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.
45.— (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.
45.— (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 Information
Court File No.: 12/729
Date: 2013-04-04
Ontario Court of Justice
East Region
In the Matter of: The Child and Family Services Act, R.S.O. 1990
Parties
Between:
The Children's Aid Society of the County of Renfrew, Applicant
-and-
T.R., A.W., M.S., Respondents
And in the Matter of the Children:
- K.R.W., born in 2000
- A.-C. W., born in 2002
- S.M.M.S., born in 2006
Reasons for Judgment on a Motion to Transfer These Proceedings to the City of Ottawa
Before: The Honourable Mr. Justice Grant Radley-Walters
Released: 4th day of April, 2013 at Pembroke
Appearances
- Richard H. Dickinson – Counsel for the Children's Aid Society of Renfrew County
- George MacPherson – Counsel for the Children's Aid Society of Ottawa
- Cheryl Hess – Counsel for the children, K. and A. from the Office of the Children's Lawyer
- Audra Bennett – Counsel for the mother, T.R.
- No appearances from the fathers, A.W. and M.S.
Reasons for Judgment
April 4th, 2013
The Honourable Mr. Justice Grant Radley-Walters
Ontario Court of Justice
Introduction
[1] The Children's Aid Society of the County of Renfrew brought a motion returnable March 13th, 2013 to transfer the proceedings with respect to the children, K.R.W., (hereinafter described as K.) born in 2000 and A.-C. W., (hereinafter described as A.) born in 2002 to the City of Ottawa where they currently reside.
[2] The Children's Aid Society of the County of Renfrew also brought a motion for Summary Judgment with respect to the child, S.M.M.S., (hereinafter described as S.) born in 2006 requesting an Order placing the child with his mother subject to the supervision of the Applicant Society.
[3] On March 13th, 2013, I made a consent Order based on the Summary Judgment motion that the child, S.M.M.S., born in 2006 was found to be in need of protection pursuant to s.37(2)(b)(i) of the Child and Family Services Act. In addition, I ordered that the child be placed with his mother, T.R., and his father, M.S., subject to the supervision of the Applicant Society for a period of and up to including July 24th, 2013 and effective March 13th, 2013. This was subject to a number of terms which were identified in the Order.
[4] This Judgment therefore deals with the motion to transfer the proceedings to the City of Ottawa.
Facts
[5] These proceedings involve three children: K.R.W., born in 2000; A.-C. W., born in 2002 and S.M.M.S., born in 2006.
[6] Ms. R. is the mother of all three children.
[7] K. and A. reside with the father, Mr. W. in Ottawa.
[8] S. resides with his parents, Ms. R. and Mr. S. in Pembroke.
[9] Since October of 2010, Ms. R. has been exercising access to the children, A. and K. every second weekend initially in her home in Almonte and following her move in the fall of 2011 in Pembroke.
[10] The matter is before the court in the form of a Protection Application commenced by the Children's Aid Society of Lanark in November of 2010 while the children were residing with Ms. R. in the County of Lanark. The protection issues concerned Ms. R.
[11] An interim order was made on November 1, 2010 placing A. and K. in the care of their father in the City of Ottawa and S. in the care of his mother and Mr. S. who were residing in the Lanark County. The placements were subject to the supervision of the Children's Aid Society of Lanark. That interim order is still in effect.
[12] Mr. W. and Ms. R. have a long history of involvement with child protection authorities starting with the Nova Scotia Department of Community Services. The issues focussed around neglect, and the mental stability of both parents.
[13] In 2005, the family moved to Ottawa and the Ottawa Children's Aid Society became involved. The protection issues and concerns continued. By this time Mr. W. and Ms. R. had separated. In 2006, S. was born and Ms. R. and Mr. S. began to live together. The Ottawa CAS remained involved.
[14] In July of 2009, Ms. R. moved to Lanark County. There were apparently issues over where the children should reside and Ms. R. commenced proceedings in the Superior Court. On July 16, 2009, she obtained an order requiring Mr. W. to return A., K. and their older siblings to her in Lanark. After obtaining the order, the proceedings were abandoned.
[15] The Lanark CAS continued to monitor the file because of concerns about Ms. R.'s care of the children.
[16] On October 26, 2010, Ms. R. was assaulted by an unknown male. Ms. McInnes, the Lanark worker attended the residence and felt that the neglect issues had finally reached the point where an intervention was necessary. These proceedings were commenced and A. and K. were placed with their father in Ottawa. S. remained with Mr. S. and Ms. R. in Lanark.
[17] On November 1, 2010 the interim supervision order was made.
