Court File and Parties

Court File: 44/2008 Location: Orangeville Court: Ontario Court of Justice (Family Court at Orangeville)

Between:

• Applicant: Dufferin Child and Family Services
• Respondents: R.B., P.L., and G.H.
• Non-Party Interveners: A.T. and M.K.

Before: Justice B. E. Pugsley

Heard: April 10, 2013 Released: April 10, 2013

Ruling on Motion to End Intervener Status

Appearances

• Kathleen O'Grady for Applicant
• David Cameletti for R.B.
• Christopher Scott for A.T. and M.K.
• Respondents P.L. and G.H. not present and not participating

Decision

[1] R.B., P.L. and G.H. are the parents of the three children, C.B. (M)(DOB: […], 2007), L.L. (M)(DOB: […], 2009) and I.L. (F)(DOB: […], 2010).

[2] R.B. is the mother of all three children. P.L. is the father of the younger two children. Although served he has not filed material nor attended court. He was noted in default on January 9th, 2013. G.H. is the father of C.B. He was never located for service. On March 13th, 2013, an order was made dispensing with service of the application upon G.H.

[3] A.T. and M.K. are the maternal grandparents of the children. R.B. is A.T.'s daughter. The grandparents' focus in this matter to date has been on advancing a plan to care for C.B. only.

[4] On September 12th, 2012, the children were apprehended from the Respondent (mother)'s care with a warrant.

[5] On September 17th, 2012, the matter came before the court for the first time in this application. The maternal grandmother, A.T. and grandfather, M.K., advised through counsel that they were preparing a motion to be added as parties to this application.

[6] By order dated September 17th, 2012, the interveners were permitted to examine and copy part of the court record in order to allow them to prepare the pending motion and if necessary the temporary care hearing. The copies were to be returned to the court in the event they were unsuccessful in their motion to be added as parties.

[7] On October 18th, 2012, A.T. and M.K. moved for an order adding them as parties to this application pursuant to section 37 of the Child and Family Services Act (RSO 1990)(c. C.11 as amended). The agency was mute on the issue. The Respondent (mother) strongly opposed the motion. A.T. and M.K. had new counsel by then.

[8] That motion parallels the same motion brought in a previous Application by the interveners in 2008.

[9] For reasons set out in the continuing record on October 18th, 2012, I denied the request for party status but granted the interveners the right to participate as set out in subsection 39(3) of the Act. In my reasons I noted in passing that the interveners had not brought on a Children's Law Reform Act (RSO 1990)(c.C.12 as amended) motion before the apprehension in spite of what they characterized as serious concerns with the care of C.B. by R.B. and their expressed long-term desire for custody of C.B.

[10] The temporary care and custody motion was derailed by the subsequent illness of R.B.'s then counsel to the point where it became a moot issue due to the passage of time. The current status of the application is that the parties are abiding the report of an assessor as to R.B.'s parenting capacity.

[11] In the interim, on December 7th, 2012, A.T. and M.K. commenced a CLRA application for custody of C.B.

[12] The agency took immediate exception to the fact that the grandparent's Application appeared to contain extracts from the CFSA proceeding, including allegedly verbatim in-court submissions made by the agency's counsel and other information that was allegedly from the child protection file.

[13] The CLRA Application was subsequently withdrawn before the first appearance date.

[14] The agency then moved to revisit the status of the grandparents under the October 18th, 2012 order. That motion came on before Justice Clay of this court on March 26th, 2013.

[15] Before Justice Clay, the grandparent's then counsel advised the court that he had a conflict of interest in the file and had reported himself to LawPro, the professional liability insurer owned by the Law Society of Upper Canada, as soon as he received the Applicant's motion material. The court allowed counsel to be removed as counsel of record for the grandparents and adjourned the matter to April 10th, 2013, for argument. I heard that motion today.

[16] The Applicant (moving party), supported strongly by the Respondent (mother), submits that the grandparents breached both the September 17th, 2012, order regarding the access to the CFSA file, and the provisions of that act regarding disclosure of the private CFSA proceedings. In particular, counsel submit that the children's privacy interests, and that of R.B., have been seriously harmed by the act of the interveners. The only appropriate sanction ought to be an order that the grandparents lose their subsection 39(3) right to participate.

[17] The interveners submit that the impugned material was inserted into the CLRA Application due to the inadvertence of inexperienced counsel (an electronic "cut and paste" process gone bad), that the copies were returned pursuant to the September 17th, 2012, order in December, 2012, and that they immediately withdrew the Application as soon as their counsel became aware of the mistake. They submit that there is no reason to change the decision made to allow them a role here as the motion brought by the agency can show no change that truly affects the interests of the children.

[18] The interveners also state in A.T.'s affidavit that the motion should not be granted due to issue estoppel, although this was not argued in submissions made on the interveners' behalf. I note first that argument has no place in an affidavit. Further, there is no issue estoppel here. The status of a participant is always subject to review if circumstances change. Perhaps this is why the issue was not pressed in argument.

[19] Counsel's inexperience is evident in that the Children's Aid Society was made a party Respondent in the CLRA custody Application.

[20] Counsel's mea culpa before Justice Clay also speaks volumes here, although the interveners signed the Application personally. Essentially, counsel threw himself on the grenade.

[21] Any breach of the privacy accorded by the law to child protection proceedings is a serious issue. The Legislature deliberately drew a curtain between the public right to disclosure and the private rights of children and parties in CFSA proceedings.

[22] On the other hand, there are breaches, and there are breaches. In other words, the facts of each case must be considered. Egregious breaches may indeed bring quasi-criminal consequences under the Act. Breaches that are more a matter of form or inadvertence may bring lesser, or no, consequences.

[23] In the fall of 2012 the court adjudicated the issue of the participation of the maternal grandparents. For the reasons set out then they were allowed to participate. That decision weighed the advantages and disadvantages to the parties and the children in allowing such a role. None of those advantages and disadvantages have been affected by the mistakes of the interveners' counsel herein, mistakes that they are responsible for at law.

[24] The interveners have already suffered a consequence in the form of the discontinuation of their Application and the costs associated with this motion. Their former counsel has suffered the consequence of admitting his error in public and reporting himself to LawPro. The court action ended before any events took place in a public forum. The impugned information was largely information available to the grandparents in any event due to their apparent integration into the life of C.B. prior to the apprehension. In the end, the potential mischief of the remedy sought greatly outweighs the potential damage done by the act complained of.

[25] In the event the motion is dismissed.

[26] This is not an appropriate matter for costs.

"BEPugsley"

Justice Bruce E. Pugsley