WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,
(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 . . . publication of the report, . . ., 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.
(8) Prohibition: 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) Idem: order re adult.— 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.
85.—(3) Idem.— A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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 No.: Toronto: Court File: CFO 07 10717
Citation: Catholic Children's Aid Society of Toronto v. J.N., 2012 ONCJ 50
ONTARIO COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid Society of Toronto,
Applicant
— AND —
J.N., M.M.
Respondents.
Before Justice Ellen B. Murray
Heard on February 1, 2012
Decision released on February 2, 2012
Ms. Lauren Stringer ................................................................................... for the applicant society
Mr. Louis Alexiou ................................................................................... for the respondent mother
Ms. Deborah L. Stewart ........................................................................... for the respondent father
MURRAY, E. B. J.:
[1] L.M. was born […], 2010. He has been in the Society’s care pursuant to a temporary order since birth, a period which is now over 17 months, far in excess of the period permitted by section 70(1) of the Child and Family Services Act. He was found to be a child in need of protection pursuant to s. 37(2)(l) of the Act on November 22, 2010. The Society is requesting an order of Crown wardship without access for the purpose of adoption. L.’s parents, M.M. and J.N., oppose that request, and want L. placed in their care subject to Society supervision.
[2] On October 31, 2011, I scheduled a nine-day trial before me, to commence on February 28, 2012. On February 1, 2012, when the parties appeared before me for a trial management conference, lawyers for both parents requested an adjournment of that trial.
[3] The Society vigorously opposes that request, because of the lengthy period that L. has already been in the Society care and the necessary extension of that time if an adjournment is granted.
[4] The adjournment was requested because a parenting capacity assessment ordered on October 31, 2011, is not completed, and will not be completed by the scheduled trial dates. Mr. M. brought the motion requesting the assessment; the order was made on consent, and the parties chose the assessor, Dr. Oren Amitay. The order provided that he complete and file the assessment report by January 13, 2012. Counsel advised me that they have had difficulty getting clear information from Dr. Amitay about when he might complete his report. Father’s counsel advises that the doctor has met with her client only once. Society counsel advises that the doctor thought his report would be completed by mid-March, provided that he did not have to interview collateral sources. At this point, it does not appear that I can conclude that the report will be assuredly available by any particular date.
[5] In its pleadings, the Society alleges that L. cannot safely be placed with his parents under a supervision order because of a history of grossly inadequate hygiene; an inability, despite extensive assistance, to learn and execute basic childcare tasks; and Mr. M.’s violence to Ms. N.. The Society alleges that possible cognitive limitations or psychological difficulties of the parents may contribute to some of these alleged parenting deficiencies.
[6] The parents in their answers dispute the Society’s concerns. They assert that they are fully able to care for L. and that they have many community and family supports.
[7] Father’s counsel argues that Dr. Amitay’s report is a crucial piece of evidence, and that to deny the adjournment is to deprive her client and Ms. N. of the benefit of this evidence. She submits that her client has the right to be allowed to present the best evidence possible in a case as important as this, in which Crown wardship without access is at stake. Ms. N.’s counsel supports this submission. Both counsel point out that their clients are not responsible for the delay in the completion of the assessment.
[8] Society counsel attempted to explore possibilities that might allow Dr. Amitay to give evidence at trial and still preserve the trial dates. She raised the possibility that, if the doctor was able to complete the assessment process (but not write a written report) before the trial, that counsel could hear his opinion orally by teleconference, review his notes (as is their right under the order), and that the doctor could give his evidence viva voce. Parents’ counsel rejected this option.
[9] I am denying the request for an adjournment of the trial for the reasons set out below.
The facts
[10] A review of the relevant facts and timelines is in order.
L. was apprehended at birth, and a protection application was commenced on August 10, 2010.
Each parent quickly retained able counsel, experienced in the field of child protection—Ms. N. retained Mr. Alexiou by September 2010, and Mr. M. retained Ms. Stewart by October 2010.
