WARNING

The court hearing this matter directs that the following notice should 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.

(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.

(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.

ONTARIO COURT OF JUSTICE

DATE: 2021·12·09 COURT FILE No.: Elliot Lake 54/19

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA, Applicant,

— AND —

L.M. D.M. Respondents.

Before: Justice John Kukurin

Heard on: November 23, 2021 Reasons for Judgment released on: Dec 9, 2021

Counsel: Ms. Sarah Bujold ................................................................ counsel for the applicant society Ms. Stacy Haner………………………………………. counsel for the respondent mother, L.M. Mr. D.M. …………………………….…………..………………………..…………..Self Represented Ms. Jasmine Gassi Harnden...................... counsel for the Office of the Children’s Lawyer, legal representative for the child

KUKURIN J.

[1] These are my Reasons for my decision on a portion of this child protection proceeding in which the subject children are two sisters, now ages 13 and 9. The proceeding started with their apprehension on Nov 21, 2019, without a warrant, and is now over two years old. There has been no finding that the children are in need of protection, and if there is any cause for celebration in this proceeding, it is that the hearing before me is precisely for a determination of that issue.

Focused Hearing

[2] The hearing before this court is for a finding as to whether the children are children in need of protection as defined in the Child, Youth and Family Services Act (CYFSA). The hearing is by way of a ‘focused’ hearing. This is the only issue before this court. This makes the child protection application a ‘bifurcated’ proceeding.

[3] The focused hearing bears some examination since this is what this court is utilizing. Firstly, the words “focused hearing” do not appear in the CYFSA. As they imply a procedure, the expectation is that they would appear in the Family Law Rules. But if they do, they must be well hidden, probably in plain sight, as this court could not find them. More likely is that the focused hearing is an invention of the judiciary as an attempt to streamline the litigation process and to circumvent voluminous volumes of evidentiary filings and the necessity of dealing with multiple issues at a lengthy trial. The child protection proceeding, by necessity, includes multiple issues (eg identification findings/findings in need of protection/dispositions/access and temporary orders superimposed over all of the foregoing).

[4] The focused hearing is particularly appropriate as a vehicle for making the finding that a child is in need of protection. This is a pivotal finding. If it is not made, then the need to move to disposition or access not only fades, but disappears entirely. The finding in need of protection is as essential in a child protection case as is a finding of guilt in a criminal case. The sooner each is dealt with, the better from any conceivable point of view, particularly that of child who may spend many months, often years separated from family while a case drones on.

[5] However, as the focused hearing is not provided for in the Family Law Rules, it is not surprising that how a focused hearing is to be held is not specified. The procedure on a focused hearing is judge driven, admittedly with the helpful suggestions of counsel (or parties). A focused hearing for one case may look totally unlike one for another case. In short, the focused hearing is a procedural tool that has to be customized for the particular issue or issues it is meant to determine, and for the particular statute that applies to the proceeding in which the focused hearing is to be used. As for authorization setting the parameters of the focused hearing, these are, I suggest amply provided in Rule 1(7.2) (Procedural Orders) of the Family Law Rules tempered by Rule 1(2), (3), (4) and in particular (5) which I set out below:

PRIMARY OBJECTIVE

Rule 2 (2 ) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99 ,2 (2).

DEALING WITH CASES JUSTLY

Rule 2 (3) Dealing with a case 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) .

DUTY TO PROMOTE PRIMARY OBJECTIVE

Rule 2 (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) .

DUTY TO MANAGE CASES

Rule 2 (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 the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2 (5) .

[6] In the context of the CYFSA, the focused hearing is an even more appropriate procedural tool as it allows the determination of whether a child is in need of protection closer along the litigation timelines set out in both the CYFSA statute as well as in the Rules. Specifically, s. 96 CYFSA contemplates that a date for a hearing to determine whether a child is in need of protection will be set shortly after 3 months from the start of a case. It places this duty on the court, a duty, I am dismayed to admit, on compliance of which, the court record is abysmal:

S. 96 Where an application is made under subsection 81 (1) or a matter is brought before the court to determine whether a child is in need of protection and the determination has not been made within three months after the commencement of the proceeding, the court,

(a) shall by order fix a date for the hearing of the application, and the date may be the earliest date that is compatible with the just disposition of the application; and (b) may give such directions and make such orders with respect to the proceeding as are just.

