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 45(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

Ontario Court of Justice

Date: April 30, 2015

Court File No.: Halton 130/15

Between:

The Children's Aid Society, Region of Halton Applicant

— And —

D.R. and S.C. Respondents

Before: Justice V. Starr

In chambers endorsement

Reasons for Judgment released on: April 30, 2015

Counsel:

• Diane Skrow, counsel for the applicant
• Anthony Macri, counsel for the respondent, D.R.
• S.C., on his own behalf

STARR J.:

NATURE OF MOTION

[1] This is the Court's decision with respect to the request of the Society, made in writing by way of 14B motion form, for an order dispensing with service upon the respondent father, S.C., of the following documents:

a) Early Status Review Application, dated November 5, 2012, and all supporting documentation;

b) Amended Early Status Review Application, dated December 13, 2013, and all supporting documentation;

c) Fresh as Amended Amended Early Status Review Application, dated February 4, 2015, and supporting documentation; and,

d) All further Court documentation in regard to the child protection proceedings involving the respondent mother, D.R., and the child, L.S.P.R.

THE RESPONDENTS AND THE CHILD

[2] The child in this case is L.S.P.R., born in 2009. He is 6 years old and resides with his natural mother, the respondent, D.R. The respondent S.C. is L.S.P.R.'s natural father.

POSITION OF THE SOCIETY

[3] It is the society's position that it is in the best interests of the child that the Court make an order dispensing with service upon the respondent father, of the foregoing documents. It is not explicitly submitted, but from the materials I presume the submission is that such an order is in the child's best interests because service could lead to the father having contact with the child or the child's mother, and that if this occurs, the emotional and physical safety of both would be at grave risk, and such contact could undermine the mother's progress and efforts to address the protection concerns.

THE EVIDENCE

The Protection Concerns and Risk Posed by the Father

[4] The evidence details an extensive history of domestic violence between the mother and father, which has led to the father being incarcerated.

[5] The evidence also details the mother's lengthy struggle with substance abuse (before and following L.S.P.R.'s birth); the steps she has taken in an attempt to maintain her sobriety; her mental health struggles (including bulimia); and illegal activities including theft from retail stores while L.S.P.R. was present.

[6] There is also evidence regarding additional protection concerns regarding the father including that:

a) he is on the Child Abuse Registry;

b) he masturbated in front of L.S.P.R. while L.S.P.R. was watching Sesame Street;

c) he abandoned L.S.P.R. when he was three years of age, as he was fearful of police arresting him;

d) he attacked L.S.P.R. during the course of attacking his mother; and

e) he perpetrated extensive domestic violence and assault against L.S.P.R. and other women in addition to the mother.

[7] The father was incarcerated for several years starting in or about September 2001, as a result of an incident wherein he was found guilty of aggravated assault of a three-year-old child [D L] by the Supreme Court of British Columbia. The Reasons for Judgment of The Honorable Madam Justice H. Holmes, dated July 19, 2002, detail among other things that:

a) at the time of the father's aggravated assault of D L, he was on probation for having been convicted of a previous assault of D L;

b) the father's assault of D L resulted in serious injuries, including brain and abdominal injuries; and

c) there was a delay of 2 to 3 days in obtaining medical treatment for D L.

[8] Following the father being found guilty of aggravated assault, he was sentenced to four years of imprisonment, in addition to the year of pretrial time that he spent in custody. The sentence was appealed by the father and upheld by the Court of Appeal for British Columbia. A copy of the Court of Appeal's decision, dated July 15, 2003, was provided. In this decision the Court notes that the father was subjected to psychological examination prior to his sentencing and that the report that was issued contained a diagnosis of drug abuse and antisocial personality disorder. The report concludes that the father would continue to pose a very high risk of future violence suggesting the need for intensive treatment such as the Intensive Violent Offenders Program that is available through the federal penitentiary system.

Litigation History

[9] With respect to the child protection proceedings that were before the Court in Toronto, the evidence is that:

a) S.C. was served personally with the original child protection application on March 17, 2012;

b) S.C. never appeared in Court during the proceeding; and S.C. was noted in default by The Honorable Madam Justice H. Katarynych on September 7, 2012.

c) L.S.P.R. was found to be a child in need of protection on September 7, 2012 as was the final order that he be placed in the care and custody of his mother subject to the supervision of the Toronto Children's Aid Society for a period of six months, and subject to several terms and conditions. Justice Katarynych also ordered on that date that D.R. will not have any contact whatsoever with S.C. and will not permit S.C. to have any contact with L.S.P.R. unless the Court makes an order granting him access; and,

d) there shall be no access between S.C. and L.S.P.R. without further order of the Court;

e) Justice Katarynych's handwritten endorsement of that date indicates that her intention was that the order would be prepared in a manner that segregates the access [child and father] terms from the main order, and the father is to be served with the access order only; and that there is to be no service on the father of the Status Review Application before its first appearance.

