Court Information

Court File No.: FO-13-00000297-0000

Date: November 12, 2015

Ontario Court of Justice

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

And In the Matter of Children apparently in need of protection

Parties

Applicant: Brant Family and Children's Services

Respondents: M.M. and R.W.

Appearances

• B. Culp, Counsel for Brant Family and Children's Services
• E. Kiernan, Counsel for M.M.
• R.W., In Person
• T. Simpson, Counsel for Office of the Children's Lawyer

Before

The Honourable Justice K. Baker

Heard: November 12, 2015 at Brantford, Ontario

Reasons for Judgment

BAKER, J. (Orally):

This is a mid-trial motion by the respondent mother, M.M., to amend her pleadings to include a claim to place the child, X.W., born […], 2012, in the care of the maternal great aunt, P.R. Some background is required.

Background and History

The Society has been involved with this family for many years. The protection concerns have been primarily related to domestic violence between the father and the mother and substance abuse by both parties, including the mother's addiction to cocaine. The subject child, X.W., and his three siblings, O.D.W., born […], 2008, A.W.W., born […], 2009, and O.W., born […], 2011, were all removed from the parents' care on April 2nd, 2013, initially by way of protection services agreement. They were all then placed in kin care.

In August 2013 after an incident wherein the kin caregiver permitted the mother unauthorized access, the children were all apprehended. The ensuing protection application seeking Crown wardship without access for all four children has been before the court since August 16th, 2013. In her original answer and plan of care the respondent mother claimed access and placement of the three older children into the care and custody of various kin caregivers. For X.W., it was proposed that he be returned to the care of the mother subject to Society supervision, or in the alternative, that he be made a Society ward for six months with ongoing access to facilitate his return to the care of the mother. The proceeding with respect to the three older children was resolved by way of final order on consent dated January 7th, 2015. Orders were made finding all four children in need of protection and placing the three older children in separate kin placements. The child, A.W.W., was placed in the care of P.R. Some years earlier Ms. P.R. had also assumed custody of the mother's oldest child, T., who was not at any time the subject of this proceeding.

Trial Management and Procedural History

The proceeding with respect to the subject child continued and a trial management conference was held on February 7th, 2015. The primary issue for trial was identified at the trial management conference as whether the mother had been able to fully resolve her substance abuse issue. It was less clear that the issue for trial was whether the child should be returned to the mother's care, or made a ward of the Crown without access. No mention was made of any alternative kin placement claim. The matter was then placed on the ready list of April 7th, 2015 for the trial sittings of May 25th through 28th, 2015. It was estimated as requiring five days of trial based on the plan that was then being presented by the mother. The mother was also given leave to amend her pleadings by April 7th, 2015. At the ready list of April 7th, 2015 the matter was confirmed for the trial sittings of May 25th, 2015. The mother had not filed her amended answer by the ready list date and she was given an extension until April 15th, 2015 to do so. There was no mention of a potential kin plan at the attendance for the ready list.

The mother did, in fact, amend her pleadings as permitted by the order at the trial management conference on the subsequent order of extension for filing. Therein, she renewed her claim to have the child, X.W., returned to her care, or in the alternative for him to be a Society ward for six months. This latter claim, of course, was not available legally due to the time constraints set out at Section 70 of the Child and Family Services Act. There was no mention in the mother's answer and plan of care of any plan whereby Ms. P.R. or anyone else would care for the child.

The matter was not reached during the sittings of May 25th through 28th, 2015. It commenced on September 18th, 2015 and was then adjourned to resume on the trial sittings beginning November 9th, 2015. There were four days available in the sittings in November 2015. Based on the estimate of time required at the trial management conference, as well as ongoing discussions during the first three days of trial, it appeared that the matter would be quite likely to be concluded during the November trial sittings.

The Motion

The Society concluded its case on Tuesday, November 10th, 2015. The mother then opened her case. In her evidence in-chief, she mentioned that P.R. could be a kin caregiver for X.W. She identified Ms. P.R. as her maternal aunt and said that her aunt had care of her older children, T. and A.W.W. Other than that, she did not provide details with respect to this kin plan. Mother was not cross-examined on this plan presumably because it was not before the court as an advanced claim.

X.W.'s foster mother, C.P., was called to testify between the mother's evidence in-chief and her cross-examination, as a matter of accommodation for Ms. C.P. Ms. C.P. was not asked about any possible knowledge in relation to an alternative plan of care to be advanced by Ms. P.R.

