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.

DATE: April 11, 2023

COURT FILE NO. C57847/12

ONTARIO COURT OF JUSTICE

B E T W E E N:

CHILDREN’S AID SOCIETY OF TORONTO

DIANA CASTILLO, for the APPLICANT

APPLICANT

• and -

N.E., R.W. and G.B.

KENNETH SNIDER, for the RESPONDENT, N.E.

RESPONDENTS

THE RESPONDENTS, R.W. AND G.B., NOT ATTENDING

HEARD: APRIL 4, 2023

JUSTICE S.B. SHERR

ENDORSEMENT

Part One – Introduction

[1] The Children’s Aid Society of Toronto (the society) brought a motion seeking an order that the respondent N.E. (the mother) shall not make public anything whatsoever to do with the society’s involvement with her children before the court, the children’s fathers, the children’s caregivers and any society employees. It also sought an order that the mother immediately remove any such social media postings.

[2] The mother opposed the motion.

[3] The respondents R.W. and G.B. are fathers of three of the children before the court. They are not participating in the case.

[4] The society’s motion was argued on April 4, 2023. The court made the following orders that day:

(a) The mother is prohibited from publishing or making public information that has the effect of directly, or indirectly, identifying the children before this court, a member of the children’s families, a parent, or a foster parent in this case. She is also prohibited from publishing or making public any information regarding this case. This includes, but is not limited to, the posting of comments, videos or photographs on social media about the children before the court, a member of the children’s families, a parent, a foster parent, or about the Children’s Aid Society of Toronto or any workers employed by the Children’s Aid Society of Toronto.

(b) The mother shall immediately remove the social media postings referred to in paragraph one above. In particular, she is to immediately remove all social media postings made on March 17, 2023 referring to the Children’s Aid Society of Toronto and its workers on her Facebook page.

(c) The society is to conduct an internet search to determine if any information has been posted on social media identifying, directly or indirectly, the children before this court, a parent, a foster parent, a member of the children’s families, the Children’s Aid Society of Toronto or any of its workers. If there is any non-compliance with these terms by the mother, then the court expects the society to bring it to the attention of the court.

(d) To ensure compliance with this order, if any content remains, the Children’s Aid Society of Toronto shall put any internet service providers, websites, website hosts or social media companies on notice that the court has ordered this material to be removed and they shall ask those organizations to remove the content and close the websites or accounts. If those organizations do not respond within 30 days, then the society is to bring a motion before the court, on notice to the organization, for an order to compel the appropriate organization to remove the content and close the website or account.

[5] The court gave brief oral reasons when making these orders and indicated that further written reasons would follow. These are those reasons.

Part Two – Brief background facts

[6] The mother presently has four children before the court. There is an active Status Review Application concerning three of her children, ages 6, 2 and 18 months. All three children are placed with third parties.

[7] The mother recently had another child who was brought to a place of safety on March 24, 2023. The society issued a Protection Application and that child has been placed in the temporary care and custody of the society, with access to the mother in the society’s discretion.

[8] The mother had another child before the court, age 8, who was placed in the care and custody of a third party, pursuant to section 102 of the Child, Youth and Family Services Act, 2017 (the Act) on November 4, 2022. That child is no longer before the court.

[9] The mother’s children have been in care due to multiple protection concerns including the mother’s poor mental health, her poor parenting skills, her inability to keep the children safe, the poor condition of her home, her lack of pre-natal care, her inability to effectively use services and her lack of cooperation with the society.

Part Three – The social media postings

[10] The society brought this motion due to social media postings made by the mother on March 17, 2023 on her Facebook page.

[11] Several of the postings refer to the mother’s former family service worker (K.L.).

[12] The postings read as follows:

(a) 10:40 a.m. – If K.L. is in charge of your children be aware they will end up at their funeral no longer alive. [^1]

(b) 10:43 a.m. – Save the children the staff need their mental health checked.

This post included a photo of the society’s branch office. The mother then posted the photo of the society branch office a further 10 times.

(c) 3:14 p.m. – I paid for my children’s birth certificates and children’s aid wants to steal them.

In the same post the mother makes two comments as follows:

i. The first comment is a screenshot of an email between the mother and K.L. having a conversation about the children’s birth certificates. In the screenshot the mother asks for a copy of the children’s birth certificates to be given to her on March 17, 2023. K.L. replies by asking the mother to provide an explanation for why she needs the certificates and that she would try to get her copies. In the same screenshot, K.L.’s work information is posted by the mother, including the number where she can be reached at work.

ii. The second comment is, “I was suppose to be given back right away…which made ppl able to get passports without judge permission.

(d) 3:18 p.m. – Three comments were posted as follows that refer to K.L:

i. Her cas workers we need donation. So she changes her clothes into stripper attire and heads to the strip club.

ii. Quits working with cas so she can go back to sucking and fucking.

iii. Kids are hungry then she gets a new car because her dog has been all up in the kids care for transporting kids or workers to appts.

(e) 3:18 p.m. – Mr. Putin don’t forget the hitlist….CAS Scarborough have taken funding from children.