Current Whereabouts of the Father

[10] The evidence of Ms. Skrow is that the father's current whereabouts are unknown to the Society. They believe that he was recently released from jail and now resides in a halfway house in Hamilton. This belief is based upon a conversation that the child protection worker had with the father's federal parole officer in May 2014. At that time, the parole officer reported the father was granted a request to move to reside in a halfway house in Hamilton. His probation order was reduced from three years to 18 months. His federal parole officer also advised the worker that the father's attitude had not changed following his release from jail and that the father has not shown or displayed remorse for his actions.

[11] There is no information before the Court regarding whether or not the father has completed the intensive treatment that he required in order to mitigate the very high risk of future violence on his part.

[12] The evidence of the child protection worker is that she spoke to the mother and a safety plan is in place. Further the mother and the child have reported that they have not been in contact with the father. The mother reported to the worker that the situation does cause her stress.

[13] There is no evidence whatsoever that the Society has made any recent attempts to locate the father or to locate an address for service. Certainly, based on the evidence before the Court, it is likely that the parole or probation officer have an address for service for the father.

THE LAW AND ANALYSIS

Dispensing with Service

[14] To ascertain when a Court may dispense with service of documents on a party, it is necessary to turn to the Family Law Rules O. Reg. 114/99 (the "Rules"). Sub rule 1(2) states:

These rules apply to all family law cases in the Family Court of the Superior Court of Justice and in the Ontario Court of Justice, whether started before, on or after the day when these rules take effect,

2. under,

3. ...

(i) Parts III, VI and VII of the Child and Family Services Act,

[15] Sub rule 6(16) sets out the circumstances in which service of documents may be "dispensed with:

The Court may, on motion without notice, order that service is not required if,

a) reasonable efforts to locate the person to be served have not been or would not be successful; and

b) There is no method of substituted service that could reasonably be expected to bring the document to the person's attention.

[16] This sub rule contemplates only two situations in which the Court can dispense with service on a party: when a party cannot be located and no form of substituted service would bring the documents to that party's attention. In this case, there is no evidence upon which the Court could find that the father cannot be located and that no form of substituted service would bring the documents to his attention.

[17] As Rule 16(6) does not provide the Court with jurisdiction to dispense with service on the basis that service would not be in a child's best interests, it is necessary to look elsewhere for that jurisdiction. The Society submits that the legal authority for the relief it seeks is found in Rule 2(2), 2(3)(c) and 2(4) of the Family Law Rules. That is, that the Court derives its jurisdiction to dispense with service if doing so would amount to dealing with the case unjustly and unfairly.

[18] Spence J. dealt with the issue of whether rule 2(2) can be interpreted so broadly as to permit a Court to dispense with service on a party under circumstances other than those described in sub rule 6(16) in Children's Aid Society of Toronto v. L.O. and M.O., as did S.S. Bondy, J. in the case of Windsor-Essex Children's Aid Society v. R.L. and L., 2012 ONCJ 325. Both Justices concluded that it cannot. At paragraph 19 of his decision Spence J. states:

[19] It is clear, that the purpose underlying the sub rule that allows a Court to dispense with service is to permit a case to move forward when a party cannot be located and no form of substituted service would bring the documents to that party's attention. The Court's jurisdiction to dispense with service is limited in scope by the wording of the sub rule. Although sub rule 2(2) states that the "primary objective" of the rules "is to enable the Court to deal with cases justly" it is difficult to conceive how sub rule 2(2) can be interpreted so broadly as to permit a Court to change the substantive meaning of sub rule 6(16) by expanding the circumstances in which a Court may dispense with service on a party. To interpret the sub rule in such a manner would effectively add an entirely new meaning to sub rule 6(16), a meaning that the sub rule did not intend.

I concur with this reasoning and find that the Court does not have jurisdiction under sub rule 2 to dispense with service in any circumstances other than those set out in sub rule 6(16), even though requiring service may be unfair, unjust, and contrary to the best interests of the child.

[20] I have not addressed rule 2(3)(c) and 2(4) as they are sub rules that either offer guidance in complying with and implementing the primary objective, and as such, the same reasoning applies to them.

Alternate Approaches

[21] The evidence raises great concern that providing the father with notice and documents containing information about the child and the mother will place the child and his mother at significant risk of harm. Such a result is clearly not in the best interests of this child. Given the level of risk and potential harm I considered alternate approaches to dispensing with service. From my review of the jurisprudence there are at least three other ways that my sisters and brothers have approached the problem of protecting children and providing notice to and allowing a dangerous party to deal with the issue.

