Court Information

Court File No.: C70300/14 Date: 2014-07-28 Ontario Court of Justice North Toronto Family Court 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties and Representation

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

And in the Matter of:

• M.T. born […] 2000
• S.T., born […] 2003
• B.M., born […] 1997
• C.M., born […] 1999

Between:

• R.G. and K.G., Applicants
• and
• Catholic Children's Aid Society of Toronto, Respondent

Before: Justice Robert J. Spence

Motion Heard on: 9 July 2014

Reasons Released on: 28 July 2014

Counsel

• R.G. and K.G., self-represented applicants (not appearing on the Motion)
• Mr. Alec Duncan, for the respondent society
• Ms. Cathy Smuk, for the Office of the Children's Lawyer, legal representative for the child C.M.
• Mr. Lorne Glass, for the Office of the Children's Lawyer, legal representative for the child B.
• Ms. Margarida Pacheco, for the Office of the Children's Lawyer, legal representative for the child S.T.
• Ms. Sheila MacKinnon, for the Office of the Children's Lawyer, legal representative for the child B.M.
• Ms. Deborah Stewart, for P.A., mother of S.T. and B.

Nature of This Case

[1] The narrow issue to be decided in this case is whether leave of the court is required to withdraw a status review application which has been brought following the making of a Crown wardship order.

Background

[2] The applicants were foster parents who previously provided foster parenting services through an agency called Caithkin, under contract.

[3] The children B.M. and C.M. are siblings. They are now aged 17 and 15 years respectively. Both children are Crown wards, silent as to access. In or about 2004 B.M. and C.M. were placed, through Caithkin, with the applicants.

[4] B. and S.T. are a separate set of siblings. They are now aged 14 and 11 years respectively. Both children are Crown wards, silent as to access. These two siblings were also placed with the applicants, through Caithkin, in or about 2007.

[5] The working relationship between the applicants as foster parents, and Caithkin began to break down beginning in or around 2012.

[6] In or about January 2014 Caithkin terminated its contractual relationship with the applicants and, following this, the Catholic Children's Aid Society of Toronto (society) notified the applicants that their license to operate a foster home was revoked.

[7] In or about early February 2014, the applicants brought a status review application seeking to terminate the Crown ward status of all four children, and to have the children placed with them either under a supervision order, or a custody order, pursuant to section 65.2 of the Child and Family Services Act (CFSA).

[8] The status review application was initially brought in the Superior Court of Justice, Family Court in Barrie but, on consent, was transferred to this court, with a first return date scheduled for February 27, 2014, for a case conference.

[9] Because of the severe winter weather, combined with the fact that the applicants lived near Barrie, I permitted the applicants to participate by telephone conference. On that first appearance date I appointed counsel for each of the four children, from the Office of the Children's Lawyer (OCL). I also made a temporary supervision order in favour of the applicants, on specified terms and conditions. I then adjourned the matter to April 16, 2014 for a case conference, with the hope that I would have meaningful feedback from the OCL.

[10] On April 16, 2014, the applicants attended (by telephone conference) along with all four OCL lawyers. However, not all of the lawyers had been able to meet with their child clients. I adjourned to July 9, 2014, with the temporary supervision order to remain status quo.

[11] On April 17, 2014, the applicants filed a Form 12 notice of withdrawal of their status review application.

[12] On April 24, 2014, the society filed a notice of motion, returnable April 28, 2014, seeking to vary the temporary supervision order, by placing the children in the care and custody of the society.

[13] The applicants failed to attend court, either personally or by telephone on April 28, 2014. On that day different positions were taken as to whether the notice of withdrawal automatically brought the status review proceeding to an end. However, because the applicants did not attend, and because it was not clear to me that they understood the legal implications of filing their notice of withdrawal, I adjourned the matter to the previously-scheduled date of July 9, 2014.

[14] I also made the temporary variation order sought by the society, placing the children in the society's care.

[15] As to the issue of whether or not leave of the court was required to terminate the status review application, I required the parties to prepare written argument for the next court date. I also strongly encouraged the applicants to be present at the next court date.

[16] On July 9, 2014, counsel appeared, but the applicants did not.

The Position of Each Party

[17] The position of each party:

1. The society argues that the filing of the notice of withdrawal does not automatically terminate the status review proceeding because leave of the court is first required. The society argued that leave ought to be granted.