At the conclusion of the entirety of the mother's evidence I mentioned to her counsel, Mr. Kiernan, that although the mother had mentioned this potential plan by Ms. P.R., that claim was not, in fact, before the court and, therefore, was not open for adjudication. At that point an oral motion was brought by Mr. Kiernan to permit the mother to amend her pleadings to include this claim. That motion was opposed by the Society. The OCL presented an equivocal position about the oral motion, but ultimately seemed to oppose it. I required that Mr. Kiernan provide a formal written motion with evidence for this request. That was provided today, Thursday, November 12th, 2015, at the outset of the resumption of the hearing. The Society also provided material in this regard including some case law. The OCL did not provide material. As of today the OCL is now supporting the motion to permit the amendment of the mother's pleadings.

Legal Framework for Amendments

Rule 11 of the Family Law Rules governs amendments to pleadings. Rule 11(2.1) is specific to child protection proceedings and allows amendment where there has been a, "significant change relating to the child" which happens after the original document was filed.

At the outset, Mr. Kiernan conceded that this sub-rule does not apply given the very specific order for amendment of the mother's pleadings. I agree that it does not apply, both for that reason and because this is not, in my view, a situation where there has been a, "significant change relating to the child." Nothing has changed in relation to the child other than a family member having a change of heart about offering a plan. I do not think that sub-rule 2.1 was enacted in order to deal with that situation.

Rule 11(3) deals with the amendment of pleadings where the court's permission is required, as here. It provides that:

On motion the court shall give permission to a party to amend an application, answer or motion unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

The rule is mandatory absent prejudice or disadvantage that cannot be compensated by either an award of costs, an adjournment, or both.

This rule was considered by the Honourable Justice Quinn in the case of Stefureak v. Chambers. Therein the court noted that:

It matters not whether the amendment is prompted by a change in the case, or is merely an afterthought. Either may warrant an amendment so long as Rule 11(3) is satisfied. The mere fact that the amendment comes as a surprise to the other party does not preclude the amendment if it can be compensated for by an award of costs, an adjournment, or both.

One of the considerations adopted by Justice Quinn was the length and expense of trial. In that case the court found that an amendment would not add to the expense or length of the trial. The amendment was accordingly granted. The reason for that finding was because the amendment would not have affected the way in which the mother presented her case. Also the witnesses scheduled to testify for the father in pursuit of the claim for sole custody would have been called in any event as it was a claim for joint custody.

Application of Legal Principles

The Society relied on the decision of Justice Pazaratz in Mio v. Mio, 2014 O.J. No. 1647 in support of its position that the amendment should not be granted. This was a situation in which the parties were posed to embark on a trial on issues primarily related to the children. At the purge court immediately prior to the trial week on which the case had been placed, the respondent sought to amend her claim to include a retrospective child support claim. Justice Pazaratz considered the decision in Stefureak and accepted it as an accurate statement of the law. In Mio, as in the instant case, the party seeking the amendment did not ask for an adjournment, but did not oppose an adjournment if requested by the applicant. As here, for reasons which I will expound upon in due course, it was clear that, if the amendment was to be granted, an adjournment would be necessary. Like this case, factual considerations would have arisen as a result of the new claim sought by the amendment and as in this case the party seeking the amendment was not actually offering to pay any costs. Ultimately Justice Pazaratz concluded as follows:

Rule 11(3) is an important rule, but it is not the only rule.

(a) The primary object of the rules is to enable the court to deal with cases justly, Rule 2(2).

(b) The court must ensure procedural fairness to all parties, time and expense should be reduced.

(c) The parties and their lawyers are required to help the court promote the primary objective, Rule 2(4). Courts generally take a flexible and forgiving approach to amending pleadings. But in an era of heightened concern about the cost, duration and emotional drain of family litigation, we cannot allow Rule 11(3) to relieve litigants of their fundamental obligation to pursue their claims in a diligent and efficient manner. The reason why the respondent waited so long may not matter, but the consequences of a delay matter a great deal.

The principle upon which motions to amend pleadings are granted was considered in a much earlier case by Justice Dunbar of the Ontario Court of Justice in Marshall v. Marshall, 1997 O.J. No. 6530. The principles were set out as follows:

1. Unless the opposite party will suffer an injustice, the amendment should be allowed.

2. The proposed amendment must be prima facie meritorious.

3. The proposed amendment should be a pleading permissible in the first instance and, therefore, be subject to the strictures of the rules.