[22] First there is the approach that Curtis J. comments upon in obiter in the Children's Aid Society of Toronto v. L.G., D.H. and P.G., 2012 ONCJ 800 decision. This approach calls for the Court to make an order, in advance of the commencement of an application, that a parent shall not be a party to the proceedings. The jurisdiction for such an order could possibly be found in the phrase "unless the Court orders otherwise"..." in Rule 7(4). At paragraph 45 of the decision, Curtis J. states:

45 ... It would be possible to rely on the R. 7(4) provision "unless the Court orders otherwise" to do so…,

[23] Sub rule 7(4) of the Family Law Rules, reads as follows:

PARTIES IN CASES INVOLVING CHILDREN

(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child and Family Services Act, shall be named as a party, unless the Court orders otherwise:

1. A case about custody of or access to a child.
2. A child protection case.
3. A secure treatment case (Part VI of the Child and Family Services Act).

(my emphasis added)

[24] Relying upon this language and upon the paramount purpose of the CFSA set out in subsection 1(1), an argument can be made that where there are compelling reasons, such as the protection a child from genuine and significant risk of harm, the Court should protect the child by "ordering otherwise". That is, by ordering that the parent need not be named as a party to the proceeding. As Curtis J. points out however, there appears to be little case law finding this, and none of it binding authority. In any event, I find that this approach cannot be taken in this case as the proceedings were started long ago and the father is already a party.

[25] I next considered whether I have any jurisdiction under the Child and Family Services Act, R.S.O. 1990, c. C-11, to, in effect dispense with service, by finding that the father is no longer a parent as that term is defined under the CFSA and then removing him as a party. This is the approach taken by Spence J. in Children's Aid Society of Toronto v. O. (L.). In that case, Spence J. faced a similar situation to the one this Court faces in that he wished to protect the child from a parent who was a party but whom he found was an actively harmful participant (harmful to the child). In that case he found that the father was no longer a parent and removed him as a party, thereby eliminating his automatic right as a parent to further notice and to participate in the proceedings.

[26] His analysis begins with subsection 39(1) of the Act which states:

39.-(1) The following are parties to a proceeding under this Part [that is, Part III, which deals with child protection proceedings]

3. The child's parent.

[27] Justice Spence's reasoning is set out at paragraphs 21 to 31 of the decision and is as follows:

a) The language of subsection 39(1) appears to be mandatory and thus, there is no discretion in the Court to order that a parent be excluded as a party to the proceeding;

b) That language conflicts with the language of subsection 1(1), the "paramount purpose" provision.

c) The conflict is resolved if the Court finds that the facts of a case warrant a finding that it is contrary to the child's "best interests, protection and wellbeing" that one of his parents be a party to these proceedings.

d) Where a compelling or an overwhelming argument can be made, as in that case, that were the father permitted to be a party to this proceeding, it could well lead to contact between the child and that such contact could have a very harmful impact on the child, it is open for the Court to conclude that any contact by the parent, whether with the child or with his other parent, could have a detrimental impact on the child's wellbeing.

e) The Act is remedial legislation. Its purpose is to ensure that children are protected from harm. Therefore, a Court cannot judicially sanction any process that would expose a child to a genuine risk of harm by proceeding in a manner that is otherwise provided for by the Act. If indeed the paramount purpose of the Act is the protection of children from that genuine risk of harm, then everything else in the legislation must be interpreted by the Court, and acted upon, in such a manner so as not to subvert that paramount purpose. The effect of section 1 prohibits the Court from taking any inappropriate risks with a child's wellbeing.

[28] In arriving at his decision Spence J. found that he was aided by the wording of sub rule 7(3), which states:

7. Persons who must be named as parties

(3) A person starting a case shall name,

b) as a respondent,

ii) every other person who should be a party to enable the court to decide all the issues in the case.

[29] At paragraphs 30 and 31 he concludes:

[30] The father has, by his own actions, long ago relinquished his role as parent to M.O. He has not seen M.O. for more than 6 ½ years. When he did spend time with M.O., it appeared that his most significant contribution to his son was the trauma and abuse that he inflicted upon him. Nor has the father voluntarily complied with his Court ordered obligation to pay child support to Ms. L.O. Regrettably, this father's sole legacy to his young son is the fear, distress and anxiety that now prominently reside in M.O.'s psyche.

[31] In the face of these facts, how can I possibly conclude that naming the father as a party is necessary "to enable [me] to decide all the issues in the case?" Quite simply, there is nothing that the father could add to the evidence already presented that would assist me in deciding the two issues in the substantive child protection litigation, namely, whether M.O. is a child in need of protection and, if so, what is in his best interests.

This approach was also adopted by Little J. in Kenora-Patricia Child and Family Services v. Jessie Susan M..

