Court File and Parties

COURT FILE NO.: C1230/13-03/04 DATE: May 17, 2016 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

RE: Children’s Aid Society of London and Middlesex, applicant AND: A.C.M., A.J.E.B. and S.C., respondents

BEFORE: KORPAN J.

COUNSEL: Ben Leschied for the Society A.C.M. not appearing A.J.E.B. not appearing S.C. not appearing

HEARD: March 17, 2016, written submissions March 25, 2016

Endorsement

[1] Should the mother’s answer be struck pursuant to r. 1(8.2) of the Family Law Rules, O. Reg. 114/99 as requested by the Society on the grounds that it may delay a fair trial and is a waste of time so as to allow the status review application to proceed to an uncontested hearing?

Facts

[2] The mother has two children, L.M.M., born in 2009 (6), and T.B., born in 2013 (2). S.C. is L.’s father. The mother’s current partner, A.B., is T.’s father.

[3] The Society has not had any contact from S.C. since January 2014.

[4] L. was ordered into the temporary care and custody of the Society on October 17, 2013 where she remained until April 11, 2014 when she was found to be in need of protection and placed into the care of the maternal great-grandfather, J.M., pursuant to a final six month supervision order. She has remained in his care.

[5] T. was apprehended at birth. On June 26, 2014 she was found to be a child in need of protection and a final four month Society wardship order was granted. She has remained in Society care.

[6] The Society brought a status review application with respect to L. on October 9, 2014 seeking placement with the maternal great-grandfather subject to an additional period of six months supervision. The maternal great-grandfather filed an answer in November 2014 seeking a deemed custody order with respect to L. pursuant to s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c C.11 with access to be in his discretion. The mother filed an answer in December 2014 seeking placement of L. with her subject to supervision or, in the alternative, with the maternal great-grandfather pursuant to s. 57.1 of the Child and Family Services Act with access to her. The Society supports the maternal great-grandfather’s claim.

[7] The Society brought a status review application with respect to T. on October 23, 2014 seeking Crown wardship. The mother filed an answer in December 2014 seeking placement of T. with her subject to supervision or, in the alternative, with the paternal grandfather.

[8] Neither S.C. nor A.B. filed an answer.

[9] Both status review applications remain on adjournment.

[10] A.B. last attended an access visit in July 2014. The mother last attended an access visit in December 2014.

[11] By September 10, 2015, the Society had exhausted all kinship options for T. The Society worker contacted the mother by email on September 10, 2015 to inform her of the Society’s intent to place T. in a view to adopt home. The mother responded by email on September 13, 2015 that she and A.B. had come to the realization that adoption is best for T. She set out the type of adoptive family she and the father would like and that she and T.’s two sisters would like access to T., acknowledging that she knows that most of their request would probably not be possible. She said “we’re not going to go against you with the adoption process, we want to work with you to find the best family for our T.”

[12] On September 24, 2015, in response to an email from the Society worker, the mother advised by email that she had moved to Alberta with A.B. on September 13, 2015 and provided a post office box address in Alliance, Alberta. She said that she had told her grandfather to give her enough notice so that she could save for a ticket, book time off and return to Ontario for important court dates. She confirmed that she would consent to her grandfather having custody of L. on the stipulation that she and L. could skype frequently and that L. would be returned to her care in the event of his death. She said that if those conditions could not be met, she would go to the child protection services there and start court to move L. to her in Alberta as soon as possible. This is the last contact that the Society worker received from any of the parents.

[13] The Society worker sent an email to the mother on December 2, 2015 asking her to contact her lawyer as soon as possible to provide her instructions regarding the consents so the applications could be resolved. The worker did not receive a response to the email.

[14] Nor did the worker receive a response to the email she sent to the mother on January 18, 2016 making the same request and confirming that court is scheduled for January 21, 2016 at 2:15 p.m.

[15] The Society worker did not receive a response to the email she sent to the mother on January 28, 2016 requesting her telephone number and address for service of a motion for summary judgment on February 19, 2016.

[16] Rather than bringing a motion for summary judgment, the Society brought these motions returnable on March 17, 2016 to strike the mother’s answers pursuant to r. 1(8.2) of the Family Law Rules which, if granted, would allow the applications to proceed to an uncontested hearing. The motions to strike were served on the mother’s lawyer of record on March 1, 2016.

[17] In response to the motions to strike, the mother’s lawyer served the mother by email, on March 17, 2016, with motions to be removed as her lawyer of record, also returnable on March 17, 2016. On the evidence of the mother’s lawyer, I ordered that she be removed as the mother’s lawyer of record.

[18] I then heard the Society’s motions to strike.

The Law

[19] Rule 1(8.2) of the Family Law Rules provides that the court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process. Rule 1(8.4) provides that if an order is made striking out a party’s answer in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
2. The party is not entitled to participate in the case in any way.
3. The court may deal with the case in the party’s absence.
4. A date may be set for an uncontested trial of the case.

[20] The primary objective of r. 2(2) of the Family Law Rules is to enable the court to deal with cases justly. Rule 2(3) provides that 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.

[21] Rule 2(4) of the Family Law Rules provides that the court is required to apply the rules to promote the primary objective and that parties and their lawyers are required to help the court to promote the primary objective. Rule 2(5) requires the court to 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.

[22] The paramount purpose of s. 1(1) of the Child and Family Services Act is to promote the best interests, protection and wellbeing of children.

[23] Subject to certain exceptions, the court shall not make an order for society wardship under s. 70(1)(a) of the Child and Family Services Act that results in a child being a society ward for a period exceeding 12 months if the child is less than 6 years of age on the day the court makes the order.

[24] Rule 33(1) of the Family Law Rules sets out the timetable for child protection cases. The maximum time from the start of a case until the hearing is 120 days. Subrule 33(3) provides that the court may lengthen a time in the timetable in r. 33(1) only if the best interests of the child require it.

[25] Generally, in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties. Courts should use utmost caution in striking pleadings where children's interests are involved: see King v. Mongrain (2009), 2009 ONCA 486, 66 R.F.L. (6th) 267 ONCA at para. 31; and D. (D.) v. D. (H.) (2015), 62 R.F.L. (7th) 261 ONCA.

[26] In Frontenac Children’s Aid Society v. C.N., [2007] O.J. No. 1186, on a disposition hearing only, Robertson J. heard a motion to strike the mother’s answer almost two years after the initial application was commenced. Reasons for the delay included the mother’s actions, including her self-representation. At para. 30, Robertson J. noted the reluctance of the courts to extend the power to strike pleadings in child protection matters because it would foreclose a parent's ability to assist the court in determining the best interests of children. In striking the mother’s answer, she found that there was no purpose in granting a further adjournment as the mother had stopped participating. The order sought and made was a final order that the younger child, once located, be made a society ward for three months and that the elder child be placed with the mother subject to three months supervision.

Decision

[27] Although the Society’s notice of motion specifically refers only to r. 1(8.2) of the Family Law Rules, its factum also refers to R. 2.

[28] Just over 18 months have passed since the commencement of the status review applications.

[29] L. has not been in the mother’s care since she was ordered into Society care on October 17, 2013. She has lived with her maternal great-grandfather for the past two years.

[30] T. was apprehended at birth and has never been in the mother’s care. She has been in Society care for almost 30 months, long past the 12 months set out in s. 70(1)(a) of the Child and Family Services Act and the possible 6 month extension under s. 70(4).

[31] Both children are in need of permanency and have a right to have a decision made about their future in a timely manner. Any prejudice to the mother in striking her answers must be balanced by the prejudice to the children of further delay and an inability to have their permanency determined. With respect to prejudice to the mother, I consider also that if the final orders sought were to be granted, she has expressed, to a large extent, that she is now in agreement with the Society’s plans.

[32] The mother has stopped participating in her children’s lives. She last attended for access in December 2014. She moved to Alberta in September 2015 and responded to the Society worker in September 2015 that she would consent to the maternal great-grandfather having custody of L. subject to conditions and that she (and the child’s father) had decided not to oppose the “adoption process” for T.

[33] The mother also has stopped participating in the court process. The Society has no knowledge of the mother’s current whereabouts and has no current address for service in Alberta. With the involvement that the mother has had with the Society and the court proceedings, she must understand the importance of court appearances involving her children.

[34] The mother has not acknowledged receipt of any of the Society worker’s emails since September 2015 and there is no indication that her email address is being monitored. She has not contacted the Society since September 2015 and she stopped responding to her former lawyer. The mother has not followed through on settlement and is not present to try the issues. She has abandoned the position set forth in her answers of seeking a return of the children to her care.

[35] In considering the appropriate way to resolve these proceedings, there is no benefit to the children of a delayed and more time consuming process. This case should not use more court resources, or resources of the parties, than is necessary provided that the case is dealt with justly and the procedure is fair to all parties.

[36] The mother’s answers will further delay the proceedings and delay the children from achieving permanency. Given her actions, the mother’s answers represent a waste of the court’s time. Striking her answers to permit the status review applications to proceed by way of an uncontested hearing is a proportionate, more timely and affordable, yet fair, way to bring the litigation to an end.

[37] In all of the circumstances, I order that the mother’s answers be struck without prejudice to her to move to set this order aside in the event she returns to London, Ontario and contacts the Society before the uncontested trials are heard.

[38] The Society shall forthwith serve the mother by ordinary mail to her last known address and by email to her last known email address with a copy of these reasons and the issued order resulting from these reasons.

[39] The applications are adjourned to May 19, 2016 at 10 a.m. to be spoken to.

“Justice Denise M. Korpan” Justice Denise M. Korpan Date: May 17, 2016