2. Counsel for S.T. also argued that leave is required, and that leave should be granted to discontinue in respect of her client.

3. Counsel for C.M. similarly argued that leave is required, but that leave should not be granted in respect of her client.

4. Counsel for B. argued that leave of the court is not required.

5. Counsel for B.M. also argued that leave of the court is not required.

6. Counsel for the biological mother of two of the children argued that the court should treat the status review application as having been abandoned or, in the alternative that leave of the court is not required or, in the further alternative, if leave is required, it should be granted.

Discussion

[18] Those counsel who take the position that leave is not required rely, in part, on Rule 12(1) of the Family Law Rules (Rules). Rule 12(1) states:

WITHDRAWING APPLICATION, ANSWER OR REPLY

12. (1) A party who does not want to continue with all or part of a case may withdraw all or part of the application, answer or reply by serving a notice of withdrawal (Form 12) on every other party and filing it. O. Reg. 114/99, r. 12 (1).

[19] Rule 2(1) defines "application" as follows:

"application" means, as the context requires, the document that starts a case or the procedure by which new cases are brought to the court for a final order or provisional order

[20] A status review application is a "document that starts a case". Therefore, on its face, it would appear that this rule permits the unfettered withdrawal of a status review application, simply by doing what the applicants did in this case, namely, filing their Form 12 notice of withdrawal.

[21] In the same way, it would appear on its face that this rule also permits the unfettered withdrawal of a protection application simply by filing a Form 12. But such is not the case.

[22] The cases which have been decided subsequent to the enactment of this rule make it clear that, contrary to the wording of rule 12(1), it does not apply to the withdrawal of a protection application initiated by a children's aid society.

[23] I raise the matter of the withdrawal of protection applications at this stage of my reasons because even though the present case pertains to status review applications rather than protection applications, it will be seen that despite the apparently clear wording of rule 12(1), a consideration of the relevant provisions of the CFSA can lead to the conclusion that rule 12(1) has equal inapplicability to both types of applications.

[24] In Children and Family Services for York Region v. JGS, [2004] O.J. No. 4681 (S.C.J.), Perkins J. considered whether the applicant society could unilaterally withdraw its protection application. Perkins J. held that such a unilateral withdrawal, without leave of the court was not permissible. In coming to this conclusion, Perkins J. considered the wording of s. 47(1) of the CFSA, which provides:

Child protection hearing

47. (1) Where an application is made under subsection 40 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

[25] Having regard to this section, as well as the case law, Perkins J. concluded (at paragraphs 31 and 32):

So in keeping with the preponderance of the case law to date, I conclude that section 47(1) of the CFSA requires that the issue of whether the child involved in a protection application is in need of protection must be judicially determined in every application commenced under section 40(1) or (4), and that rule 12(1) does not apply to permit the withdrawal of a protection application.

The question of a status review application's withdrawal is not before me and I make no determination of the effect of rule 12(1) in a status review.

[26] In the result, Perkins J. confined his decision to the relationship between rule 12(1) and protection applications only.

[27] As the foregoing reveals, Perkins J. relied on section 47(1) of the CFSA to arrive at the conclusion that rule 12(1) does not apply to permit the withdrawal of a protection application. However, section 47(1) of the CFSA pertains only to protection applications, and has no applicability to status review applications. Accordingly, I must ask myself whether there is something else in the CFSA which would lead to a similar conclusion for status review applications that Perkins J. arrived at for protection applications.

[28] The only reported case of which I am aware that addresses the issue of withdrawing a status review application is Weechi-it-te-win Child and Family Services v. D.M. and J.F. [1992] 3 C.N.L.R. 165 (Ont. Ct. Prov. Div.), a decision of Little J.

[29] The status review application came before that court, having been initiated by the society in respect of three children who had previously been made society wards and for whom the society was now seeking an order of Crown wardship.

[30] The facts of that case were somewhat out of the ordinary. The children had previously been made society wards of the Kenora-Patricia Child and Family Services (KPCFS). However, because of a Ministerial change in geographic band designation, the jurisdiction for the children was transferred from KPCFS to the applicant and the children were placed in the applicant society's care and custody. Because of this, the conduct of the status review application before Little J. was transferred to the applicant society, which subsequently sought to withdraw its status review application.

