WARNING Section 87(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 may apply:
Prohibition re identifying child
87(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.
COURT OF APPEAL FOR ONTARIO DATE: 20240207 DOCKET: COA-23-CV-0935
Nordheimer, Copeland and Dawe JJ.A.
BETWEEN
Children’s Aid Society of Toronto Applicant (Appellant)
and
R.I., B.I., S.J., N.J. and K.R. Respondents (Respondents)
Chithika Withanage and Diana Castillo, for the appellant Patric Senson, Samantha Wisnicki and Sheila MacKinnon, for J.R. Caterina Tempesta and Jean Hyndman, for N.M. No one appearing for the respondents
Heard: January 16, 2024
On appeal from the order of Justice George Czutrin of the Superior Court of Justice, dated August 21, 2023, dismissing an appeal from the order of Justice Danielle Szandtner of the Ontario Court of Justice, dated April 3, 2023.
Nordheimer J.A.:
[1] The Children’s Aid Society of Toronto (the “Society”) appeals from the order of a judge of the Superior Court of Justice that dismissed the Society’s appeal from an order of a judge of the Ontario Court of Justice. The order set certain dates for monthly access to three children as between their parents and their maternal grandparents. The central assertion of the Society is that the OCJ judge did not have jurisdiction to make the order that she did.
A. Background
[2] There are three children involved in this proceeding, removed by the Society pursuant to the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). A four-day trial was held before the Ontario Court of Justice in November 2022. On December 22, 2022, the OCJ judge determined that two of the children (N.M. and A.I.) should live with their parents and the third child (J.R.) should live with the maternal grandparents. Both placements were for a period of 12 months and were subject to supervision by the Society.
[3] The OCJ judge also ordered specific terms of access. N.M. (age seven at the time) and A.I. (age five at the time) were to have access to J.R. (age 13 at the time) and the grandparents on a monthly basis. The grandparents were responsible for transportation to and from the visits, which were to be on the third Sunday of each month. J.R. and the grandparents were granted the same corresponding access rights. A status review was to be held within 12 months of the order.
[4] It was alleged that the terms of the order regarding access were breached in January 2023. This led to the Office of the Children’s Lawyer bringing a motion, on behalf of J.R., before the OCJ judge, for enforcement of the access provisions.
[5] On February 14, 2023, the OCJ judge adjourned the motion to permit the parents to remedy the breach “by arranging February and March visits with the grandparents and siblings as ordered by the Court”.
[6] The matter came back before the OCJ judge on April 3, 2023. The breach had not been satisfactorily remedied. The OCJ judge chose to give the parents a further opportunity to remedy the breach by ordering access for the next three months on specific dates in April, May, and June. These dates were the same Sundays when the visits were to take place under the December 22, 2022 order. The OCJ judge adjourned the motion again, this time to June 27, 2023, to check on compliance. The OCJ judge said that if there continued to be a breach, she would hear submissions “on what remedy is appropriate in the circumstances. The remedies may include costs payable and/or makeup visits as examples.”
[7] The Society appealed the April order to the Superior Court of Justice. The appeal came on before the SCJ judge on June 12, 2023. Pending a decision on the appeal, the SCJ judge ordered that the April order would continue in force. The SCJ judge also ordered that access would take place on four dates in July, August, September, and October.
[8] By order dated August 21, 2023, the SCJ judge dismissed the appeal. The Society now appeals to this court from the dismissal of its appeal.
B. THE SOCIETY’S POSITION
[9] The Society’s position throughout these proceedings has been that the OCJ judge did not have jurisdiction to entertain the enforcement motion brought by the Office of the Children’s Lawyer on behalf of J.R. In particular, the Society says that the CYFSA is a complete code for all child protection matters and that the only mechanism for returning to the court following a 12-month supervision order was by means of status review.
[10] The Society contends that the OCJ judge misinterpreted her jurisdiction under ss. 11(2), 38(2), and 96 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), by hearing a motion pursuant to s. 1(8) of the Family Law Rules, O. Reg. 114/99 absent a live application before the court.
[11] Section 11(2) of the CJA establishes the jurisdiction of the Superior Court as having “all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.”
