in the circumstances of that case where no finding in need of protection or dispositional order had yet been made and the Minister had an interest in the outcome of the motion as it may impact the deportation order. In other words, the society argues that the Minister had a right to the disclosure in the case before Justice Jones at first instance in order to make submissions at the care and custody motion, the outcome of which, would have an impact on the removal order.

[84] The society argues conversely, that in the case at hand, the disclosure order should not be granted as there has already been a finding in need of protection and a dispositional order, which the society argues, makes the Minister’s interest in this case very different from his interest on the case before Justice Jones. The existence of a finding in need of protection and a dispositional order, the society argues, significantly impacts the submissions that can be made by the Minister which in turn effects what disclosure is required to make those submission.

[85] I find this argument to be without merit. The IRPA provides a deportation order impacted by a subsequent order is stayed provided the Minister is given the opportunity to make submissions on the offending order. It does not matter what stage of a proceeding the order is made. An order made at any stage of a case triggers subsection 50 (a) of the IRPA if it impacts an existing deportation order. In such circumstances, the Minister must be given the opportunity to make submissions or the stay is not activated. It only follows that the Minister requires advanced notice of the evidence upon which the party is seeking the order to allow counsel for the Minister to make informed and meaningful submissions.

[86] The society’s submissions cannot be reconciled with their position on the motion for a non removal order before Justice Spence where it did not argue that the Minister was not entitled to the motion materials because there had already been a finding and dispositional order. In fact, the society has not objected to counsel for the MPSEP monitoring this case for quite some time by being present in the courtroom for each appearance during which no limitations were placed on discussions.

[87] The OCL argues that Justice Jones acted without authority in N.D. Counsel for the OCL on this matter was also counsel on N.D. Justice Jones’ decision was not appealed.

Children’s Aid Society, Region of Halton v. M.M.

[88] In Children’s Aid Society, Region of Halton v. M.M., 2016 ONCJ 237, Justice Victoria Starr was asked to order the Children’s Aid Society, Region of Halton (CASRH) to provide a Band with a copy of the Protection Application before the child’s status was determined by the court. The CASRH opposed the order being requested on the basis that it had not yet been determined if the child was an Indian or native person (this is the language used in the CFSA) and therefore the Band was not entitled to service. The CASRA further argued that once a Band is served with the Protection Application it is elevated to party status and that should not take place before the child’s status is determined.

[89] Justice Starr decided that interpreting the CFSA and the FLR to prohibit a Band from being provided with a copy of the Protection Application prior to the determination of the child’s status is inconsistent with the “underlying purpose of the special objectives and provisions of the Act” in relation to children who may be Indian or Native.

[90] Justice Starr relied on rule 2 of the FLR to order the society to provide the Band with a copy of the Protection Application stating that this rule grants the court authority “in all cases to control its process and to make procedural orders that will promote the primary objective to deal with cases justly and fairly. The court’s discretion is broad and can easily extend to making orders that a party give notice of a claim by serving documents to a third party.”

[91] The OCL argued that Justice Starr acted without authority in M.M.

[92] While counsel for the society and the mother conceded that a judge in this court has the authority to order the society to provide the Minister with disclosure, they did not concede that such power should be utilized in this case. Furthermore, the OCL takes the position that both cases were wrongly decided. Therefore, I must determine if the authority exists for this court to order the society to provide the disclosure requested by the Minister on this motion.

(e) Does the Child, Youth and Family Service Act explicitly grant or deny the court the authority to make the orders requested by the Minister?

[93] As a statutory court, I first look to the CYFSA to determine if it either specifically prohibits or allows the court to grant the relief requested by the Minister.

[94] The CYFSA does not provide the court with the explicit authority to grant the relief requested by the Minister nor does it explicitly prohibit such an order.

(f) Does section 87 of the Child, Youth and Family Service Act prohibit this court from making the disclosure order requested by the Minister?

[95] The parties all relied on section 87 of the CYFSA to support their position that the court cannot grant the order for disclosure as doing so would violate the privacy provisions afforded to the parties by the CYFSA. I disagree.

[96] Subsection 87(4) provides that child protection hearings shall be private unless the court orders otherwise after considering the wishes and interests of the parties; and, whether the presence of the public would cause emotional harm to a child who is a witness at or a participant in the hearings or is the subject of the proceedings. Subsections 87(5), (6) and (7) address when and how media representatives may be present at a hearing and conditions and limits that may be ordered by the court on their reporting. Finally, subsection 87(8) prohibits anyone from publishing or making information public that has the effect of identifying a child, parent, foster parent or family member participating in or the subject of a child protection proceeding.