[31] All parties, including the children consented to the applicant society's request to withdraw its status review application.

[32] The applicant society took the position that it could withdraw the status review application in the face of all-party consent, without adducing any evidence. In the alternative, the society sought a motion permitting it to withdraw, supported by evidence.

[33] Little J. cited the provisions of section 60 (now section 64) of the CFSA and section 61 (now section 65) of the CFSA.

[34] Section 64(2) of the CFSA states:

Society to seek status review

(2) The society having care, custody or supervision of a child,

(a) may apply to the court at any time for a review of the child's status;

(b) shall apply to the court for a review of the child's status before the order expires, unless the expiry is by reason of subsection 71 (1); and

(c) shall apply to the court for a review of the child's status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for society supervision. 2006, c. 5, s. 22.

[35] Section 65(1) of the CFSA provides:

Court may vary, etc.

65. (1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57 (1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1. R.S.O. 1990, c. C.11, s. 65 (1); 2006, c. 5, s. 23 (1).

[36] Little J. noted that the applicant society "was obliged to commence" the status review application "in accordance with the clear wording of section [64 (2)(b)] of the CFSA.

[37] Little J. then referred to rule 12 of the (then) Rules of the Ontario Court of Justice, Provincial Division, which stated:

Upon the commencement of a proceeding, the clerk shall set a day for hearing, issue a notice of hearing in the prescribed form and seal the notice of hearing and the application with the seal of the court.

[38] Little J. held that this wording was mandatory and that the court could not refuse to issue a notice of hearing.

[39] As noted above, at such time as that "hearing" takes place before the court, section 65(1) confers authority on the court to make an order "in the child's best interests". In doing so, the court must be guided by the factors set out in section 37(3) of the CFSA.

[40] On the basis of the foregoing analysis, Little J. held:

. . . the court cannot be deprived of jurisdiction in proceedings under the CFSA on the consent of the parties. The court has a duty to proceed with the status review application because of the community interest in the welfare of children and to ensure that the best interests of the . . . children are served.

It is my decision that [the society] may not as of right withdraw the status review application or bring a motion to withdraw the status review application for the reasons that I have stated. The court is obliged to inquire into the circumstances of the children in this case, so as not to leave them in a sort of limbo.

The Reasoning in Weechi-it-te-win Child and Family Services

[41] Little J.'s analysis followed the correct statutory/rule path.

[42] First, she correctly noted that the CFSA mandated the bringing of the status review application, as the children before her were society wards, a status which could not remain permanent.

[43] Next, she observed that once the status review application was brought, the rules of the court, then in force, mandated the setting of a hearing.

[44] Finally, in order to satisfy the need for the mandatory hearing, the court was required to embark on an inquiry - of some sort - and to arrive at a decision as to what is in the "best interests" of the children, based on evidence presented to the court. If a hearing or inquiry by the court were to be summarily removed from the process simply by filing a notice of withdrawal, then it would not be possible for any judicial determination to be made as to what is in the best interests of the children.

Does the Same Reasoning Apply to This Case?

[45] The analysis which led to the result in Weechi-it-te-win Child and Family Services, is not entirely the same as the analysis in this case. The primary difference is in respect of the statutory path.

[46] In Weechi-it-te-win Child and Family Services the society was mandated to bring a status review application because [now] section 64(2)(b) of the CFSA leaves a society with no choice but to proceed in this way following the making of a society wardship order.

[47] In the present case, the children were made Crown wards and because of this there is no mandatory requirement for either the society, or anyone else, to bring a status review application. The legislative provisions respecting the present status review application are permissive rather than mandatory.

[48] It is this permissive or voluntary nature of the present status review application that counsel rely on to support the argument that leave of the court is not required. In other words (the argument goes), if the CFSA doesn't require a status review application to be brought, if the application is brought purely on a voluntary basis, then it should be equally voluntary or permissible for the applicant bringing that status review application to decide to terminate the proceeding.

[49] While that argument has a certain initial appeal, on closer analysis it must ultimately fail.

[50] The Provincial Court Rules in force when Weechi-it-te-win Child and Family Services was decided were different than the present Rules. In the former – as I noted earlier – the rule required the clerk to "set a day for hearing".

