WARNING
The court hearing this matter directs that the following notice 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.
(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.
(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: November 30, 2015
Court File No.: Toronto CFO 13 10579
Between:
Children's Aid Society of Toronto, Applicant
— AND —
M.R. and A.A. Respondents
Before: Justice E. B. Murray
Reasons for Decision released on: November 30, 2015
Counsel
Ms. Donna Gray — counsel for the applicant society
Mr. Anthony Macri — counsel for the respondent mother
Mr. Marek Balinski — counsel for the respondent father
Decision
MURRAY, E. B. J.:
Introduction
[1] The Children's Aid Society of Toronto brings a summary judgment motion on a status review application asking that the child C., born […], 2008 be placed in the care of her grandparents, G. and M. R., pursuant to s. 57.1 of the Child and Family Services Act (CFSA). Mother opposes the motion.
[2] C. was apprehended from Mother's care in July 2013 when Mother was charged with two counts of assault against the child. With Mother's consent, C. was temporarily placed in her grandparents' care in November 2013 pursuant to Society supervision. The grandparents live in British Columbia. Mother lives in Toronto.
[3] Mother was subsequently convicted on the assault charges, and on November 4, 2014 C. was found to be a child in need of protection pursuant to S. 37(2)(a) of the Act.
[4] At the outset of the motion, Mother's lawyer questioned whether a court has the jurisdiction to make the order sought. I directed that this issue should be determined before the motion could proceed.
[5] I noted pleadings closed against Father as he had not filed an Answer, although duly served. Father's counsel did not participate in argument on the motion.
Jurisdictional Issue
[6] Mother's lawyer questions the court's authority to make an order under s. 57.1 of the CFSA with respect to a child who has lived outside Ontario for the past two years. His argument is as follows.
Mother's Jurisdictional Argument
- The court's jurisdiction to make an order under s. 57.1 of the CFSA is restricted by the jurisdictional limits under the Children's Law Reform Act (CLRA) because the CFSA provides that an order under s. 57.1 of the Act is "deemed to be made under section 28" of the CLRA. The relevant sections of both statutes are set out below.
S. 57.1 CFSA
57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and
(b) may give any directions that it may give under section 34 of that Act.
S. 22 of the CLRA
22.--(1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(a) the child is habitually resident in Ontario at the commencement of the application for the order;
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(i) that the child is physically present in Ontario at the commencement of the application for the order,
(ii) that substantial evidence concerning the best interests of the child is available in Ontario,
(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
(v) that the child has a real and substantial connection with Ontario, and
(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
(2) A child is habitually resident in the place where he or she resided,
(a) with both parents;
(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
(c) with a person other than a parent on a permanent basis for a significant period of time,
whichever last occurred.
Mother's counsel asserts that since a s. 57.1 order is "deemed" to be a CLRA order, then the order cannot be made unless there is jurisdiction pursuant to the test in s. 22 of the CLRA.
With respect to the s. 22(1)(a) test, counsel argues that C. was not "habitually resident" in Ontario at the date of "the commencement of the application", which he says is the date of the status review application, September 24, 2015. At that time, C. had been living in B.C. with her grandparents for almost two years.
Counsel submits further that the court has no basis to take jurisdiction pursuant to s. 22(1)(b) of the CLRA, for the following reasons:
- C. was not physically present in Ontario at the date of the status review application.
- The evidence most important on the current status review—evidence from experts and service providers and her grandparents with respect to C.'s mental and emotional health—is in B.C.
- There was a custody application begun by the grandparents in provincial court in B.C. (That application could not proceed because Mother would not give her consent.)
- The balance of convenience favours the case proceeding in B.C.
Society's Response
[7] The Society replies that an order under s. 57.1 of the CFSA is not an order under the CLRA, and a deeming provision does not make it so. Society counsel submits that there is no doubt that the court has the power to place a child outside Ontario if that placement is deemed to be in the child's best interests, and that courts routinely make such orders; it would be ridiculous to provide that the court lost jurisdiction as soon as such an order was made. Counsel says that Mother's interpretation of s. 57.1 would unduly restrict the placement options open to children, surely a result contrary to the purposes of the Act.
[8] Society counsel argues further that, even if Mother's counsel is correct in his submission, "the commencement of the application" referred to in s. 22 of the CLRA means the commencement of the initial protection application. C. was habitually resident in Ontario at that time.
Analysis
[9] I am not persuaded by Mother's argument with respect to jurisdiction.
[10] The authority for a court to make an order for custody under the CFSA is found in s. 57.1(1) of the Act, which makes no reference to the CLRA. I see no reason to think that the "deeming" subsection which follows at s. 57.1(2) diminishes or restricts that authority. I say this for the following reasons.
1. The Meaning and Purpose of "Deem"
Subsection 57.1(1) is followed by s. 57.1(2), which "deems" a 57.1(1) order to be made under the CLRA. What does "deem" mean? Canadian Legal Words and Phrases, in explaining the term, quotes the following observation in a judgment:
"Deemed" is commonly used for the purpose of creating a statutory fiction, that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate. When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced. This is often a convenient device for reducing the verbiage of an enactment.