(f) 3:26 p.m. – Judge sher you need to check the lawyers at cas and their workers asap….a missile is waiting.

[13] The mother did not deny that these were her Facebook postings.

Part Four – Legal considerations

[14] Courts are starting to react more forcefully to inappropriate social media postings in family and child protection cases.

[15] In cases under the Children’s Law Reform Act (the CLRA), the court has the authority pursuant to clause 28 (1) (c) to prevent a party from making negative social media postings and to require them to remove the existing ones. Many courts are now making such orders in the best interests of children. See: Shotton v. Switzer, 2014 ONSC 843; Singh v. Batoolall; Chartrand v. De Laat, [2008] O.J. No. 4529 (SCJ); Daher v. Khanafer, [2016] ONSC 5969; E.H. v. O.K., [2018] ONCJ 412; Hicks v. Geist, 2022 ONSC 5677; S.B. v. J.I.U., 2021 ONCJ 614.

[16] Subsection 87 (8) of the Act provides that 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. Pursuant to subsection 142 (3) of the Act, it is an offence to contravene subsection 87 (8). The offence is punishable on conviction by way of a fine of not more than $10,000 or by imprisonment for not more than three years, or both.

[17] The court notes that this subsection does not create a prohibition about publishing or making public information about a children’s aid society or its employees unless it 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.

[18] In Catholic Children’s Aid Society of Toronto v. N.B., [2012] O.J. No. 3241 (Ontario Court of Justice), Justice Ellen Murray made an order directing the father in that case to remove social media postings that had the effect of directly or indirectly identifying the three children before the court and suspended his access until that was done. Justice Murray found that since the child protection case was the only family law case before the court, any reference to family court proceedings in his social media postings would indicate a connection to the protection case.

[19] The father appealed that decision. The decision was upheld. See: Catholic Children’s Aid Society of Toronto v. N.B.-R., 2013 ONSC 1965. The appeal court noted that although the father did not name the children’s last names in his social media postings, he included their first names and referred to the society, his caseworker, family court and court proceedings. He included photos of family court. The motions judge had ample information to enable her to conclude that there was public information that identified the three children as subjects of a child protection proceeding, as well as the father.

[20] In Catholic Children’s Aid Society of Toronto v. T.T.L., 2019 ONCJ 530, both parents were making inappropriate social media postings and videos. Justice Alex Finlayson ordered the parents to remove any text, photographs and videos posted on social media that directly or indirectly discussed or referenced the other, the child and any of the court cases in which either parent had been involved. This included not posting anything about the father’s criminal charges and family law proceedings in Quebec. He prohibited the parents from making any such postings in the future. He ordered that the child’s social media and You Tube accounts be closed.

[21] In Simcoe Muskoka Child, Youth and Family Services v. E.L., 2022 ONSC 4508, Justice Pamela Krause had ordered the mother to remove postings on her Tik Tok account about the child protection workers. The mother refused to do so and the court found her in contempt. This was the second time the mother had been found in contempt for making inappropriate social media postings. The court gave the mother the opportunity to purge her contempt. She did not do this and kept making social media postings about the child protection workers.

[22] Justice Krause wrote the following at paragraphs 38 and 39 of her decision:

38 There must be a general deterrence to making public information in child protection proceedings and breaching orders made within those proceedings relating to publication.

39 Social media has created a situation where information can be shared instantaneously around the world. The court must ensure persons know and understand there is no entitlement to post on social media any information about child protection proceedings in Ontario which will identify the child(ren), family or caregivers.

[23] Justice Krause sentenced the mother to three days in jail.

Part Five – Do the social media posts violate subsection 87 (8) of the Act?

[24] The mother’s Facebook posting at 3:14 p.m. on March 17, 2023 explicitly violates subsection 87 (8) of the Act. The mother posted her discussions with K.L (who she identified as a society worker), about her children’s birth certificates. She posted K.L.’s contact information at the society. She identified that there was a judge involved. In making this Facebook posting, she identified her children and herself as being the subject of child protection proceedings.

[25] The balance of the Facebook postings made by the mother on March 17, 2023 should not be read in isolation. Rather, they should be read together for context. Read together, the mother identifies herself directly and the children, indirectly, as participants in a child protection case. These postings refer to the mother being involved with the society and the mother asking the court to check into the lawyers and workers at the society as soon as possible. These Facebook postings violate subsection 87 (8) of the Act and must also be removed.

Part Six – The court’s ability to control its own process

6.1 Legal considerations

[26] Subsection 87 (8) of the Act prohibits publicizing information about specific persons involved in a child protection case.

[27] The Act, however, does not contain a specific provision authorizing the court to remove social media postings that violate subsection 87 (8) of the Act.

[28] The Act also does not contain provisions similar to those set out in clause 28 (1) (c) of the CLRA, which have given courts wide-ranging ability to prohibit or order the removal of inappropriate social media postings in family law cases.

[29] However, as seen in the jurisprudence reviewed in Part Three above, child protection courts have made orders to remove inappropriate social media postings about children, parents and child protection workers to protect privacy rights pursuant to subsection 87 (8) of the Act and to preserve the integrity of the child protection proceedings.