There are two key differences between the facts in Children's Aid Society of Toronto v. O. (L.), supra, and this case. First, in that case the father was found to be an actively harmful participant. In this case there is no evidence to suggest that the father is active in anything. Second, Spence J. was in a position to find that there was nothing that the father could add to the evidence already presented that would assist him in deciding the two issues in the substantive child protection litigation. I am not similarly situated. I have no current information about the father. It is possible that if he is given an opportunity to be heard, I might reach a different conclusion about the current level of risk he poses to the safety of the mother and the child. It is possible that as well, that I might find that he has information that could help me decide the substantive issues.

[32] Aside from the problems that I have identified with each of the foregoing approaches, there is a far more significant one and it is well articulated by Bondy J. in her decision in the case of Windsor-Essex Children's Aid Society v. R.L., supra. In that case Bondy, J. found that there is no jurisdiction under the C.F.S.A, the Family Law Rules, or at common law to exclude a parent as a party (and hence avoid the necessity for service). In her view, each of the foregoing approaches must be rejected because failing to provide notice would violate the father's fundamental right to notice and to be heard and would deprive the Court of a fulsome review of the evidence to determine this child's best interests. She sets out how she arrived at this conclusion at paragraph 43 of the decision where she states:

[43] Not only am I bound by the Supreme Court of Canada decision relating to notice, child protection, fundamental fairness and section 7 of the Charter rights, but I agree with the findings of Justice Clifford S. Nelson found in Children and Family Services for York Region v. E.T.. I prefer Justice Nelson's reasoning. I am likely bound by his findings and frankly I completely concur with his analysis.

[33] I concur with Bondy J.'s analysis. I make the same finding in this case for the same reasons as Bondy J. and for the same reason that Curtis J. identifies in Children's Aid Society of Toronto v. L.G., D.H. and P.G., supra, as the problem with these cases: they intermingle the issue of party status and the question of service or notice. Party status and service are issues which are discrete and separate, and for which there are different tests. Further, in my view, if the legislature had intended for the right of a person to notice to be eliminated in situations where providing notice would put a child at grave risk of harm, a clear mechanism to dispense with service is such case would have been provided for in the CFSA. Part III of CFSA is designed and primarily devoted to protecting children from harm by their parents and others who care for them. I cannot imagine that Parliament would have overlooked the need to protect children in such circumstances by leaving such protection out of the legislation unless it was intentional.

[34] Accordingly, I find that the father is entitled to notice under clause 37(1)(b) of the CFSA. Not providing notice would violate his fundamental right to notice and to be heard and, although perhaps unlikely in this case, could deprive this Court of a fulsome review of the evidence to determine this child's best interests. The father is to be given notice and served with all of the materials.

[35] As I have noted, I am keenly aware that this decision may place the mother and child at great risk of harm. Once he is served the father will know, for example, where L.S.P.R. resides, goes to school, and where he attends for services. He could make contact with L.S.P.R. or his mother - whether as a direct consequence of the litigation or as a result of possible subterfuge by the father. As important as it is to ensure that the father's fundamental rights are not trampled on, it is equally important to protect L.S.P.R. and his mother from the risk of harm that will flow from this Court's decision.

[36] There is one final approach revealed in the jurisprudence and in my view, it strikes a balance between the need to protect the child and mother and the requirement that the father be given notice. This approach is similar to that taken by Bondy J. in Windsor-Essex Children's Aid Society v. R.L., supra. The approach is to put safeguards in place at least until the Court is in a position to assess the level of risk and whether the father's participation in the case will assist the Court in deciding the issues. The order below includes such safeguards.

ORDER

[37] For these reasons this Court orders:

1. The Society shall serve the Respondent father, S.C., by way of special service the following documents:

a) Early Status Review Application, dated November 5, 2012, and all supporting documentation;

b) Amended Early Status Review Application, dated December 13, 2013, and all supporting documentation;

c) Fresh as Amended Amended Early Status Review Application dated February 4, 2015, and supporting documentation; and,

d) A copy of this Decision;

e) Pending further order of this court, all further Court documentation in regard to the child protection proceedings involving the respondent mother, D.R., and the child, L.S.P.R.

2. Prior to serving any of the foregoing documents the Society is to ensure that any personal identification information about the mother or child is blacked out of the copy of the documents to be served on the father;

3. Court staff is directed not to permit the Respondent father or anyone on his behalf including any counsel he retains, access to the court file. Any materials he wishes to file are to be placed in the Continuing Record by court staff;

4. I hereby set the date of June 15, 2015, in courtroom #3, at 3:00 p.m. for S.C. to appear.

5. There shall be no necessity for the mother or child to appear on June 15th, and I hereby direct that they not do so. If the mother wishes to participate she may do so by way of teleconference. In such an event, the Society shall assist the mother in making the appropriate arrangements by contacting the Judicial Secretary, Pam Jazvac.

Released: April 30, 2015

Signed: Justice Victoria Starr