Court Information

Court File No.: C41819/06

Date: 2012-05-17

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

In the Matter of: The Child and Family Services Act, R.S.O. 1990, c. 11

And In the Matter of: J.H., born […], and F. (E.) H., born […]

Between:

• Catholic Children's Aid Society of Toronto (Applicant)
• L.H. (mother) and M.H. (father) (Respondents)

Before the Court

Justice: Robert J. Spence

Motion Heard: 14 May 2012

Reasons for Judgment Released: 17 May 2012

Counsel

• Mr. Chris Andrikakis – for the applicant society, and as agent for the Office of the Children's Lawyer at the hearing of this motion
• Mr. M.H. (father) – on his own behalf
• Ms. L.H. (mother) – on her own behalf
• Mr. Anthony Snider – for York Region Children's Aid Society, not a party, but appearing on this motion

Nature of the Case

[1] The question for the court to answer is whether this case ought to be transferred from the Toronto Catholic Children's Aid Society ("society") to the York Region Children's Aid Society ("York").

[2] The society's motion to transfer, pursuant to section 48 of the Child and Family Services Act ("Act") is supported by the father and the Office of the Children's Lawyer. The motion to transfer is opposed by York and by the mother.

[3] This case has a very lengthy history dating back to 2006. Much of the historical detail is of little relevance to the issue now before the court. However, for the purpose of understanding my decision it is necessary to outline some of the background, as it provides a factual underpinning for this issue.

Brief Background of Child Protection Proceedings

[4] The society commenced its original protection application in 2006. At that time, the parents and the children were living in the City of Toronto. The matter continued to wend its way through the court until, on July 10, 2008, following an 18-day trial, Justice Marvin Zuker concluded that the mother had engaged in "extreme parental alienation in respect of the children's relationship with their father". Justice Zuker found the children to be in need of protection, pursuant to section 37(2)(f)(i) of the Act (for E.) and section 37(2)(g) of the Act (for J.). He ordered that the children be immediately placed in the care and custody of their father, supervised by the society for a period of 12 months, with access to the mother, in the discretion of the society, including the need for supervision.

[5] As Justice Brownstone noted in his summary judgment reasons, following the release of Justice Zuker's decision, there was a "harrowing series of events" outlined in the father's affidavit, which the mother never contradicted, and which delayed the transfer of the children to the father until August 1, 2008. The children have in fact been living continuously with their father since that date.

[6] On March 10, 2009, following a motion brought by the society, Justice Zuker ordered that mother's access to the children be suspended until such time as a third party therapeutic access supervisor could be put into place during supervised access at the society's offices.

[7] The children have not seen their mother since February 5, 2009.

[8] On January 27, 2010 the society brought a summary judgment motion before Justice Harvey Brownstone, seeking a finding that there was no genuine issue for trial in its Status Review application, and an order that the children should remain with their father for a further six months under society supervision.

[9] By order dated February 1, 2010, Justice Brownstone granted the society's motion, and maintained the children in the father's custody, subject to society supervision.

[10] Justice Brownstone ordered that mother's access, if any, would occur in the "presence of a psychologist who shall provide therapeutic support".

[11] The matter then returned to me, as the case management judge, on further Status Review, on September 1, 2010. Access had not yet begun. Neither mother nor her then-counsel attended court. Her counsel had in fact stated in writing that he would not be attending because Justice Brownstone's decision was under appeal to the Court of Appeal and, in counsel's opinion, the Status Review application was "stayed", pending the outcome of that appeal.

[12] Subsequent to September 1, 2010, there were several more attendances before me, during which period I attempted to negotiate an agreement between the society and mother on the parameters for selecting a qualified person to facilitate the mother's therapeutic access.

[13] On the May 17, 2011 appearance before me I was advised that the Court of Appeal had heard argument on mother's appeal in March but had yet to release its decision. In the meantime, mother was still not having access as there was then a dispute over who would pay the cost of the psychologist. Although Justice Brownstone's order had not addressed this issue, the society advised that it was prepared to pay 50% of the cost, with mother paying the balance. However, mother wanted to bring a motion to argue that she should pay one-third of the cost, with the other two-thirds paid equally by the society and the father.

[14] Mother did bring her motion, but because it was defective, it was not argued on the next court date.

[15] Mother did not attend the subsequent scheduled court date on September 27, 2011; nor did she advise anyone that she would not be attending. Accordingly, I made an order that the society pay one-half the costs of the qualified psychologist, up to a maximum for the society of $2,000.

[16] The society sent the psychologist a $2,000 retainer. The mother did not send any money to the psychologist.

[17] In May 2011, the Court of Appeal dismissed mother's appeal of Justice Brownstone's order.

[18] On January 11, 2012, still not having seen the children since February 2009, nor having sent the psychologist any money for a retainer, the mother brought a motion returnable before me seeking to terminate the society's involvement and an order that the children be immediately returned to her care. I dismissed her motion. And because I found mother's motion to be "frivolous and baseless" I ordered her to pay costs to the society in the amount of $500.

[19] In addition, I made an order under subrule 14(21) of the Family Law Rules that mother be prohibited from bringing any further motions without the court's permission. Mother did not object to that order.

[20] In the meantime, the society's Status Review application continued to remain in limbo.

[21] In preparation for the scheduled court attendance on April 26, 2012, I reviewed section 48 of the Act, in an effort to consider how the ongoing child protection litigation could be brought to an end so that the children could have some sense of permanency in their lives. The parties attended court that day and I made the following endorsement:

I have reviewed section 48 of the [Act] and it appears to me – without submissions from any of the parties – that the appropriate territorial jurisdiction for this matter is York Region. That is where the children live, and have lived for four years; that is where the father lives and it is where the Unified Family Court is situated. However, I am not prepared to make an order transferring this case to York Children's Aid Society without first giving that society an opportunity to make submissions, in the event it is opposed to such a transfer. Accordingly the Toronto society shall forthwith put York on notice that submissions on this issue may be made by any party or agency wishing to do so, on the next court date.

[22] I then adjourned the matter to May 14, 2012, for argument.

Position of York Children's Aid Society – Opposed to the Transfer

[23] The Toronto society filed an affidavit in support of its request to transfer this matter to York. York chose not to file any material in response. However, their legal counsel attended and argued against the transfer. The thrust of York's argument, as I understood it, was that the Toronto society is best positioned to retain carriage of the case given the lengthy history of this matter. Further, it would be unreasonable to burden York with this matter given York's caseload and other resource limitations.

Position of the Mother – Opposed to the Transfer

[24] The mother did not file any material prior to court on May 14, 2012. However, she did hand me a 100 paragraph affidavit which she asked me to accept in support of her position, namely, that the case not be transferred to York. I accepted her affidavit in the courtroom. I asked mother whether she wanted to make any oral submissions in support of her position. She declined to do so, stating that her position was set out in her affidavit.

[25] I have since carefully reviewed mother's affidavit and, while she seems to make it clear in that document that she is opposed to the transfer of the case to York, she does not really explain why she is opposed; nor does she address the transfer issue on its merits. She concludes her affidavit by stating:

However, the "question" of transfer of this case, in fact, becomes completely irrelevant with the serving and filing by the mother of a Motion for Custody and Access at the Superior Court of Justice at 393 University Avenue: a jurisdiction over which Justice Spence has no authority.

Discussion

[26] Section 48 of the Act provides:

Territorial Jurisdiction

48. (1) In this section,

"territorial jurisdiction" means a society's territorial jurisdiction under subsection 15 (2). R.S.O. 1990, c. C.11, s. 48 (1).

Place of Hearing

(2) A hearing under this Part with respect to a child shall be held in the territorial jurisdiction in which the child ordinarily resides, except that,

(a) where the child is brought to a place of safety before the hearing, the hearing shall be held in the territorial jurisdiction in which the place from which the child was removed is located;

(b) where the child is in a society's care under an order for society wardship under section 57 or an order for Crown wardship under section 57 or 65.2, the hearing shall be held in the society's territorial jurisdiction; and

(c) where the child is the subject of an order for society supervision under section 57 or 65.2, the hearing may be held in the society's territorial jurisdiction or in the territorial jurisdiction in which the parent or other person with whom the child is placed resides. R.S.O. 1990, c. C.11, s. 48 (2); 2006, c. 5, s. 7.

Transfer of Proceeding

(3) Where the court is satisfied at any stage of a proceeding under this Part that there is a preponderance of convenience in favour of conducting it in another territorial jurisdiction, the court may order that the proceeding be transferred to that other territorial jurisdiction and be continued as if it had been commenced there. R.S.O. 1990, c. C.11, s. 48 (3).

[27] In the case of Children's Aid Society of Toronto v. A.T., 2010 ONCJ 456, Justice Stanley B. Sherr was faced with competing interests in deciding whether to transfer a child protection case from Toronto to Lindsay, the place where the children had been residing for more than one year. After weighing all the factors, for and against the transfer, Justice Sherr concluded that the "preponderance of convenience" favoured transferring the case to Lindsay.

[28] In the course of deciding this issue, Justice Sherr noted:

Any assessment of the "preponderance of convenience" is to be weighed considering the best interests of the child and not necessarily the wishes or convenience of any of the parties.

[29] I will examine the factors in this case, both for and against the transfer.

[30] While the mother did not make any of these arguments, either in writing or orally, I will attempt to divine her best position, which I expect might be:

1. Mother lives in Toronto and it would likely be more convenient for her to litigate in Toronto than in York Region.

2. The Toronto society and the court in Toronto have greater familiarity with this case, and its history, and it would be cumbersome to begin anew with another court.