As set out above, a finding that the child was in need of protection was made on consent by the case management judge on November 22, 2010.
The Society brought a summary judgement motion heard by me on October 5, 2011. I dismissed that motion as the evidence demonstrated that there are triable issues in the case. I ordered that the parties attend on December 5, 2011 for a trial management conference, indicating that I was concerned because the timelines had already been exceeded, and that a trial needed to be scheduled as soon as possible.
At the argument on the summary judgement motion on October 5, Mr. M.’s counsel indicated that she wished to bring a motion requesting an assessment. No material requesting such an order had been had served and filed for that day, and her motion was scheduled for October 31, 2011.
On October 31, 2011, the Society joined parents’ counsel in requesting a parenting capacity assessment, and in asking that the trial management conference scheduled for December 5th be vacated. All counsel indicated that, even if the assessment was not ordered, that they were not ready to proceed to trial. Counsel indicated that they could find an assessor who could have the report completed by the end of the year.
On October 31, 2011, I scheduled a trial for 9 days commencing February 28, 2012. I acceded to the parties’ request to order an assessment, but warned them that, as they well knew, there were many reasons why an assessment could be delayed. I advised them that I would not be receptive to future requests to adjourn the trial triggered by a delay in the assessment process for any reason. I vacated the December 5 trial management conference, rescheduling that conference for February 1, 2012.
Analysis
[11] I accept that it might be helpful to the parties to have the results of an assessment. It might be helpful to the court. However, I do not see this potential evidence as necessary or crucial to the parents’ case, as alleged by parents’ counsel. The motion for an assessment could have been made much earlier, at the beginning of the case in the fall of 2010[^1]. No motion for an assessment was made until October 31, 2011. Parents’ counsel are very experienced, and chose to bring the motion until the 11th hour.
[12] Father’s counsel attempts to explain the delay in bringing the motion by pointing to the fact that the case management judge suggested an assessment only in March 2011, and that the Society had brought a summary judgment motion. Neither of these facts explain a delay by parents’ counsel in pursuing a motion to obtain evidence that they view as being important to their clients’ case. As I observed above, it was open to counsel to bring their own motion in the fall of 2010.
[13] If I grant an adjournment, it necessarily means that I extend the time that L. will be in the Society’s temporary care. The next available trial dates are June 18-29, 2012. By that time, L. will have been in Society care for 22 months, almost twice the permitted time.
[14] Section 70(1) of the Act is a statutory recognition of the importance of timely permanency planning for children. That section provides that for a child L.’s age (under six years old), that a court may not make an order for society wardship which results in the child being a Society ward for more than 12 months. In calculating the period of Society wardship, the court is to include any periods in which a child has been in the Society’s temporary care. Section 70(4) provides that this time period may be extended “by a period not to exceed six months if it is in the child’s best interests to do so”. The decision to extend must be viewed from the child’s perspective. (See C.A.S. of Ottawa-Carleton v. K.F., 2003 CanLII 67559 (ON SC), O.J. 2326 (S.C.J..) Where the statutory time period has been significantly exceeded, the court should exercise its discretion to further extend the time only in “the exceptional case”. (See C.A.S. of Toronto v. D.S., 2009 CanLII 60090 (ON SC), O.J. 4605 (S.C.J.)
[15] This is not an “exceptional case”. Mr. M. and Ms. N. are in a position to present evidence that speaks to their competence as parents. They presented such evidence in answering the case made by the Society at the summary judgement motion. Dr. Amitay’s opinion on the issue of their competence as parents is not necessary for a fair trial.
[16] L. needs a permanent home—either with his parents or in an adoptive home. A further delay in the trial that will provide him with a permanent home is not in his best interests. For that reason, I am denying the request for an adjournment of the trial.
Released: February 2, 2012
Signed: Justice E. B. Murray
[^1]: Pursuant to regulation, it was open to the court to order an assessment on the consent of the parties at any time, or after the finding that L. was in need of protection, or after the conclusion of the temporary care hearing.