WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:
45(7) The court may make an order,
(a) excluding a particular media representative from all or part of a hearing;
(b) excluding all media representatives from all or a part of a hearing; or
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
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.
45(8) 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.
45(9) 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.
COURT OF APPEAL FOR ONTARIO
CITATION: Children’s Aid Society of Ottawa v. A.V., 2016 ONCA 361
DATE: 20160512
DOCKET: C60959
Rouleau, Pardu and Benotto JJ.A.
BETWEEN
The Children’s Aid Society of Ottawa
Applicant (Respondent)
and
A.V.
Respondent (Respondent)
and
S.M.
Respondent (Appellant)
AND BETWEEN
A.V.
Applicant (Respondent)
and
S.M.
Respondent (Appellant)
Gordon S. Campbell, for the appellant S.M.
Marie-Hélène Godbout and Yanik S. Guilbault, for the respondent A.V.
Tracy Engelking, for the respondent the Children’s Aid Society of Ottawa
Jennifer Gallagher, for the Officer of the Children’s Lawyer
Heard: May 4, 2016
On appeal from the orders of Justice Marc Labrosse of the Superior Court of Justice, dated August 7, 2015.
ENDORSEMENT
[1] The appellant is the father of two girls, now 11 and 13. He appeals an order of the Family Court granting the mother (the respondent A.V.) sole custody of the girls with supervised access to him and allowing the Children’s Aid Society of Ottawa (the respondent CAS) to withdraw its Protection Application. The Office of the Children’s Lawyer (OCL) joins the respondents in asking that the appeal be dismissed.
[2] The appellant and A.V. divorced in 2012. The divorce order provided for joint custody with a shared parenting arrangement. Ongoing disputes between the parents rendered the arrangement unworkable and CAS became involved on December 5, 2013. CAS commenced a Protection Application and sought a finding that the children were in need of protection because of the conflict between the parents and the possible exposure of the girls to parental alienation. CAS initially sought an order that the children be placed in the care and custody of both parents on the same terms as their joint custody order for six months, subject to CAS supervision. The OCL was appointed to represent the children.
[3] During the course of the protection proceedings, the parties consented to an assessment under s. 54 of the Child and Family Services Act, R.S.O. 1990, c. C.11. The assessment was conducted by Dr. Worenklein, who issued a report on March 31, 2014. Dr. Worenklein’s opinion was that the appellant was alienating the children against their mother and that the situation was extremely volatile and high-conflict. He recommended that, in the event the alienation persists, the mother be granted full custody with supervised access to the appellant.
[4] The appellant refused to accept Dr. Worenklein’s recommendations. In response to the report and the appellant’s reaction, CAS sought to amend the Protection Application to place the children in the custody of the mother with supervised access to the appellant. The mother then brought a motion to change the final divorce order to grant her sole custody. The appellant brought a cross-motion for sole custody. A temporary order was made on April 16, 2014 placing the children in the custody of the mother pending the hearing of the motion to change the custody provisions in the divorce order. CAS sought to withdraw the Protection Application on the basis that if the mother was granted sole custody and the father’s access was supervised, the children would not be in need of protection.
[5] Labrosse J. seized himself of both the protection and the motion to change actions. He presided over a number of case conferences dealing with procedural matters. On August 27, 2014, he ordered that the motion to change, the cross-motion, and the CAS withdrawal “be argued simultaneously.” His endorsement further said:
I will render my decision on the Motion to Change and Cross-Motion and the CAS will then have the opportunity to proceed with the request to withdraw or not. If the CAS does not proceed with the request to withdraw, I will render a decision on the Temporary Care and Custody Motion.
[6] No appeal was taken from this order and the parties proceeded to a hearing before Labrosse J. over the course of three days between December, 2014 and June, 2015.
[7] Labrosse J. concluded that the divorce order should be varied; the mother was to have sole custody and the father was to have supervised access to the children. He then determined that the children were not in need of protection and allowed CAS to withdraw its Protection Application.
[8] The appellant raises several grounds of appeal:
• The motions judge erred in finding a material change in circumstances warranting a variation of the custody arrangement in the divorce order;
• The motions judge erred in ordering the two actions be argued simultaneously;
• The motions judge erred by not holding a “hearing” in connection with the CAS motion to withdraw pursuant to s. 47(1) of the CFSA and then further erred by failing to specifically find that the children were not in need of protection;
• The motions judge violated s. 54(8) of the CFSA by considering the evidence of Dr. Worenklein on the motion to change.
ANALYSIS
(1) Material Change in Circumstances and the Variation of the Order
[9] The test for varying an order under s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) was set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 13. The judge must be satisfied that: (1) there is a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) the change must materially affect the child; and (3) the change was not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
[10] The motions judge made detailed findings in connection with the appellant’s inability to set aside the parental conflict and meet the needs of the children. The change materially affected the children and was not contemplated when the joint custody order was made, as it was not reasonably foreseeable at the time that the relationship between the parties would reach the level of dysfunction demonstrated by the evidence.
[11] The motions judge then proceeded to do a fresh inquiry into the best interests of the children. He concluded that the appellant had embarked on a campaign to alienate the children from their mother. The detailed findings of fact are grounded in the evidence and do not require appellate intervention.
(2) The Simultaneous Proceedings
[12] The August 27, 2014 order to hear the child protection and custody proceeding simultaneously was not appealed. Even if it had been, we would conclude that it was a proper exercise of the motions judge’s discretion and exactly what is contemplated by the Family Law Rules, O. Reg. 114/99. The Rules impose a duty on the court to deal with cases justly by controlling the process of the case and by dealing with as many aspects of the case as possible on the same occasion: r. 2(5)(d) and (f); and r. 12(5).
(3) The Withdrawal of the CAS Protection Application
[13] The appellant argues that the motions judge did not hold a full “hearing” pursuant to s. 47(1) of the CFSA prior to allowing CAS to withdraw its protection application. Section 47(1) of the CFSA states:
- (1) Where an application is made under subsection 40 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under s. 57.
[14] We reject this submission. The law is clear that a “hearing” in a child protection matter may take many forms, depending upon the circumstances. It may proceed on consent, take the form of a motion seeking leave to withdraw, a motion for summary judgment, or a trial: Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.) (1997), 1997 CanLII 4445 (ON CA), 149 D.L.R. (4th) 464 (Ont. C.A.); Children and Family Services for York Region v. J.G.S. (2004), 2004 CanLII 39017 (ON SC), 246 D.L.R. (4th) 562 (Ont. S.C.); Children's Aid Society of Hamilton-Wentworth v. K.B., 2002 CanLII 61224 (Ont. S.C.), at para. 35; and Family Law Rules, r. 16(2).
[15] During oral submissions, counsel for the appellant acknowledged that the hearing may be on affidavit evidence only but submits that the motions judge erred in not allowing cross-examination. The motions judge considered and rejected the appellant’s request, having determined that there were no issues that could be advanced by cross-examination. The decision to allow questioning is within the discretion of the motions judge: K.B., at para. 35; and Family Law Rules, r. 16. We note as well that the appellant could have questioned witnesses before the hearing and did not do so.
[16] The appellant further submits that a proper hearing was not held because the motions judge never made a finding that the children were not in need of protection. He argues that once CAS initiates a protection hearing, the court before which the proceeding is brought must make a determination as to whether a child is or is not in need of protection.
[17] Contrary to the appellant’s submission, the motions judge did make a finding that the children were not in need of protection. Under the heading, “Should the Society be permitted to withdraw its Protection Application?” the motions judge reviewed the evidence and concluded at para. 115: “I am satisfied that there are no protection concerns, provided that the Mother has sole custody and that the Father’s access continues to be supervised.”
(4) The Motions Judge’s Use of the Evidence of Dr. Worenklein in Considering the Motion to Change
[18] The court may order an assessment in the course of a child protection proceeding pursuant to s. 54(1) of the CFSA. Section 54(8), however, precludes the use of the assessment report “in any other proceeding” except in child protection proceedings and other limited circumstances, unless on consent. The appellant submits that a new hearing is required because evidence from Dr. Worenklein’s report was considered by the motions judge when he determined the change of custody.
[19] We disagree with this submission for two reasons. First, the motions judge took care to separate the findings made on the Protection Application from the motion to change. He highlighted in his reasons the “abundance of evidence, much of which has been provided by the [appellant],” that demonstrated the indicia of alienation. He based his conclusion that the appellant’s attempt to alienate the children from their mother and his decision to grant the mother sole custody on the evidence before him, including affidavits and audio recordings, which largely came from the appellant. In any event, he observed that the report was not conclusive on the issue of custody.
[20] Second, in a lengthy affidavit filed in the custody proceeding, the appellant himself put many parts of Dr. Worenklein’s report into evidence. The appellant was critical of the doctor’s failure to rule out the abuse allegations the appellant had previously made against the mother. The appellant cannot now raise the issue that the evidence was inadmissible.
DISPOSITION
[21] The appeal is dismissed with costs payable by the appellant to the respondent A.V. in the amount of $12,500, to the CAS in the amount of $6,000, and to the OCL in the amount of $2,000. These costs – totalling $20,500 - are inclusive of disbursements and HST.
“Paul Rouleau J.A.”
“G. Pardu J.A.”
“M.L. Benotto J.A. ”