[51] The present rule which appears to be closest to the former rule, is rule 8. Rule 8(4) provides:

COURT DATE SET WHEN APPLICATION FILED

(4) When an application is filed, the clerk shall,

(a) set a court date, except as provided by subrule 39 (7) (case management, standard track) and subrule 41 (4) (case management, clerk's role); and

(b) seal the application with the court seal. O. Reg. 114/99, r. 8 (4); O. Reg. 89/04, s. 2.

[52] Therefore, as can be seen, the former rule required the clerk to set a "hearing day", whereas the present rule requires the clerk to set a "court date". Little J. held that once a hearing day was mandated, the court was then obliged to make inquiries involving the best interests of the child and, accordingly, the society could not unilaterally withdraw its status review application.

[53] In this case, although somewhat different language is employed – "court date" versus "hearing day" - in my view, it is a distinction without a difference.

[54] While neither the society nor "others" are obliged to bring a status review application following the making of a Crown wardship order, once the train is set in motion, it can only be stopped by the engineer, namely, the court.

[55] I disagree with the argument that merely because the present applicants were not statutorily mandated to bring their status review application, it was open for them to unilaterally terminate all court proceedings simply by filing a Form 12 and walking away from their application. While no one can prevent the applicants from refusing to participate in their own application, the initiation of the status review application set in motion a series of events directly involving the best interests of the four youngsters who are the subjects of the present status review application. And because of this, I agree entirely with Little J.'s holding that:

The court has a duty to proceed with the status review application because of the community interest in the welfare of children and to ensure that the best interests of the . . . children are served.

[56] Furthermore, in my view, the argument that filing a notice of withdrawal pursuant to rule 12(1) automatically terminates the status review application, does not apply. The CFSA is remedial legislation which is intended to promote certain purposes in the best interests, protection and well being of children. Specifically, section 1(1) of the CFSA provides:

Paramount purpose

1. (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

[57] As I noted earlier, and as Little J. held, once a status review application is commenced, the court is obliged to make inquiries in the "child's best interests".

[58] If a party were permitted to terminate the status review proceeding unilaterally, without any judicial oversight, it would be impossible to carry out the paramount purpose of the Act. And it is that paramount purpose which, in my view, is immediately engaged the moment a status review application is brought to the court – whether the status review application is mandated by the CFSA or is brought voluntarily pursuant to the CFSA.

[59] Accordingly, the Rules – and specifically in this case rule 12(1) - must be read in the context of the purpose that the CFSA intends to promote. And where there is a conflict between the statute and a particular rule, the statute must prevail. (See for example the comments of Justice Stanley B. Sherr in Children's Aid Society of Toronto v. A.T., 2010 ONCJ 456, at paragraph 12)

Should Leave Be Granted?

[60] OCL counsel for the child C.M. argued that if leave is required, the court should refuse leave to terminate the status review application. C.M. is 15 years old. He lives with a foster parent other than the applicants, with whom his sister B.M. continues to reside. B.M. who, as I previously noted is now 17 years old, is not exercising regular access to C.M., to C.M. apparent distress. Counsel for C.M. argues that the court needs to intervene to fix this problem, specifically by making orders which will ensure that access takes place. Counsel argues that if the status review application is terminated there will be no remedy for C.M.

[61] Unfortunately, the perpetuation of the present status review application will not provide a remedy for this particular problem. The applicants have chosen to no longer participate in this process, and the court cannot force the applicants to remain involved against their will.

[62] Even if the court could somehow compel the applicants to attend court, B.M. was past her 16th birthday when the status review application was commenced and, as such, she is beyond the court's jurisdiction to compel the making of an access order against her will.

[63] Should C.M. counsel believe otherwise, the termination of this status review application would not prevent C.M. counsel from initiating her own status review application pursuant to section 65.1(4)(a) of the CFSA.

[64] At the outset of the argument of this motion, the society filed an updating affidavit setting out certain facts which provide a sufficient evidentiary underpinning for the court to grant leave terminating the present status review application in the best interests of all four children.

Conclusion

[65] For the foregoing reasons, I conclude:

1. No party can terminate a status review application without leave of the court, even when there is no mandatory requirement to bring that status review application; and

2. On the facts of this case, leave ought to be granted.

[66] There will be an order terminating the within status review application.

[67] This was a case of first impression and I wish to thank all counsel for their organized and helpful submissions.

Justice Robert J. Spence

July 28, 2014