[30] Although the Ontario Court of Justice is a statutory court, it also has the right to control its court process. See: R. v. Felderhof; R. v. Cunningham, 2010 SCC 10; Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43.

[31] In R. v. Fercan Developments Inc., 2016 ONCA 269, the court wrote 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.

[32] The Fercan decision was applied in the child protection context by Justice Melanie Sager in Catholic Children’s Aid Society of Toronto v. S.S., 2021 ONCJ 199, when she relied on the power of the Ontario Court of Justice to control its own process and ordered the production of documents to an interested third party. Justice Sager found that while the Act did not contain a specific provision authorizing the production of these documents, it also did not contain a provision prohibiting such an order being made. Justice Sager wrote at paragraph 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.

[33] Justice Sager’s use of the court’s power to control its process was upheld on appeal at the Superior Court of Justice. See: Catholic Children’s Aid Society of Toronto v. S.K.S., 2021 ONSC 5813, and on a subsequent appeal to the Ontario Court of Appeal. See: Catholic Children’s Aid Society of Toronto v. S.K.S., 2022 ONCA 228.

[34] This court relied on the court’s right to control its own process in Children’s Aid Society of Toronto v. S.C., 2017 ONCJ 717. The children had been made crown wards without access. [^2] The father of the children subsequently flooded the court office with Form 14B motion forms without any merit, unwilling or unable to accept that the issues had been determined on a final basis by this court and that his recourse was to appeal the decisions to the Superior Court of Justice. The father’s last Form 14B sought an order that the court notify the public that he had finally won his case unopposed. The court wrote at paragraph 38:

The father’s actions now amount to an abuse of the court process as he is misusing valuable court resources. He refuses to accept the court’s orders. The court has an obligation to all its users to control its process to prevent such abuse. See: R. v. Felderhof.

[35] The court ordered that the father could not file or send any documents to the court seeking permission to bring another motion for leave to bring a Status Review Application regarding his children until the expiration of the 6-month statutory time period set out in subsection 65.1 (7) of the Act. It further ordered that court staff should not accept any Status Review Application, motion forms (Form 14B), or notices of motion (Form 14) from the father or schedule any court appearances prior to the expiry of the statutory 6-month period. And, if the father served the society with any motion or Status Review Application in contravention of the order, the society did not have to respond, unless otherwise directed by the court.

[36] Lastly, as part of the court’s authority to control its own process, rule 2 of the Family Law Rules sets out that the primary purpose of the rules is to deal with cases justly.

6.2 Discussion

[37] In family law cases courts have relied on clause 28 (1) (c) of the CLRA to protect children, parties, witnesses and other participants in family law cases from cyberbullying, abuse and intimidation by parties to the case.

[38] There is no reason that children, parties, witnesses and other participants in child protection cases, including children’s aid society employees, should receive any less protection from the court. The ability of child protection courts to control inappropriate social media posting is essential to its ability to maintain the integrity of the child protection proceedings. Anything less could result in an unjust process.

[39] The court finds that the mother’s Facebook postings were made to denigrate, intimidate and cyberbully K.L. The society has removed K.L. as the mother’s family service worker for K.L.’s protection. The court would have ordered the removal of the mother’s Facebook postings about K.L. (and prohibited the mother making similar postings about society workers in the future) even if they did not technically fall within the prohibition ban set out in subsection 87 (8) of the Act.

Part Seven – Consequences of breaching this order

[40] The court understands that the mother is angry at the society. However, she cannot make social media postings about the child protection case or the participants in it.

[41] It is important that the mother understand the consequences if she does not comply with the court order to remove the March 17, 2023 postings or if she makes similar postings in the future.

[42] These possible consequences are as follows:

(a) A fine of up to $10,000 and imprisonment for up to three years for identifying a child or party to a child protection case pursuant to subsection 142 (3) of the Act.

(b) Contempt remedies set out in rule 31 of the Family Law Rules. The mother is reminded that in Simcoe Muskoka Child, Youth and Family Services v. E.L., supra, the court jailed the mother for 3 days for her refusal to remove offensive social media postings.

(c) The court may make an adverse finding against the mother in the child protection case on the basis that making these social media postings shows poor judgment and an inability to put the needs of the children over her own anger. It will also likely inform the court, if she does not comply with its orders, that she is not capable of following court orders – an important consideration if the court is to consider returning any of her children to her under a supervision order.

(d) In addition, subrule 1 (8) of the Family Law Rules provides the court with the following enforcement options if an order is breached:

(i) an order for costs;

(ii) an order dismissing a claim;

(iii) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(iv) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(v) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(vi) an order postponing the trial or any other step in the case; and

(vii) on motion, a contempt order.

[43] The cyberbullying and the intimidation of children, parties, witnesses and other participants involved in child protection proceedings should not and will not be tolerated.

[44] The court thanks society counsel for her excellent legal research.

Released: April 11, 2023

Justice Stanley B. Sherr

Footnotes

[^1]: The mother used K.L.’s full name in her Facebook postings. [^2]: Crown wards are now identified as children in extended society care.