[97] There is no absolute prohibition contained in the CYFSA to members of the public being in the courtroom during child protection proceedings. The court has the authority to grant permission to third parties to be present in the courtroom and such permission is often granted to extended family, support workers, friends and professionals working with a party or child.

[98] The CYFSA does not explicitly prohibit this court from ordering the society to provide copies of court documents or other disclosure to a non-party in child protection proceedings. Disclosure of documents from child protection proceedings are ordered to be provided to parties in a domestic proceeding; to professionals working with parents and/or children; and in the cases of Justice Jones and Justice Starr noted above, documents were ordered disclosed to the Minister and to a Band.

[99] I also reject the society and OCL’s argument that subsection 87(8) of the CYFSA prohibits this court from making the order requested by the Minister. This subsection prohibits anyone from publishing or making public any information that has the effect of identifying a party or child or family member in a child protection proceeding and the Minister must comply with this provision of the CYFSA.

[100] If provided with the documents requested, the Minister is bound by subsection 87(8) of the CYFSA for which he would be subject to “a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both” pursuant to subsection 142(3) of the CYFSA if he is convicted of contravening this section.

[101] As Justice Jones demonstrated in N.D., the Minister can also be ordered not to copy or use the documents for any purpose other than making submissions in this proceeding which will mitigate the concerns regarding the privacy of the parties’ and the children.

[102] In addition, the Minister has been monitoring this case for years. Counsel for the Minister has attended at several court appearances without objection from the parties, and in the past, the Minister was provided with copies of many of the documents served and/or filed in this case. The Minister is in possession of a significant amount of sensitive information and there is no allegation before the court that the Minister has published or made public any of this information.

[103] While the CYFSA does not explicitly prohibit this court from making the disclosure order requested by the Minister, I am mindful of the importance of the privacy protections afforded to the parties and the children by the CYFSA and the necessity to find a compelling reason to infringe their statutorily protected right to privacy.

[104] A balancing of the parties’ and children’s right to privacy with the potential consequences to them of refusing to allow the Minister to make informed submissions favours the Minister receiving the disclosure. The Minister must be afforded the opportunity to make informed and meaningful submissions before a further supervision order is made by this court. If he is not afforded that opportunity, the mother and K.C. may be denied a stay pursuant to subsection 50(a) of the IRPA and be deported. As a result, the parties’ privacy rights must be impacted in so far as it is necessary to allow the Minister to make informed submissions. The court can and will lessen the impact of the intrusion into the parties’ privacy by placing strict controls on how the Minister can use the documents.

(g) Do the Family Law Rules explicitly grant or deny the court the authority to make the orders requested by the Minister ?

[105] As the CYFSA does not explicitly prohibit this court from granting the relief requested by the Minister nor does it specifically authorize such authority I will now consider if the FLR empower this court to make the orders requested.

[106] Rule 1 of the FLR states that the rules apply to parts V, VI, and VII of the CYFSA and therefore the FLR apply to this case.

[107] Subrule 1(7.1) provides that the court can make an order under subrule (7.2) at any time during a case and that the power to do so “exists unless these rules expressly provide otherwise”.

[108] Subrule 1(7.2) states,

(7.2) For the purposes of promoting the primary objective of these rules as required under subrules 2 (4) and, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including an order [emphasis mine],

(a) that a party give to another party an affidavit listing documents that are relevant to the issues in a case and that are in the party’s control or available to the party on request, or that a party make any other disclosure, within a specified time; (b) limiting the number of affidavits that a party may file, or limiting the length of affidavits that a party may file (excluding any exhibits); (c) that any motions be brought within a specified time; (d) that a statement setting out what material facts are not in dispute be filed within a specified time (in which case the facts are deemed to be established unless a judge orders otherwise); (e) that questioning be conducted in accordance with a plan established by the court, be subject to a time limit or be limited with respect to scope; (f) limiting the number of witnesses; (g) that all or part of an affidavit or any other evidence filed at any stage in a case, and any cross-examinations on it, may be used at a hearing; (h) that a party serve and file, within a specified time, a written summary of the anticipated evidence of a witness; (i) subject to subrule (7.3), that a party or witness give any or all of their evidence by affidavit or by another method not requiring attendance in person; (i.1) subject to subrule (7.3.1), that all or any part of a case be heard using telephone or video technology; (j) that oral evidence be presented, or that any oral evidence be subject to a time limit; (k) that any expert witnesses for the parties meet to discuss the issues, and prepare a joint statement setting out the issues on which they agree and the issues that are in dispute; (l) that a party serve and file a summary of argument; (m) that a party provide to the court a draft order (Form 25, 25A, 25B, 25C or 25D) setting out the relief that he or she is seeking; (n) identifying the issues to be decided at a particular hearing; (o) that the parties appear before the court by a specified date; (p) that a case be scheduled for trial or that a trial management conference be conducted; and (q) that a trial be limited to a specified number of days and apportioning those days between the parties. O. Reg. 69/15, s. 1 (1); O. Reg. 152/21, s. 1 (1).

