Court File and Parties

COURT FILE NO.: C1239/16-2 DATE: July 26, 2018 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT

RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant AND: A.L., J.G. and F.L., respondents

BEFORE: VOGELSANG J.

COUNSEL: Joseph F. Belecky for the Society Marnelle Dragila for A.L. Holly Watson for F.L. Julie Lee for D.T. and S.C. (foster parents) Sharon E. Hassan for D.M. and R.A. (prospective kin placement) Maureen Bulbrook for the child, L.T.R.G.

HEARD: July 13, 2018

Endorsement

[1] Ms. Hassan advances a motion for an order adding D.M. and R.A. as party respondents in this protection application pursuant to rule 7(5) of the Family Law Rules, O. Reg. 114/99. These brief reasons resolve a preliminary objection to Ms. Lee’s participation in argument on the motion.

[2] Ms. Lee was previously unsuccessful in her attempt to have her clients added as parties or to enjoy expanded participatory rights at the trial under s. 79(3) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 but Korpan J. left the question of leave for their further participation to the trial judge: Children's Aid Society of London and Middlesex v. A.L., J.G. and F.L., 2018 ONSC 1682 (Sup. Ct.). Ms. Lee now seeks to advance arguments presumably against Ms. Hassan’s motion, relying on s. 79(3).

[3] The question becomes whether or not this motion is a “hearing.” If it is, the foster parents are entitled to attend and take part. I think the statutory prescriptions support the broad definition approved in the decision of Fedak J. in Children’s Aid Society of Hamilton v. W.(M.) (2003), 63 O.R. (3d) 512 (Sup. Ct.), at para. 52:

[52] In para. 30 [of Catholic Children’s Aid Society of Metropolitan Toronto v. O.(L.M.), [1995] O.J. No. 3971 (Prov. Div.)], Justice James addressed the meaning of a “hearing”, which I readily adopt. He stated that:

30 Traditionally, a "hearing" was to a court of equity what a "trial" was to a court of common law - a distinction that has become meaningless since the passage of the judicature statutes late in the nineteenth century when equity and common law began to merge. In many contexts, "hearing" has become a generic label to describe trials, appeals and the host of interlocutory proceedings surrounding them. See The King v. MacKenzie, [1929] 1 W.W.R. 249 (Man. K.B.), affirmed at (1929), , 38 Man. R. 241, [1929] 2 W.W.R. 421, [1929] 3 D.L.R. 799, 51 C.C.C. 423 (Man. C.A.). Contrary to the intuitive sense of the word, a "hearing" need not be an auditory experience; the evidence can assume the form of affidavits, transcripts or other documentary material. See Ashworth v. Conarroe (1993), 117 Sask. R. 148, 110 D.L.R. (4th) 117, 1 R.F.L. (4th) 124 (Sask. Q.B.). And in this century, "hearing" has regularly been applied to proceedings before administrative tribunals where it has come to mean, not a trial in the formal sense, but the right to present one's side of the case. See, for example, Burnley v. University of New Brunswick (1992), 130 N.B.R. 224, 238 A.P.R. 224, 98 D.L.R. (4th) 472 (N.B. App. Div.). [my italics and citation added]

[4] In addition, the Courts of Justice Act, R.S.O. 1990, c. C.43, with general application to all civil proceedings in the Province, does not exclude an interlocutory motion from the definition of “hearing”:

Definitions

1 (1) In this Act,

“action” means a civil proceeding that is not an application and includes a proceeding commenced by,

(a) claim,

(b) statement of claim,

(c) notice of action,

(d) counterclaim,

(e) crossclaim,

(f) third or subsequent party claim, or

(g) divorce petition or counterpetition; (“action”)

“application” means a civil proceeding that is commenced by notice of application or by application; (“requête”)

“defendant” means a person against whom an action is commenced; (“défendeur”)

“hearing” includes a trial; (“audience”)

“motion” means a motion in a proceeding or an intended proceeding; (“motion”)

“order” includes a judgment or decree; (“ordonnance”)

“plaintiff” means a person who commences an action; (“demandeur”)

“region” means a region prescribed under section 79.1.

[my emphasis]

[5] The foster parents, in my view, are entitled to participate at the hearing of the motion.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: July 26, 2018