[7] Rule 33 of the Family Law Rules provides a timeline that governs the child protection case. The hearing is to be completed within 120 days of the start. I needn’t mention how both the bench and the bar treat Rule 33 as it is so notoriously known as to almost warrant judicial notice.

[8] However, the focused hearing is an ideal tool, particularly with properly tailored judicial directions, to achieve many of the objectives of a just hearing, of reducing the delay that plagues child protection cases, and to achieve the spirit of the CYFSA statute. [1]

[9] To say that this court welcomes the ‘focused’ hearing’ is an understatement. However, as with any relatively new procedures, it has its growing pains. While it may be more utilized in some court locations, it is not in this one. It is akin to the motion for summary judgment that didn’t exist in child protection matters before 1996, exploded into commonplace use in the next 2 ½ decades, has been enshrined in a formal Rule of the court, and even now enjoys continued acceptance, albeit refined by appellate decisions.

[10] One aspect of this focused hearing that seems to have missed the mark is that the focused hearing is a trial. Included in the focused hearing directions in this case was the following:

9. The parties are cautioned that the focused hearing is not a Motion but is a Trial and that trial worthy evidence is expected in their Focused Hearing affidavits.

Notwithstanding that caveat, the evidence was rife with what can only be called hearsay evidence mostly in the form of voluminous police occurrence reports, medical reports, hospital records, and society worker’s case notes that were stapled to and marked as exhibits to affidavits. There were no Notices under the Evidence Act served of intention to introduce any of these records. Nor was there any evidence that these were made in the ordinary course of business.

[11] Nevertheless, there is appellate authority that service of notice is not required if the other parties had actual notice of such records [2] . Here, the mother did have actual notice as she also had voluminous records attached to her focussed hearing affidavit, most of which were duplicates of those of the society. Of note, neither side objected, and no party served the formal Notices.

[12] In any event, these were all admitted as evidence as I found that their relevancy to the issue of a finding was high enough that in the circumstances, their admission far outweighed any prejudicial effect that they might cause.

The Arguments

[13] The society in its initial application and in its amended application relied on grounds in s.74(2)(b)(i) and (ii) as well as s.74(2)(h). At the focused hearing it abandoned (h) grounds. I set out the (b) grounds;

s.74 (2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[14] The society ‘s evidentiary broadside was aimed at the mother with respect to these grounds. It had minimal evidence with respect to the father, and at best, it argued that the father had no insight into the impact that the behaviour of the parents, but mostly that of the mother, was having on the children.

[15] That is not to say that some of the factual happenings over the past decade were all conduct of the mother. The father was involved in the arguments and yelling and screaming contests of the parents and he was, in fact, convicted of assaulting the mother, although this was over ten years ago. The family life was not pleasant for much of the time and it finally came to an end shortly after Dec 2019 when the mother moved to Barrie and advised the father that their relationship was at an end and that she was not planning to come back.

[16] The father is a party in this proceeding. He has filed an Answer. He had counsel who was removed. He has not retained new counsel. He has filed no evidence in this focused hearing so I do not refer to any. The children have counsel appointed by the court through the Office of the Children’s Lawyer. There was no evidence from that quarter, and perhaps rightly so as this hearing is concerned with a finding in need of protection.

[17] The society has the onus to prove that at least one ground under s.74(2) CYFSA exists and to do so on the balance of probabilities. The factual grounds can be summarized thus:

(a) the mother’s mental health issues make her undependable as a caregiver (b) the mother’s mental health issue are such that they cannot be eradicated (c) the mother’s mental health issue cause her to engage in domestic behaviour characterized by yelling, screaming, crying, histrionics and shouting, often peppered with curses and obscenities, as well as violence to the father (d) the mother’s behaviours are unpredictable as to when they will occur and she has no self control when they do occur (e) the mother and father have engaged in domestic altercations that have involved police attending their home many times over the last ten years, leading on some occasions to criminal charges, and on others to her being taken involuntarily to the psychiatric ward at the hospital on a Form 1 (f) the mother has had mental health care since she was a youth, has been diagnosed with several DSM-V mental health disorders, has been prescribed medication which she has not always been faithful to take and shows no sign of getting better (i.e. cured) (g) The mother’s conduct has oftentimes taken place when the children have been in the home or have been within earshot and/or seeing distance, and they have had effects on the children that can only be described as adverse. (h) the mother’s actual ‘hands on’ care of the children has been inadequate particularly with respect to cleanliness and hygiene, and dental care in the case of the older child.