[109] Subrule 2(2) provides that “The primary objective of these rules is to enable the court to deal with cases justly.” Subrule 2(3) provides that dealing with cases 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).

[110] Subrules 2(4) and (5) read as follows:

(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).

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial; (b) encouraging and facilitating use of alternatives to the court process; (c) helping the parties to settle all or part of the case; (d) setting timetables or otherwise controlling the progress of the case; (e) considering whether the likely benefits of taking a step justify the cost; (f) dealing with as many aspects of the case as possible on the same occasion; and (g) if appropriate, dealing with all or any part of the case without requiring parties, witnesses or lawyers to attend in person on the basis of written documents or by using telephone or video technology, by way of an order under clause 1 (7.2) (i) or (i.1). O. Reg. 114/99, r. 2 (5); O. Reg. 152/21, s. 2.

[111] Statutory courts overseeing family and child protection proceedings rely on Rules 1 and 2 of the FLR to control its process to ensure fairness, proportionality and to promote the administration of justice. These courts have relied on Rule 1 to make many procedural orders that promote the objectives of the rules and governing legislation but for which specific authority is not granted including,

(a) Orders requiring a party to obtain leave before commencing any further proceedings; (b) Orders excluding people from the courtroom who are interfering with the proceeding; (c) Orders dismissing a case where the claims made by the party have been abandoned; (d) Orders requiring hearings to proceed by video; and, (e) Orders requiring parties to notify interested third parties of the proceeding before the court.

[112] Rules 1 and 2 of the FLR provide the court with the tools to ensure that the court can make orders that allow it to carry out its duties in a fair and efficient manner. This court’s obligation is not just to the parties before it, but it is also to the public and the administration of justice. Section 71 of the Courts of Justice Act which provides for the implementation and administration of courts in Ontario sets out the goals of the legislation as follows:

71 The administration of the courts shall be carried on so as to,

(a) maintain the independence of the judiciary as a separate branch of government; (b) recognize the respective roles and responsibilities of the Attorney General and the judiciary in the administration of justice; (c) encourage public access to the courts and public confidence in the administration of justice; (d) further the provision of high-quality services to the public; and (e) promote the efficient use of public resources. [emphasis mine]

[113] It is essential for this court to carry out its duties in a manner that fosters confidence in the people of Ontario in the justice system and the judiciary. The FLR assist the court in meeting its mandate by ensuring it has the means to do what is necessary to ensure that cases are dealt with justly, fairly and efficiently.

[114] The decision of the Ontario Court of Appeal in J.H. v. F.A., 2009 ONCA 17, is a crucial reminder of the importance of the court’s role in fostering confidence in the public in the administration of justice. The court in J.H. v. F.A. on appeal, found that an order granted in a domestic proceeding prohibiting the removal of a mother and child from Ontario was made for the purpose of defeating a deportation order. The court said at paragraph 23, that “The purpose of non-removal orders under the CLRA is not to frustrate the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation but to prevent parents from removing children from the jurisdiction in contested family proceedings…”

[115] The court in J.H. v. F.A. said in no uncertain terms that family courts in Ontario and legislation promoting the best interests of children cannot be used to frustrate a deportation order. I must therefore consider the Minister’s motion in light of this court’s obligation to make certain that orders being requested in the child protection proceeding are for genuine purposes and not in any way intended to frustrate the deportation order.

[116] The case before me demonstrates the importance of statutory courts being empowered to control its process as it involves managing the interests of the parties, promoting the best interests of the children and controlling the involvement of a third party with a legitimate interest who represents the Canadian government and answers to the public. This court must be authorized to make orders necessary to allow it to carry out its duties in circumstances that are clearly not contemplated by the legislation governing the proceeding.