4. The proposed amendment must contain sufficient particulars.

The decision in Marshall is not, of course, binding upon me as it's a decision of this level of court. I also note that it predates the current rule with respect to amendment of pleadings. It is, however, helpful insofar as it mandates scrutiny of the merits of an additional claim that the moving party seeks to advance through the amendment.

Child Protection Context

This is a child protection case. It is, therefore, somewhat distinct from the cases that have been put before me. In determining this motion, I also have to have regard for the paramount purpose of the legislation, which is to further the best interests, protection and wellbeing of children. I have to consider the effect on the child of delay in the disposition of the case.

This child was born on […], 2012. He remained in hospital for the first two weeks of his life because he was born addicted to methadone as a result of prenatal exposure to that, as well as apparently to opiates and marijuana. He was released from hospital on December 7th, 2012 at which time he was cared for by his parents until April 2nd, 2013. He thus was in the care of his parents for only four months. He was then placed with kin caregivers through a protection agreement between the Society and the parents. He remained there until August 2013 at which time he was apprehended and placed in care. It is uncontroverted from the trial evidence so far that he did not do well in his first foster home. He was not properly gaining weight and he was head banging. He has been in the care of his current foster parents since December 2013 when he was just one-year old. He's doing well there, but those foster parents are not putting forward a plan to adopt X.W. in the event that he becomes available through an order for Crown wardship without access. If he is made a ward of the Crown, X.W. will be placed in another home for adoption.

The so far uncontroverted evidence from trial is that X.W. does not do well with change. Each day that goes by will undoubtedly see the bond between X.W. and his current caregivers develop and strengthen. The expert evidence heard so far in this trial is that, as a result of his early life experiences, X.W. is vulnerable on all domains, including social, behavioural, cognitive and other areas of functioning.

Consequences of Granting the Amendment

If this amendment is to be granted, an adjournment will be necessary. This is true for several reasons: First, the Society had closed its case at a time when the only plan being advanced by the mother was for the mother to care for this child, and accordingly it did not adduce any evidence about this new plan that would be proposed through the amendment. Obviously, the Society would need an opportunity to adduce evidence about the proposed plan. This would essentially require a reset of the trial such that the Society would have to reopen its case to adduce evidence about the new plan. The mother would then have to retake the stand to provide some evidence about her part in the plan because she didn't address this during her evidence. What she did say is that she had extensive access to the children who are in Ms. P.R.'s care and that she did so at a time that was reasonably proximate to a time when the mother had sustained a relapse in her addiction. Her plan with respect to time with the subject child, should the subject child be placed in Ms. P.R.'s care, would obviously be relevant to an adjudication. But even before the Society could reopen its case to address this new plan, it would have to undertake some investigation about it. The mother says this would be relatively easy because the proposed caregiver is well known to the Society. This is because the proposed caregiver is currently on the roster as a foster placement and she's caring for the other two children of the mother under custody orders.

I don't see it as being quite as straightforward as has been argued. First, Ms. P.R. is a 65-year old widow with three children in her care, ages, 15, 5 and 3. She's complained of health issues and suggested that these limit her mobility to some degree. Two of the children already in her care would seem to have some significant needs. The evidence from this trial so far is that there's sometimes sibling conflict between the subject child and his sibs, including A.W.W., the child in Ms. P.R.'s care. It's also not so simple to say it's only an issue of adding another child to the mix. Inevitably there would have to be an investigation of Ms. P.R.'s health. One would think that information from her physician would be required. Both A.W.W., the child already in Ms. P.R.'s care, and the subject child have already been found by the CAAP team at McMaster Children's Hospital to have been adversely affected by maltreatment whilst in their parents' care. Recommendations are made for special services for both. Ms. P.R.'s ability to meet those needs would require careful consideration and investigation.

This is not, in my view, an investigation that could be undertaken in a few days, or potentially, given the need to obtain information from third parties, even a few weeks. It would take time. The next available dates for resumption of this trial, assuming it would be ready to go then, is the week of January 18th, 2016. Even supposing that the investigation could be completed and the parties could be ready for resumption of trial in two months' time, there are additional matters that require consideration. First, two months is not an insignificant period of time. It must not be forgotten that the mother still has her own plan to care for the child before the court. It's not inconceivable with the elapse of further time, she or the Society may wish to present more evidence about what's transpired in the interim. This, of course, carries the potential of further prolongation of the trial. I have a duty under Rule 2 to manage cases justly. In doing so, I must consider the need to apportion judicial resources, taking into consideration the complexity and significance of the litigants' issue in the case, but also the need to apportion resources to other litigants and other cases. If this case is permitted to extend into January with the potential complications that may arise, that means other cases, including possibly child protection cases, will not be reached.