What is the purpose of "deeming" a s. 57.1(1) order to be an order under the CLRA? The answer to that question lies in the purpose for the enactment of s. 57.1. The section was enacted in 2006 to provide a less intrusive disposition option for children who had been dealt with under the CFSA, but who now were placed with caregivers whom the court did not believe required the supervision of a society to ensure the child's safety and well-being. Prior to the enactment of s. 57.1, those caregivers were required to commence separate proceedings claiming custody. When a custody order was obtained, a Society would typically ask the court's leave to withdraw their application. Frequently, however, a child's caregivers were unable to institute proceedings in a timely matter (or sometimes, at all), with the result that a Society was needlessly involved with a family under supervision order.
The creation of this new animal, the CFSA custody order, triggered a need for a mechanism to control future dealings between the parties that would not require the participation of the Society. Drafters could have crafted further sections to 57.1, dealing with what provisions a custody order could include, with accompanying access orders, and with future variation applications. Instead they drafted s. 57.1(2), allowing the deeming provision to do the work.
There is no basis to argue that the use of a deeming provision in s. 57.1(2) somehow deprives the court of jurisdiction to make the initial custody order under s. 57.1(1).
2. Jurisdiction Under the CFSA
A court has the jurisdiction to make an order under s. 57.1(1) on the same basis that it does any other order for disposition after there has been a protection finding. There is no requirement set out that a child be "habitually" resident in Ontario at the time the order is made. It is sufficient that a child was physically present in the province at the commencement of the original protection application. Once an application is commenced, the Society is permitted to place a child outside the province. The court's jurisdiction to make orders respecting the child continues, although there are potential difficulties with enforcement. In the case of 57.1 orders made granting custody to parties living in another Canadian province, the custodial parent may register the 57.1 order in that province if the applicable legislation provides for enforcement of extra-provincial orders.
If the Legislature had intended that a 57.1 order could only be made if a child was habitually resident in the province at the time of the order, I would have expected that this provision—a departure from the law which otherwise applies to CFSA orders—would be explicitly stated. It was not.
3. Consistency with the Purposes of the CFSA
The interpretation argued for by Mother is contrary to the paramount purpose of the CFSA, to promote the best interests, protection and wellbeing of children. The Act directs a court to consider placement with family or community where possible, and to consider the least restrictive alternative for a child. The Act permits placement of children out of province on a supervision order and, with the Director's approval, as Society or Crown wards. If C. is to continue to be placed with her grandparents, the least restrictive alternative is clearly a simple custody order, an order that does not require continued state oversight. Under Mother's interpretation, that alternative is not open to the court—the only alternative is a supervision order.
Conclusion
[11] I find that the court does have jurisdiction to make the order requested by the Society pursuant to s. 57.1(1) of the Act.
Directions for Summary Judgment Motion
[12] Counsel shall contact the trial coordinator to arrange a hearing for the summary judgment motion. With respect to that motion, I direct as follows:
Society counsel shall prepare, serve and file a factum, setting out with specificity the facts relied upon and the location of those facts in the material filed (which currently totals 567 pages). Mother's counsel has filed a factum, but the factum makes no reference to facts relied upon in his argument. He shall amend his factum to set out the facts relied upon and the location of those facts in the material filed.
The Society's factum shall also address the issue of how proposed opinion evidence should be treated on a summary judgment motion. How can such opinions be relied upon to demonstrate that there is no issue of material fact requiring a trial?
Society counsel shall underline all hearsay passages in the affidavit material filed. With respect to any objections to the proposed hearsay evidence, counsel for both parties shall cooperate to prepare and file a chart in the form attached indicating the purpose for which the hearsay is offered, the legal basis for admission (other than by reference to Rule 16(5)), and the basis for the objection. If counsel does not have the chart in electronic form they should contact the judicial secretary.
Both parties shall file duplicates of all material for the motion.
Released: November 30, 2015
Signed: Justice E. B. Murray
Footnotes
[1] I do not set out 57.1(6), as it is not relevant to the issue before me.
[2] Apparently a case could be brought without Mother's consent in B.C. Supreme Court, but the grandparents have not taken that step.
[3] LexisNexis, quoting Cooper & Dysart v. Sargon, (1991) 4 ACSR 649
[4] As Justice Daudlin noted in Windsor-Essex Children's Aid Society v. C.C., (2000) O.J. 4991 (S.C.), "the pivotal element (of the CFSA) is child safety, not child safety for ordinary resident children in the territory".
[5] See Children's Aid Society of London and Middlesex v. F.E.C., (2001) O.J. 4613 (S.C.), re: supervision orders placing child outside Ontario. S. 61(4) of the Act recognizes that Society or Crown wards may be placed outside the province with the approval of the Director.