[117] In order for me to carry out my duties, I must be permitted to make orders pursuant to Rules 1 and 2 of the FLR to allow for the Minister, as a party with a genuine interest in this case, to make meaningful submissions on the issue of a genuine lis as no other party will make submissions that align with the Minister’s interests. In order for the Minister to be able to make informed submissions, he may require disclosure from the society. I find that subrule 1(7.2) of the FLR provides this court with the authority to grant the relief the Minister is seeking with respect to disclosure in order to control the progress of this case, carry out the court’s duties, and ensure the procedure is fair to all involved.

(h) Does this court have implied authority to make the disclosure order requested by the Minister?

[118] If I am wrong and subrule 1(7.2) of the FLR does not empower me to make the disclosure order requested by the Minister, I find that I have the implied authority to make the orders as a means of controlling the court process in this case.

[119] In R. v. Fercan Developments Inc., 2016 ONCA 269, the Ontario Court of Appeal was required to decide if a Judge of the Ontario Court of Justice has jurisdiction to order costs against the Crown with no express statutory authority to do so. The Crown argued that the judge lacked explicit or implied jurisdiction to order costs against the Crown in that case.

[120] At paragraph 41 of R. V. Fercan Developments Inc., the court sets out the general test for jurisdiction as follows:

[41] Jurisdiction refers to a collection of attributes that enable a court to issue an enforceable order or judgment. A court will have jurisdiction if it has authority over the persons in and the subject matter of a proceeding, and has the authority to make the order sought: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at para. 44.

[121] In paragraph 44-48, the Court of Appeal describes the powers and jurisdiction of a statutory court as follows:

[44] As a statutory court, the Ontario Court of Justice does not have any inherent jurisdiction and derives its jurisdiction from statute. It is well established that a statutory court or tribunal enjoys both the powers that are expressly conferred upon it and, by implication, any powers that are reasonably necessary to accomplish its mandate [emphasis mine]: Dunedin Construction Ltd. v. Canada (Minister of National Revenue), 2001 SCC 81, at para. 70. The jurisprudence has recognized that statutory courts possess certain implied powers as courts of law: R. v. Romanowicz (1999), 45 O.R. (3d) 506 (C.A.), at paras. 59-60. In addition, powers may be implied in the context of particular statutory schemes as well.

[45] This court recently considered the “doctrine of jurisdiction by necessary implication” in Pierre v. McRae, 2011 ONCA 187, 104 O.R. (3d) 321. Justice Laskin, at para. 34, noted that a power or authority may be implied: (i) when the jurisdiction sought is necessary to accomplish the objects of the legislative scheme and is essential to the statutory body fulfilling its mandate; (ii) when the enabling act fails to explicitly grant the power to accomplish the legislative objective; (iii) when the mandate of the statutory body is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction; (iv) when the jurisdiction sought is not one which the statutory body has dealt with through use of expressly granted powers, thereby showing an absence of necessity; or (v) when the legislature did not address its mind to the issue and decide against conferring the power to the statutory body.

[46] Whether a statutory court is vested with the power to grant a particular remedy depends on an interpretation of its enabling legislation: ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 36. When ascertaining legislative intent, a court is to keep in mind that such intention is not frozen in time. Rather, a court must approach the task so as to promote the purpose of the legislation and render it capable of responding to changing circumstances: Dunedin Construction Ltd. v. Canada (Minister of National Revenue), 2001 SCC 81, at para. 38.

[47] Furthermore, as in any other statutory interpretation exercise, courts need to consider the legislative context when interpreting the legislation at issue: ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, at para. 49.

[48] Finally, I note that the power being conferred does not have to be absolutely necessary. It only needs to be practically necessary for the statutory court or tribunal to effectively and efficiently carry out its purpose: Dunedin Construction Ltd. v. Canada (Minister of National Revenue), 2001 SCC 81, at para. 71. [emphasis mine]

[122] While a statutory court does not have inherent jurisdiction, the power it has to control its process is significant and described by the court in R. v. Fercan Developments Inc., as follows:

[51] A statutory court also has the power to control its own process. That power is necessarily implied in a legislative grant of power to function as a court of law: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19.

[52] The Supreme Court of Canada has discussed the power of statutory courts to control their process in Cunningham and in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3. Other than noting that this power cannot contravene explicit statutory provisions or constitutional principles like the separation of power, the court did not discuss the outer limits of a statutory court’s ability to control its own process in either decision. However, in both cases, the court treated a statutory court’s ability to control its own process as largely parallel to a superior court’s ability to control its own process.

Discussion

[123] In this case the court must decide what order it should make in relation to the mother and children pursuant to the CYFSA. The parties ask the court to make an order placing the children in the mother’s care subject to the society’s supervision. If an order of this court requiring the society to supervise the mother’s parenting is to have any meaning at all, the mother and K.C. cannot be deported. In order to stay the deportation of the mother and K.C., the Minister must be afforded the opportunity to make informed and meaningful submissions on the necessity or validity of a supervision order. For the Minister to make such submissions, he must know the evidence upon which the parties rely in seeking the order. He may also require additional disclosure for context, depending on the circumstances of the case.

[124] If I am unable to order the society to provide the Minister with the disclosure he requires to allow him to make meaningful submissions, then I am completely without power to do exactly what I am entrusted to do in this case. That cannot be the intention of the CYFSA and/or the FLR.

[125] Part of the court’s duty is to be satisfied that the CYFSA is not being used to defeat or frustrate a deportation order. I find that I must be able to use powers granted to the court to control the court process, either by the FLR or through the implied powers conferred to this court, to carry out my duties and obligation to the parties, the public and the administration of justice.

[126] The society and the OCL both argue that this court should not utilize the implied authority of the court to grant the orders the Minister is requesting as his ulterior motive is to obtain information for use in the Federal court, something this court should not assist with.

[127] Any disclosure order made by this court in the Minister’s favour cannot be viewed as this court’s assistance in deporting the mother and K.C. This court can only control its process and I reject this argument. The focus of this court is to ensure that the Minister is not denied the opportunity to make informed submissions to this court before making an order, the effect of which would be to nullify the benefit of the stay granted in subsection 50 (a) of the IRPA. Once again, I find that an order denying disclosure on the basis argued by the society and the OCL would be contrary to the children’s best interests.

[128] The parties take the position that I cannot order what must be ordered in this case. That cannot be correct for the following reasons:

(a) I have authority over the parties in the proceeding and the subject matter; (b) The CYFSA neither explicitly grants the power for me to the make the order nor prohibits it; (c) The CYFSA does not address the particular circumstances of this case; (d) The FLR permit me to make procedural orders, which includes orders for disclosure, that are just and promote the primary objective of the rules; (e) An order requiring the society to provide the Minister with disclosure does not contravene any explicit statutory provision binding this court; and, (f) The order being requested by the Minister is necessary for this court to promote the objectives of the CYFSA and effectively and efficiently carry out its duties.

Conclusion regarding Issue #3

[129] In order to execute my judicial duties, I find that the Minister requires information upon which he can inform himself and make submissions to this court on the final supervision order being requested by the parties in this case. I find that I have the authority to make that order pursuant to rule 1(7.2) or pursuant to the implied jurisdiction of this court.

Issue #4 Is the disclosure requested by the Minister necessary to allow him to make informed and meaningful submissions on the supervision order being requested by the parties?

[130] The Minister has requested an order for copies of all Status Review Applications issued by the court and Statements of Agreed Facts signed and filed by the parties since 2015.

[131] The parties argue that as Justice Spence found there to be a genuine lis as of November 27, 2019, the Minister should only be entitled to disclosure after that date.

[132] The Minister argues that as Status Review Applications require a consideration of what has changed since the previous protection order, they require information dating back to 2015 for context. The Minister is already in receipt of some of the previous Status Review Applications and Statements of Agreed Facts.

[133] I do not agree with the parties that disclosure should not predate Justice Spence’s order. The Minister has requested nominal disclosure. It is not unreasonable for the Minister to wish to put each order in context in relation to the last order. It is not open to the Minister to argue that any previous orders made by the court were improper but it is not unreasonable for the Minister to wish to review the facts in support of previous supervision orders when deciding whether to make submissions on the order the parties are currently requesting.

Issue #5 What if any limitations should be placed on the use of the disclosure once provided to the Minister by the society?

[134] The Minister’s Notice of Motion requests an order prohibiting him from copying, disclosing or disseminating the disclosure “except for purposes of exhibits for litigation in a Court”. The Minister agrees to destroy the documents provided upon conclusion of the child protection proceedings or upon both the mother and K.C. obtaining temporary or permanent status in Canada.

[135] It is clear from the Minister’s motion materials that he requests the option of using documents received from the society in another court.

[136] In submissions, counsel assured the court that the Minister seeks an order for disclosure to assist him in determining whether submissions should be made by counsel prior to adjudication of the current Status Review Application. Counsel for the Minister advised that upon review of the requested disclosure, he may decide not to make submissions. Should he make submissions, he will likely rely on the requested disclosure.

[137] Considering counsel’s oral submissions of the Minister’s stated intended purpose for requesting the disclosure, I see no reason to allow him to use the documentation in any other manner for any other purpose. As such, there will be an order limiting the use of the documents for the purpose of making submissions in this case only.

Issue #6 Should the society be required to provide the Minister with copies of future Status Review Applications and Statement of Agreed Facts?

[138] The Minister’s request for an order that he be provided with future Status Review Applications and Statement of Agreed Facts rather than being required to bring repeated motions makes sense for many reasons. I have found that the Minister must be required to make informed and meaningful submissions pursuant to subsection 50 (a) of the IRPA. Therefore, it logically follows that as long as the mother and K.C. are before the court on the protection matter, at least until they obtain status, the Minister should be provided with all Status Review Applications and Statements of Agreed Facts as these documents will inform the Minister’s decision to make submissions upon seeing the order being requested by the parties and the evidence upon which the parties rely in support of the order.

[139] Requiring the Minister to bring a motion upon issuance of each new Status Review Application is unnecessary considering my findings herein, nor would it be an appropriate use of the parties and court’s time and resources and therefore contrary to the objectives of the FLR.

[140] Should there be a material change in circumstances that would warrant a review of the documents the Minister is entitled to receive, a party or the Minister can seek leave to bring a motion to address the issue.

The appropriate procedure for moving forward

[141] I am concerned that the process in this case has been unnecessarily complicated. The parties all agree that the Minister has a genuine interest in the case, but that as a non-party, the parties argue, he is not entitled to disclosure nor is he permitted to make submissions on any issue other then the immigration matter. The parties oppose the Minister being made a party for the purpose of obtaining disclosure. The parties raise legitimate concerns about making the Minister a party for example, would that entitle him to call witnesses at a hearing? Before this case goes any further, these issues must be resolved.

[142] The parties must agree, or the court must decide on what basis the Minister is permitted to be present in the courtroom, observe the case, be privy to private information and make submissions prior to any order being made that could impact the deportation order. The Minister’s status must be clearly defined so that the parties understand prospectively not only on what authority he is permitted to participate and make submissions but on what authority, for example, the court can rely on his submissions in support of a final order.

Order to go as follows:

[143] For the purpose of making submissions to the court on this case pursuant to subsection 50 (a) of the Immigration and Refugee Protection Act, the Catholic Children’s Aid Society of Toronto shall provide the Minister of Public Safety and Emergency Preparedness with copies of all Status Review Applications in this matter issued by the court and all Statements of Agreed Facts filed with the court in support of a final order from 2015 to date, within 10 days of the date of this order.

[144] For the purpose of making submissions to the court on this case pursuant to subsection 50 (a) of the Immigration and Refugee Protection Act, the Catholic Children’s Aid Society of Toronto shall provide the Minister of Public Safety and Emergency Preparedness with copies of all future Status Review Applications issued by the court and all executed Statements of Agreed Facts upon which the parties intend to seek a final order.

[145] The Minister of Public Safety and Emergency Preparedness is permitted to have counsel attend before the court and make submissions on the supervision order being requested by the parties in so far as it impacts the Minister’s interests.

[146] The Minister shall not use the documents ordered to be provided to him by the society in paragraphs 143 and 144 above for any purpose other than to decide if he intends to make submissions to this court and to assist in preparing the submissions. The documents ordered disclosed to the Minister shall not be copied or distributed whether electronically or otherwise, and they shall not be filed in any other proceeding without further order of this court.

[147] Counsel for the MPSEP shall advise the parties as soon as possible and the court on the return of this matter if the Minister intends on making submissions on the parties’ request for an order placing the children in the mother’s care subject to the society’s supervision for a period of six months.

[148] On the return of this matter, the court expects the parties and the Minister to be prepared to address the court’s concern about the appropriate steps to take to address the procedural issues raised herein. The procedural dilemmas must be resolved prior to the parties’ request for a final order placing the children in the mother’s care subject to the society’s supervision in accordance with executed Statement of Agreed Facts.

[149] This matter is adjourned to April 22, 2021 at 3:00 p.m. as previously scheduled.

Released: April 1, 2021 Signed: Justice Melanie Sager