X.W. will be three years of age in 10 days. He's been in temporary placements for all but the first four months of his life. The legislation emphasizes the importance of securing permanency for children. A dominant theme running throughout the case law is the importance of avoiding legal limbo for children. Granting the amendment will inescapably result in adjournment. The entire trial would have to be revamped to permit evidence from both the Society and the mother. Additional witnesses never previously contemplated, being at least Ms. P.R., would be required. The trial would definitely be prolonged due to the new issues and witnesses.

There has been absolutely no trial management with respect to this new plan. Accordingly, there's been no consideration of whether, for example, there's documentary evidence that would be required. There's been no witness lists advanced with respect to confirm what other witnesses might be required. It's, therefore, impossible to estimate the trial time that would be required to address this new issue. As a result, it is unknown whether this trial, in fact, could be completed during the January sittings should it be adjourned. If not, it would have to be adjourned further with the next sittings thereafter being the week of March 14th, 2016.

Merits of the Proposed Plan

What are the merits of the new plan? X.W.'s going to be three. The proposed caregiver is 65. She would be 80 when X.W. is 18. The proposed caregiver has three other children in her care, two of whom are five and three respectively. One of those children, being the subject child's sib, like the subject child, has very special needs. There is no evidence to support the proposed caregiver is meeting the needs of the child who's already in her care with respect to the trauma counselling that has been recommended by CAAP. There is some evidence to suggest that she may have demonstrated what could be seen as poor judgment in relation to allowing substantial access between the mother and the five-year old sibling in her care such that the Society had to intervene and counsel her. It's true there is some evidence of potential merit. This lady's been approved by the Society to care for the siblings and the court apparently accepted her as a custodian of a third child, being the three-year old. Placement with this person would provide the benefit of a placement of the three sibs in the same home.

But I note there is little evidence with respect to the degree of contact that has taken place between the subject child and the proposed caregiver to-date. The proposed caregiver has deposed in her affidavit that she has had, "contact" with the subject child when she brings his sib to visits with the mother. She says that it's obvious that X.W., "recognizes" her. She does not say anything about how long that contact is. There is no indication of a relationship having been developed between the subject child and the proposed caregiver such that any bond would have been formed.

The timelines prescribed by the legislation for determination of a placement have long passed. The only option is Crown wardship, or immediate placement with either the mother, or if the amendment is granted, with the proposed caregiver. The uncontroverted evidence in this trial to-date is that the child doesn't do well with transitions. How could a court conclude that immediate placement with a kin caregiver who sees the child in passing when dropping off a sib for access visits, and whom the child, "recognizes", would be in the child's best interests?

Conclusion

This child, like too many children in child protection proceedings, has been left in legal limbo long enough. There is a substantial prejudice to the child who is at the heart of this proceeding if the matter is simply adjourned over and trial effectively restarted with a new set of issues. Doing so would significantly increase the cost to the parties, in particular the Children's Aid Society. The mother makes no offer to contribute to those costs and presumably, given that she's in receipt of social assistance, she would argue impecuniosity if the subject was raised. To the extent that this trial is allowed to morph into an entirely different inquiry and subsume potentially significant other judicial resources, other litigants and other cases, including child protection cases, will be deprived of those resources.

I agree with the statements of Justice Pazaratz as set out in Mio. Litigants are required to act with some diligence and efficiency in advancing their claims. It's generally not going to be in the public interest to allow litigants to hijack the trial process mid-trial thus requiring the allocation of significant additional resources. Trials could potentially be never-ending if a parent could take the stand and simply mention the name of a proposed alternate caregiver and thus secure an adjournment and a consequent delay of the disposition. This does not further the best interests, wellbeing and protection of children generally. More specifically, it's not in the best interests of this child and would result in a prejudice to him that could not be compensated by either adjournment or costs.

The motion is accordingly denied.

...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Chris Lefebvre certify that this document is a true and accurate transcript of the recording of Brant Family and Children's Services v. M.M. and R.W., held at the Ontario Court of Justice, 44 Queen Street, Brantford, Ontario taken from Recording No. 0211-5-20151112-093453 which has been certified in Form 1.

Date (Signature of authorized persons)

This certification does not apply to the Ruling, which was judicially edited.

Transcript Ordered: November 12, 2015

Transcript Completed: December 9, 2015

Ordering Party Notified: December 10, 2015

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT