The Children’s Aid Society v. S.B. and C.G., 2018 ONSC 5301

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(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.

Court File and Parties

COURT FILE NO.: FC-18-16 DATE: 20180911 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”)

AND IN THE MATTER OF A.B. dob: October 20, 2011), C.B., dob: August 10, 2014 and L.B., dob: August 10, 2014

BETWEEN:

The Children’s Aid Society Applicant – and – S.B. Respondent – and – C.G. Respondent

Counsel: Mark E. Hecht, for the Applicant Miriam Martin, for the Respondent, S.B.

HEARD: September 4, 2018

BEFORE: Audet J.

Reasons for Decision

1The respondent mother brings a motion to dispense with the need to serve her motion materials on the father, and for an order removing the respondent father as a party to these child protection proceedings. In the alternative, she seeks an order dispensing with the need to serve any documents in these proceedings on the father. The mother’s request is based on her assertion that the father has historically been abusive to her (including in the presence of the children), and that there is a potential for serious harm to her and the children if the father becomes aware of these proceedings or of the evidence and allegations they contain.

2At the outset of the motion hearing, the mother’s counsel conceded that the Family Law Rules, O. Reg. 114/99, and more specifically rule 6(16), did not give the court jurisdiction to waive service on a party on that basis, and abandoned that claim. The only remaining issue, therefore, is whether the father should be removed as a party.

3The Society is not taking a position on the motion and leaves it to the court to decide.

Applicable Legal Principles

4The legal principles applicable to requests to dispense with service or to remove a party to a child protection proceeding on the basis of the potential risks posed by a parent gaining knowledge of the proceeding have been fully reviewed and discussed by Justice Shelston in The Children’s Aid Society of Ottawa v. K.G. and J.R., 2016 ONSC 5034. Rule 6(16) of the FLR makes it clear that the court can only dispense with service on a party if reasonable efforts have been made to locate the person to be served or if there is no method of service that could be reasonably expected to bring the document to that person’s attention. The court has no jurisdiction to dispense with service on a party based on the moving party’s fear that service may result in harm, even when the evidence with regards to the potential for harm is compelling.

5In The Children’s Aid Society of Ottawa v. K.G. and J.R., above, the father was on the run after having been charged with first degree murder of the mother’s partner and with assault and attempted murder on the mother. Despite this, the motion judge was not prepared to waive service on the father or to remove him as a party in the case on the ground that the father was a danger to the child and the mother, although service was dispensed with based on the two-prong test set out in rule 16(6) (reasonable efforts). Since the father remained a party to the case, although not served, significant protective measures were imposed by the motion judge to insure the mother’s safety in the event that the father attempted to gain access to the court’s file and the material contained therein.

6The mother’s evidence filed for the purpose of the within motion relates the events which led to the parties’ separation. If those events occurred as the mother says they did, they show that the father was significantly violent and abusive towards the mother, including in front of her older children. These events allegedly occurred over a period of a few months (the length of the parties’ relationship) and before the parties’ two children were born. The mother’s evidence is that the father has never had any contact with his children, nor has he ever sought to establish contact with them. She has no knowledge of his whereabouts, and only recently became aware of his having an active Facebook account.

7I find, based on the evidence before me, that the mother is extremely fearful of the father, and that her concerns about her safety and that of her children are genuine. If her evidence is to be believed, she has every reason to be. But is this a sufficient reason to remove the father as a party to this proceeding, to strip him from his right to respond to those allegations and to participate in these proceedings, if he so wishes? I find that it is not.

8In The Children’s Aid Society of Ottawa v. K.G. and J.R., Shelston J. mentioned that there were conflicting decisions on the issue of removing a parent as a party in a child protection proceeding in Ontario. In Children’s Aid Society of Toronto v. L.O. and M.O., Spence J. found that he had jurisdiction to remove the father as a party due to his conduct and lack of participation in the children’s lives. In various other cases, including Children’s Aid Society of Toronto v. L.G., 2012 ONCJ 800 and Halton Children’s Aid Society v. D. R., 2015 ONCJ 314, 61 R.F.L. (7th) 478, the court found that it did not.

9As Shelston J. did before me, I concur with the line of cases that concluded that courts do not have jurisdiction pursuant to the CYFSA or to the Family Law Rules to remove a parent as a party to a child protection proceeding (to be distinguished from the request to disqualify a parent under the relevant legislation).