[18] The onus on the society to prove the aforementioned is not that steep a climb since the mother seems to admit that many of the incidents and events that underly these occurrences did take place. However, what the mother concentrates on in her response to the society’s evidence at this focused hearing is that this is all, or mostly all, the fault of the father. It is the father who has chronically demeaned her, who has eroded her self esteem to the point that she believed that she was the cause of all this strife, who has coerced her and controlled her, who has engaged with her in shouting matches, who has been violent with her and with the children, who has locked her out of the home, and who has alienated the children against her.

[19] There is more than a modicum of truth to what she says about the father. It takes two to tango, as they say, and he also has contributed to the discord within the family home. Unfortunately, this does not help either the mother or the father in this focused hearing where the focus is not on who is at fault, but on whether the children are in need of protection. Even if all that the mother says about the father is true, the end result is that there is even more reason for finding the children in need of protection. The reason why a child is in need of protection can be because of the conduct of either parent, or both parents. In the end, the child is still in need of protection.

[20] There is ample jurisprudence that confirms that the factual allegations that support a finding under s.74(2) do not need to have occurred at the time that the application was first started. They may precede that time, be contemporaneous with that time, or have happened since that time, up to the time of the hearing. [3]

[21] Section 74(2) is a section based on risk of physical harm. With respect to the mother, she represents such a risk to her children now and has for a number of years primarily due to her behaviours when the children have been present. One such example was at an access visit when, in a rage, she threw some keys which struck a society access supervisor in the face, while her youngest daughter was present, and apparently shaken to witness such behaviour by her mother. The mother was admittedly remorseful for this conduct but the remorse does not erase the impact of the conduct. While this is only one example, it is typical in that the mother was out of control, and that she did not seem to care, or even realize that her daughter was present. There are many incidents where the children were present to witness parental interactions that they should never had seen, so many, in fact, that the older child seems to have developed an emotional shell to cope with such things.

[22] The past is often a good predictor of the present and from the point of view of risk, also of the future. I am satisfied that the society has met its onus and that grounds exist under both (b)(i) and (b)(ii) grounds of s.74(2) CYFSA. These are mainly resulting from the mother’s mental health issues which include diagnoses of PTSD, borderline personality disorder, perhaps conduct disorder, with symptoms of depression, anxiety, mood instability and impulsivity. These are long term disorders and there is no evidence that they will go away. There is plenty of evidence that her relationship with the father was a dysfunctional one, and their children got caught in the middle of it. Perhaps it was for the best that they have finally separated and gone their own ways.

[23] In the bifurcated process brought about by this ‘focused hearing’, I find that the children are children in need of protection under section 74(2)(b)(i) and (ii) of the CYFSA. The cohabitation of the parents did not produce an environment of a happy family life and when it went off the rails, it did so most times because of the mother’s behaviours. At many of those times, the children were placed at risk of physical harm and to some extent, of emotional harm.

[24] The application is not finished as the court must still deal with disposition and almost certainly with access. These may be hampered by the existence of a SCJ order that dates back to 2016, has never been varied, has been succeeded by a reconciliation and resumption of cohabitation of the parties, and in fact their marriage. This is one of several issues that may best be discussed at a case conference before any decision is made for the balance of the litigation of this proceeding.

Released: December 9, 2021 Signed: “Justice John Kukurin”

Footnotes

[1] This court at Sheppard St. in Toronto, a family court location only, has enthusiastically adopted the focused hearing where it is called a “Rule 2” hearing. It may have become popular in other locations as well. There is a history of use of this procedure in family law cases. for example: Figurado v. Figurado, 2009 ONCJ 134; Bandas v. Demidarche, 2013 ONCJ 679; Dawson-Fisher v. Fisher, 2011 ONCJ 489; Herrera v. Raji, 2011 ONCJ 398, Askalan v. Taleb, 2012 ONSC 4746

[2] Exhibitors Inc. v. Allen, [1989] O.J. No. 1221 (H.C.J.)

[3] See Children's Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754, 114 A.C.W.S. (3d) 71 per Czutrin J. Paragraph [50]: “ I have come to the conclusion that the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date.” See also Children's Aid Society of Toronto v. S.A., 2017 ONCJ 366 (Pawagi Ont CJ) at Paragraph 24.