[31] I have not been able to conjure up any other possible objections mother might have to the proposed transfer.

[32] I previously noted the basis for York's objection to the requested transfer.

[33] As against these arguments, the preponderance of convenience favours a transfer for the following reasons:

1. As I noted earlier, the children have been living with their father, in York Region, for almost four years. There is no evidence that the father is intending to move with the children from that Region. That is the Region where the children are well settled and where they are attending school.

2. The two children are respectively ages 13 and almost 11 years old. The thirteen year-old has a presumptive right under subsection 39(4) of the Act to receive notice of the proceeding and to attend at the hearing. The younger child, while he has no presumptive right to attend court, might well be given permission to do so by the court were he to request it, given his age and other surrounding circumstances. Since there is no evidence to the contrary, I take it as a common sense given, that it would be more convenient for the children to attend in the territorial region in which they reside, rather than requiring them to travel to a different region.

3. The best evidence as to how the children are progressing is now in the territorial region where the children reside, namely, York Region.

4. There would be no delay in the progress of this case were it were to be transferred to York Region.

5. The father, who lives in York Region, would find it more convenient to attend court there, than attending court in Toronto.

[34] If I were to end my analysis at this point I would conclude that the "preponderance of convenience" weighs heavily in favour of the transfer of this case to York Region. That is because, the primary objections on the part of both mother and York, have to do with their own convenience, rather than the best interests of the children. And while I do take into account the convenience of the parties, I must weigh this in the context of the children's "best interests" which, in my opinion, favours a transfer to York.

[35] But there is an even more compelling reason why this case must be transferred, in the best interests of the children. The Toronto society has made it clear that in the almost four years since the children have been living with their father, they have settled in well with him, and the society no longer has any protection concerns with the father. In theory, the society could simply terminate its involvement, were the children to remain in the father's care.

[36] However, the mother has a temporary custody order in her favour that was granted some years ago in the context of a Divorce proceeding. The existence of this custody order means that if the society were to end its involvement in the life of this family, the mother could argue for the immediate return of the children to her care, even though she has not had any access to them for more than three years. This, according to the society, would immediately resurrect child protection concerns because, as the society submits – and in my opinion the society is correct – a return of the children to the mother's care, when they have not had any contact with her for more than three years, would expose the children to a very real risk of emotional harm. This is particularly so given the court's earlier finding that the mother had engaged in "extreme parental alienation".

[37] The only way to avoid this problem would be for the father to attempt to obtain a variation of the existing Divorce Act custody order, changing custody of the children to himself, so that once the society ends its involvement, the children would automatically remain with the father. It appears that there are only two ways to accomplish this.

[38] First, the father could launch his own proceeding in Toronto, in the Superior Court at 393 University Avenue, and appear before a judge who has no knowledge of the history of the child protection proceedings, and conduct what would be a parallel proceeding in an effort to change the existing custody order. The society would not be a party to that proceeding; they would not be present and the father would be left to his own devices in what could become very protracted and expensive litigation. All the while, the current child protection litigation would remain alive.

[39] The second option would be to transfer this to the Superior Court of Justice located in York Region, where Unified Family Court is alive and well. The effect of this would be to place both the child protection proceeding, as well as any motion under the Divorce Act, before one single judge who would have jurisdiction to make whatever orders are appropriate, in the best interests of the children. This would be done in the presence of counsel for the York society and, presumably with that society's support, expertise and assistance. It would ensure that the court hearing the Divorce Act custody variation would have full knowledge of the ongoing child protection litigation; and it would further ensure that the same court could coordinate a termination of the child protection litigation concurrent with the granting of a custody order to the father under the Divorce Act.

[40] In my view, the second option is far more preferable than the first option. It would allow the substance of this litigation to be dealt with in a more "fair" and "just" manner, and in a way that saves "expense and time". This is necessary not only for the parents but, more importantly, for the two children who have been enmeshed in this litigation for the past six years. The children are entitled, once and for all, to know that the litigation is behind them, and that they can get on with their lives, simply being children.

Conclusion

[41] I am satisfied that the preponderance of convenience requires this case to be transferred to York Region, to the Family Court, Ontario Superior Court of Justice located at 50 Eagle Street West, Newmarket, Ontario L3Y 6B1, and I so order that transfer.

[42] The case shall be returnable in court on a date to be set by the scheduling clerk, in consultation with the parties.

[43] Before I leave this matter I have a request for the Toronto society. I am well aware that the society's file has become quite voluminous, as has this court's file. I would ask the society to take the time to prepare a detailed "transfer memo" for York so that York may get up to speed as quickly as possible. I expect this will save York considerable time by obviating what would otherwise be York's need to review all of the documents in the court file, especially given that much of what transpired years ago is now no longer relevant to the future direction of this matter.

Justice Robert J. Spence

May 17, 2012