10In Jewish Family and Child Service of Greater Toronto v. B. (K.), 2016 ONCJ 259, Justice Sherr stated:

15 Courts should not lightly grant orders dispensing with service on a parent, particularly in child protection cases. This is the case, even if the parent has had little involvement with the child or might be a risk if served. It is a fundamental principle of natural justice that a parent be provided with both procedural and substantive protection. See: Windsor-Essex Children’s Aid Society v. L. (R.), 2012 ONCJ 325 (Ont. C.J.); Children & Family Services for York Region v. T. (E.), [2009 CarswellOnt 8161 (Ont. S.C.J.)]; Children’s Aid Society, Region of Halton v. R. (D.), 2015 ONCJ 314 (Ont. C.J.), per Justice V.A. Starr. If service is dispensed with, it robs a child of a potential family relationship, even if that potential is small.

11While dealing with a motion to dispense with service, as opposed to a motion to remove a parent as a party, I find that the same concerns and principles apply to both claims for relief since both lead to the same outcome; namely, the removal of a party’s right to be informed of, and to be involved in, a matter in which he or she has the statutory right to participate, without notice.

12Domestic violence is very serious and its impact on women and children is devastating. I agree that courts must take all necessary measures to insure that domestic violence victims, including children, are shielded from harm when the evidence demonstrates that abuse, regardless of its form, has occurred or is likely to occur in the future based on past events and behaviors. However, to remove the father as a party to this protection application based solely on the mother’s untested affidavit evidence would be, in my view, to pre-judge the father on these alleged events without giving him an opportunity to respond to these allegations and to provide his own version of events. This would be a serious denial of natural justice, and one that can be avoided through other protective measures available to the mother and this Court.

13In this proceeding, these two young children (3 years old) have been in the Society’s temporary care since February 13, 2018. While it is this Court’s hope that they can be safely returned to their mother’s care as soon as possible, whether or not this will be possible in the near future has yet to be decided. Given their very young age, a permanent plan must be achieved for these children within the next five months. Removing the father as a party to this proceeding at this early stage may very well rob the children of a potential placement with their father, although the chances of this happening appear very small based on the evidence available to me now. Equally important is the fact that removing the father as a party may very well rob the children of a potential kin placement on their paternal side.

14This said, and as stated earlier, the evidence presented by the mother in the context of her motion certainly establishes, prima facie, the existence of physical and emotional abuse on the part of the father towards her, which abuse may have included death threats. Her concerns about retaliation should the father be made aware of these proceedings and of the evidence contained in this file are valid. There is also a real possibility, based on the evidence before me, that the father will not participate in this proceeding even if he is notified of its existence.

15The paramount purpose of the CYFSA is to promote the best interests, protection and well-being of children. I find that, in the circumstances of this case, measures must be put into place to protect the mother and the children on a temporary basis until such time as the father’s voice can be heard by the court.

Order

16The following temporary without prejudice order shall issue:

1. The father, C.G., is hereby restrained from communicating with the mother, S.B., directly or indirectly through any means, or to come within 250 meters of her residence, the children’s daycare or any other places where he knows the mother or the children to be.
2. The Children’s Aid Society shall forthwith serve the father with the documents listed below by way of substituted service by sending him a copy through his Facebook account: a. a copy of the Protection Application dated February 13, 2018, pages 1 and 2 only; b. a copy of the restraining order to be issued in accordance with this decision, but not the decision itself or the order containing the balance of the provisions made herein; c. a letter asking that the father communicate with an identified Society worker as soon as possible, and no later than within 30 days from receipt of the Application.
3. If and when the father communicates with the Society as requested in the above letter, the Society shall schedule a court appearance before me and notify the father of the date, time and location of that court attendance promptly. The mother will not be required to attend court on that day, but her counsel shall attend. The purpose of the court appearance will be to discuss procedure and next steps as far as the father’s participation in the proceeding is concerned.
4. If the father does not communicate with the Society within 30 days as requested, he may be noted in default.
5. Until further order of the court, the father (and his counsel if he obtains one) shall have no access to any information contained in the court file in regards to these proceedings;
6. Any material that the father wishes to file in the continuing record or the court file shall be placed in the continuing record exclusively by court staff.
7. The Society is directed to have my order issued and entered. The court staff is directed to have a copy of my order on the front of the continuing record and on the outside of the file folder used for the court’s internal filing system.
8. The Society shall redact all personal and/or identifying information, if any, regarding the mother and the children from the pleadings on the court record.
9. Service on the father of any future document required to be served on the parties and/or filed in the court file by the Society or the mother, is hereby dispensed with until further order of the court.