[18] On February 3, 2011, Ms. R. filed an Answer asking that the three children be placed with her and in the alternative, consenting to an order of supervision placing the three children with her. There has been no amended Answer.
[19] Ms. R. moved from Almonte to Pembroke in August 2011. The CAS of Lanark requested the assistance of the CAS of Renfrew to monitor the placement of S. with Ms. R. and Mr. S.
[20] During 2011, the two placements were monitored by the Lanark worker.
[21] At no time did the CAS of Lanark request that the CAS of Ottawa monitor the placement of the children, A. and K., while in the care of Mr. W.
[22] On November 10, 2011, Ms. McInnes asked the Renfrew Society to monitor Ms. R. in Pembroke. Ms. Michaud of CAS of Renfrew had difficulty reaching Ms. R. and had minimal contact during the spring of 2012.
[23] In December of 2011, the parents entered into mediation and it was agreed that if Ms. R. completed certain expectations, the children would be placed with her.
[24] The CAS of Lanark requested the CAS of Renfrew consent to a transfer of the proceedings to Renfrew in June 2012. The CAS of Renfrew consented to the transfer of the proceedings.
[25] On July 19, 2012, the proceedings were transferred to Renfrew County. There do not appear to have been any affidavits filed in support of the motion.
[26] In June of 2012, the file was transferred to Tiffany Wilkie who has now left CAS of Renfrew and resides in Fredericton, New Brunswick. Ms. Wilkie monitored the file during the summer of 2012 and continued to have concerns about Ms. R.'s stability and issues of neglect.
[27] On September 14, 2012, CAS of Renfrew assigned Ms. Kenrick to monitor Ms. R. Ms. Kenrick discovered that there was no worker assigned to monitor the placement with Mr. W. in Ottawa and accordingly contacted the Ottawa Society. Ms. Dean was assigned.
[28] On October 5, 2012 the CAS of Renfrew requested the CAS of Ottawa to monitor the placement of A. and K. while in the care of Mr. W.
[29] On October 10, 2012, Mr. W. filed an amended Answer asking for custody of K. and A. pursuant to section 57.1 of the Child and Family Services Act.
[30] Ms. Kenrick continued to follow the placement of S. with his mother, Ms. R. and Mr. S. The issues of neglect that have followed Ms. R. since she lived in Nova Scotia continued. The house has been in a state of neglect and Ms. R. is unable to maintain it otherwise. She has had health problems as the result of a fall. She also complains of financial difficulties at one point was relying on a stove in the kitchen to provide heat. There have been concerns about S.'s health. Between September 1 and January 18, he has missed 20 days of school.
[31] At times, Ms. R. has been resistant to Society intervention objecting the worker seeing S. at school and to meeting with the worker if her lawyer is not present.
Issue
[32] Should the file involving the two children, K. and A. be transferred to the Superior Court of Justice in Ottawa at the present time?
Law and Analysis
[33] The territorial jurisdiction for a hearing under the Child and Family Services Act is dealt with in s. 48 as follows:
Territorial Jurisdiction Defined
48. (1) In this section, "territorial jurisdiction" means a society's territorial jurisdiction under subsection 15(2).
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.
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.
Orders Affecting Society
(4) The court shall not make an order placing a child in the care or under the supervision of a society unless the place where the court sits is within the society's territorial jurisdiction.
[34] Madam Justice Blishen in the case of Children's Aid Society of Ottawa v. H.C. and C.C., considered a motion dealing with the jurisdiction of the Children's Aid Society of Ottawa over a child who had, until recently, resided in the Province of Quebec. Madam Justice Blishen canvassed the law surrounding s. 48 of the Child and Family Services Act and made reference to a decision of Justice Robert Daudlin in Children's Aid Society of Windsor-Essex (County) v. C. (C.), [2000] O.J. No. 4991. In paragraphs 13 and 14 of her decision she stated:
[13] In dealing with the jurisdictional issue, on appeal, Justice Daudlin carefully considered the case law regarding ordinary residence. He then went on to state:
[24] In addition, in protection cases, it may well be determined that the condition of the child's ordinarily residing in the territory of the society is not a requirement. Throughout the C.F.S.A. section on protection, the pivotal element is child safety, not child safety for ordinary resident children in the territory. As well, the paramount objective of C.F.S.A. under s. 1(a) is to promote the best interest, protection and well being of children. Under s. 15(3), societies have the duty, in fulfilling the objective, to protect children within their territories. In my view, s. 48 has more to do with establishing the territorial jurisdiction of the various societies in Ontario than conferring jurisdiction upon the court to deal with children brought before it. Nowhere in the sections of the Act concerning generate objectives and duties are there requirements of residency. I would therefore conclude that where the child ordinarily resides is irrelevant in a matter of protection.