[12] In contrast, the Ontario Court of Justice “shall perform any function assigned to it by or under the Provincial Offences Act, the Family Law Act, the Children’s Law Reform Act, the Child, Youth and Family Services Act, 2017 or any other Act”: s. 38(2).
[13] Section 96(1) broadly provides that “[c]ourts shall administer concurrently all rules of equity and the common law.”
[14] Rule 1(2)(a)(ii) of the Family Law Rules states that the Rules apply to all cases under Parts V, VII and VIII of the CYFSA. Rule 1(8) of the Family Law Rules reads:
If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs; (b) an order dismissing a claim; (c) 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; (d) 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; (e) 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; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order.
[15] The Society also asserts that it did not receive procedural fairness in both the February and April hearings before the OCJ judge because the OCJ judge did not permit it to make submissions regarding the court’s jurisdiction. Lastly, the Society contends that there was a reasonable apprehension of bias on behalf of the SCJ judge because of the manner in which he conducted the appeal hearing and because of certain laudatory comments he made about the judges of the OCJ who preside at the relevant court location.
C. ANALYSIS
(i) Jurisdiction of this court
[16] Counsel for N.M. submits that the orders below were both interlocutory and, therefore, this court does not have jurisdiction under s. 6(1)(b) of CJA to hear the appeal. Section 6(1)(b) provides that an appeal lies to the Court of Appeal from a final order of the Superior Court of Justice.
[17] I do not agree. The only question on this appeal is whether the order of the SCJ judge that dismissed the appeal is a final order. That order finally disposed of the issue of the OCJ’s jurisdiction to make the order that it did. Therefore, this court has jurisdiction to hear the appeal.
(ii) Reasonable apprehension of bias
[18] The test for reasonable apprehension of bias is high: Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369.
[19] I do not see any basis for the Society’s submission that the SCJ judge demonstrated any bias in his conduct of the appeal hearing. The SCJ judge attempted to get the parties to resolve the issue, which was entirely reasonable given the nature of the proceedings. Subrule 2(5)(c) of the Family Law Rules actually requires the court to promote its primary objective of enabling the court to deal with cases justly by “helping the parties to settle all or part of the case”.
[20] The Society also contends that references by the SCJ judge to his “respect for” his “wonderful” colleagues at the OCJ were “over familiar” and therefore gave rise to a reasonable apprehension of bias. I do not see a basis for this submission either. The SCJ judge specifically says that “I don’t know all of them [the judges at this particular courthouse] and I don't know the judge who, by the way, this judge”. In my view, this clarification completely undermines any suggestion of positive bias towards the judge who made the order under appeal. I accept that it would have been preferable if the SCJ judge had not offered his views on the quality of the judges of the OCJ in this fashion. Those views were not relevant to the issues but, more importantly, members of the public could easily misconstrue such comments as suggesting a prior relationship with those judges, including the judge being appealed, that might be seen as undermining the required independent and objective determination of the matter in issue. While I do not believe for a moment that any lack of objectivity occurred, appearances can be equally important to realities.
[21] None of that, however, warrants the suggestion that there was an appearance of bias on behalf of the SCJ judge. The conduct of the SCJ judge does not approach that level.
(iii) Authority under r. 1(8)
[22] I now turn to what is the central issue in this case: whether the OCJ judge had jurisdiction to entertain an enforcement motion under r. 1(8). Unfortunately, the SCJ judge did not address this issue directly in dismissing the Society’s appeal. It therefore falls to this court to undertake the analysis afresh.
[23] The Society contends that there must be an existing proceeding, or ongoing case, for a judge to be able to resort to r. 1(8). It says that since the OCJ judge made a final order in December 2022, after the completion of the trial, there was no ongoing case. The OCJ judge was, the Society contends, in effect, functus officio after that point.
[24] I do not accept the Society’s submission. First, the case was not over or spent as the Society contends. The December order was final. But, as the OCL submits, the disputed motion was not about changing a final order, but rather about enforcing it. There was an obligation under the order for various parties to do particular things. The OCJ judge, in her role as the trial judge, was not functus, as that term is properly understood. The OCJ judge, like any trial judge, retained jurisdiction to ensure that the order made was followed.
[25] The Society’s position, by its own admission, would lead to the result that a party who needed the court’s assistance to enforce an order would have to start a new proceeding solely for that purpose. It is not clear what form that proceeding would have to take. In addition, that result is entirely inconsistent with one of the fundamental principles of our court system, which is to avoid a multiplicity of proceedings. Indeed, the CJA embodies this very principle in s. 138 which reads: “As far as possible, multiplicity of legal proceedings shall be avoided.”
[26] Further, the Society’s position does not accord with the wording of the Family Law Rules themselves. The Society says that there is no longer a case when the OCJ judge made the order in December 2022 after trial. Yet the Family Law Rules define what is meant when the word “case” is used in those Rules. Rule 2(1) defines “case”. It reads:
“[C]ase” means an application or any other method allowed in law for bringing a matter to the court for a final order or provisional order, and includes all motions, enforcements and appeals; [Emphasis added.]
[27] The Family Law Rules therefore expressly contemplate that enforcement is part of the case. At the risk of stating the obvious, enforcement of an order cannot be undertaken until the order is made. There is no basis for drawing a distinction between orders, whether made during a proceeding or at the end of the proceeding, in terms of the enforcement process. I would note, on that point, that there are two other rules in the Family Law Rules that deal with enforcement. One is r. 26, which deals with certain forms of enforcement, and the second is r. 31, which deals with contempt. Neither of those rules contemplates starting a new proceeding. Indeed, r. 31(1) provides the contrary. It states that contempt may be sought “by a contempt motion made in the case in which the order was made”.
[28] Part of the expressed rationale for the Society’s position is that it wishes to avoid parties, in a proceeding under the Child, Youth and Family Services Act, 2017, being brought to court to deal with alleged breaches. Instead, the Society emphasizes its mandate to work cooperatively with parties and avoid litigation wherever possible. While commendable, it is not directly relevant to the issue here. Alternatives to court proceedings are promoted in all areas of family law. That courts have the power to enforce their orders in no way undermines the possibility of resolving matters out of court. To the contrary, it is often the very existence of an enforcement mechanism that permits an agreed resolution.
(iv) Other issues
[29] For the sake of completeness, I will address two other issues raised by the Society. One is that the OCJ judge was inconsistent in saying during the hearing that she would not find a breach of the order and then, in her endorsement, finding such a breach. In my view, the Society unfairly characterizes the OCJ judge’s language during the hearing. What the OCJ judge said was that she was not prepared, at that very moment, to find a breach of the order. That provisional position did not preclude the OCJ judge from ultimately concluding that there had been a breach.
[30] The other is the assertion that the OCJ judge did not permit the Society to make its jurisdiction argument. The record on this issue is more nuanced than the Society’s submissions suggest. At the outset of the Society’s oral submissions, the OCJ judge advised counsel that she had read the Society’s written materials and considered the jurisdiction issue. She directed that if the Society’s counsel wished to address the jurisdiction issue, she should address a particular authority which, in the OCJ judge’s view, gave the court jurisdiction to make enforcement orders under r. 1(8). Rather than address the jurisdiction issue at the outset of her submissions, the Society’s counsel addressed the merits of the access issue before the court. After all parties had made submissions on the merits, counsel for the Society sought to make oral submissions on the jurisdictional issue. As time was running short, the OCJ judge, at that point, did not permit the Society’s counsel to make oral submissions on the jurisdictional issue. It would have been preferable for the OCJ judge to hear the Society’s oral submissions on the jurisdiction issue before deciding it. That said, the fact that the OCJ judge did not do so does not change the correctness of her conclusion that she was entitled to rely on r. 1(8) to make the order that she did.
[31] Lastly, on that point, I would add that the OCJ judge was obviously trying to work out a solution to the access issue without resorting to more severe remedies, such as contempt. It was entirely appropriate for the OCJ judge to proceed in that fashion. Contempt is a remedy of last resort.
D. Conclusion
[32] I would dismiss the appeal. No party sought costs and no costs are awarded.
Released: February 7, 2024 “I.N.” “I.V.B. Nordheimer J.A.” “I agree. J. Copeland J.A.” “I agree. J. Dawe J.A.”