[14] I agree. Under the Child and Family Services Act, the best interests, protection and well being of children are paramount. Children's aid societies have the mandate and obligation to investigate allegations that children within their territorial jurisdictions may be in need of protection and to take action to protect those children, including apprehending children or bringing cases before the court where necessary, regardless of the "ordinary residence" of the children. Whether the children are in the jurisdiction as visitors, tourists, refugees or to attend school should not and does not make a difference when there are protection concerns.
[35] Mr. Justice Stanley Sherr has considered the provisions of s. 48(3) of the Child and Family Services Act. This is the provision that relates to the preponderance of convenience in favour of conducting a proceeding in another territorial jurisdiction. Mr. Justice Sherr concluded that s. 48(3) of the Child and Family Services Act takes priority over Rule 5(8) of the Rules of Family Law. He also recited the test on the onus issue as well as the factors to be considered in weighing the preponderance of convenience. Mr. Justice Sherr in the case of Children's Aid Society of Toronto v. A.T., 2010 ONCJ 456 stated in paragraphs 14, 15, and 16 as follows:
[14] In this case, subsection 48(3) of the Act, which is a statutory provision, takes priority to subrule 5(8), which is a regulation under an Act. The standard that I will apply is preponderance of convenience.
[15] The onus to establish that there is a preponderance of convenience to hear the proceeding in another jurisdiction is on the party seeking the transfer. See Children's Aid Society of Prescott-Russell v. B.B. and M.B., [1991] O.J. No. 2540 (Ont. Gen. Div.).
[16] 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. See Children's Aid Society of Halton Region v. Katherine C., 111 A.C.W.S. (3d) 510, [2002] O.J. No. 382 (Ont.C.J.), where the court found that the transfer request, which was made on the eve of trial, would unduly delay the case and was contrary to the child's best interests.
[36] It is the position of the Children's Aid Society of the County of Renfrew as well as the Office of the Children's Lawyer for the children, A. and K. that this matter should be transferred to Ottawa. Both the mother, T.R., as well as the father, A.W. and the father, M.S. together with the Children's Aid Society of Ottawa oppose the transfer of this file to Ottawa.
[37] I find that the onus to establish that there is a preponderance of convenience to hear the proceeding in Ottawa is on the Children's Aid Society of the County of Renfrew. I also find that any assessment of the preponderance of convenience is to be weighed considering the best interests of the children and not necessarily the wishes or convenience of any of the parties. In this case, I find that the Children's Aid Society of the County of Renfrew has not met that onus.
[38] The factors that I rely on in coming to this decision are as follows:
Both of the biological parents of K. and A. wish the matter to be tried in the County of Renfrew. Mr. S. who is residing with Ms. R. also wishes the trial to be in the County of Renfrew.
Until the Court conducts a Settlement Conference, the Court will not know precisely what witnesses are required. At the latest, the issue of what witnesses are required will be determined at a Trial Management Conference.
T.R. has admitted in open court that her son, S. born in 2006 was in need of protection when he was apprehended by the Children's Aid Society of the County of Lanark in November of 2010. This admission will substantially limit her ability to argue that A. and K. were not in need of protection since they were apprehended at the same time as the child, S. The cast of witnesses will change dramatically if the trial in these proceedings only deals with the dispositional issues as opposed to the protection issues and dispositional issues.
I am mindful that the child, K., is twelve years of age and by virtue of section 39(4) of the Child and Family Services Act, has a right to be present at the trial. K. lives in the City of Ottawa. Notwithstanding this, Ms. Hess, on behalf of the Office of the Children's Lawyer, indicated that it would not be her intention to call K. as a witness.
Both K. and A. have a connection with the County of Renfrew given that they have exercised access with their mother and Mr. S. every second weekend since the fall of 2011.
Ms. Hess, on behalf of the Office of the Children's Lawyer, representing the two children, has argued that the child, A., wishes to return to the care of her mother and she is anxious that this matter proceed as quickly as possible.
Taking into consideration the Ontario Court of Justice's schedule for the County of Renfrew, I note that this matter could proceed to a Settlement Conference in the very near future and if that matter was not successful in resolution, then a Trial Management Conference and Trial could be held in 2013.
In all of the circumstances, I would dismiss the motion of the Children's Aid Society of the County of Renfrew to transfer these proceedings to Ottawa.
Dated at Pembroke, this 4th day of April, 2013
________________________________________
The Honourable Mr. Justice Grant Radley-Walters