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,

[1] . . .

[2] (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 File and Parties

Court File No.: C82124/15 Date: 2016-05-06

ONTARIO COURT OF JUSTICE

BETWEEN:

JEWISH FAMILY AND CHILD SERVICE OF GREATER TORONTO

Sara Westreich, for the APPLICANT

APPLICANT

- and -

K.B. and S.J.B.

Jason Gottlieb, for the RESPONDENT, K.B.

RESPONDENTS

The Respondent, S.J.B., not appearing

Heard: May 5, 2016

Justice: S.B. Sherr

ENDORSEMENT

Part One - Introduction

[1] The applicant (the society) has brought a motion to dispense with service of the documents pertaining to this protection application on the biological father (R.G.) of the two children (the children), who are the subjects of this case.

[2] The children are presently placed with the respondent, K.B. (the mother) subject to a temporary supervision order. The mother supports the society's motion.

[3] The respondent, S.J.B., is the children's uncle. He is not participating in this case and has been noted in default.

[4] I advised the parties in court on May 5, 2016 that I wouldn't make the requested order dispensing with service of the documents pertaining to the protection application on R.G., but I would grant an order for substituted service of these documents on R.G. through his Facebook account. I reserved the decision to determine the wording for the notice that would be posted on this account.

Part Two – The Facts Relating to Service

[5] The mother advised the society on March 5, 2016 that R.G. was the children's biological father.

[6] The society located someone with the same name as R.G. on Facebook. R.G.'s name is not a common one. This person had photographs of the children on his Facebook profile. The court is satisfied that this person is the same person identified by the mother as R.G.

[7] The society worker sent a Friend request to R.G. by Facebook on March 15, 2016. R.G. did not respond to this request.

[8] The society worker sent another message to R.G. on March 28, 2016 stating that she was contacting him regarding a client who was a relative of his. She asked him to contact her and provided him with a phone number.

[9] R.G. answered this message by Facebook, asking, "Hey, who sent u".

[10] The worker responded by Facebook that she works for an Agency that assists families. She asked R.G. if he has children living in Toronto and told him that she is unable to provide him with more information until it is confirmed that he is connected to the children.

[11] R.G. responded by Facebook, "No one told me about u or the agency".

[12] The worker asked R.G. to confirm whether he had children living in the City of Toronto.

[13] R.G. replied by Facebook on March 30, 2016, "I don't have. Thanks".

Part Three - Analysis

[14] Subrule 16(6) of the Family Law Rules (the rules) sets out the criteria for dispensing with service of documents. It reads as follows:

SERVICE NOT REQUIRED

6(16) 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.

[15] Courts should not lightly grant orders dispensing with service on a parent, particularly in child protection cases. This is the case, even if the parent has had little involvement with the child or might be a risk if served. It is a fundamental principle of natural justice that a parent be provided with both procedural and substantive protection. See: Windsor Children's Aid Society of Toronto v. R.L., 2012 ONCJ 325; Children and Family Services for York Region v. E.T.; Halton Children's Aid Society v. D.R., 2015 ONCJ 314, per Justice V.A. Starr. If service is dispensed with, it robs a child of a potential family relationship, even if that potential is small.

[16] The court finds that there is a method of substituted service that could reasonably be expected to bring the court documents to R.G.'s attention – service through his Facebook account.

[17] R.G. has recently communicated with the society worker by Facebook. This means his Facebook account is active and that he is likely to receive notice of this case by Facebook. A concern with service through a Facebook account is that if the account is inactive, the person may not receive a posted message in time to respond.

[18] In Burke v. Doe, [2013] B.C.S.C., the court made an order for substituted service permitting the plaintiff in a defamation suit to serve the defendants by posting a notice on Message Boards that the defendants had actively participated in. The court wrote at paragraphs 14 and 15:

14 Many such applications are not reported. They are granted on affidavit evidence which confirms that the person proposed to be served maintains an active email or profile on social media sites. They reflect the reality of today's methods of communication which are increasingly electronic.

15 In Knott Estate v. Sutherland, [2009] A.J. No. 1539 (Alta. Q.B.), Master Breitkreuz ordered service of a statement of claim and notice to a defendant by sending a notice of the action to the defendant's Facebook page. Similarly, in Bryne v. Howard, [2010] FMCAFAM 509 (Fed. Mag. Ct.), service of a child support application via Facebook, and other electronic means, was deemed effective and in Mothership Music Pty Ltd. v. Darren Ayre (T/As Vip Entertainment & Concepts Pty Ltd), [2012] NSWDC 42, service of an injunction application was permitted by email transmission and by Facebook.

[19] Subrule 6(15) of the rules sets out when documents can be served by substituted service. It reads as follows:

SUBSTITUTED SERVICE

6(15) The court may order that a document be served by substituted service, using a method chosen by the court, if the party making the motion,

(a) provides detailed evidence showing,

(i) what steps have been taken to locate the person to be served, and

(ii) if the person has been located, what steps have been taken to serve the document on that person; and

(b) shows that the method of service could reasonably be expected to bring the document to the person's attention.

[20] The society has satisfied the criteria to make a substituted service order. It has taken reasonable steps to locate and serve R.G. It conducted searches, without success, to determine where R.G. lives. The court finds that service of the documents through R.G.'s Facebook account can reasonably be expected to bring them to his attention.

[21] Service in this manner gives R.G. the best opportunity to participate in this case. It is a much preferable option to dispensing with service.

[22] The court recognizes that R.G. may have blocked the society worker from communicating with him by Facebook. It should send the message that will be ordered through a different Facebook account.

[23] In making this order, the court has to also consider subsection 45(8) of the Child and Family Services Act which prohibits any person from publishing or making public information that has the effect of identifying a child who is a witness 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. The society worker was very responsible in not breaching this subsection when communicating with R.G. by Facebook.

Part Four – Conclusion

[24] The society's motion to dispense with service on R.G. is dismissed.

[25] A substituted service order will go that the society may serve R.G. with notice of this case by sending him a private message to his Facebook account that states the following:

I am counsel in a civil case in Toronto, Ontario that involves you. Pursuant to the May 6, 2016 order of Justice Stanley Sherr, of the Ontario Court of Justice, my client has been given permission to serve you with notice of this case by this message.

You may obtain copies of all court documents in this matter and a copy of the order of Justice Sherr by contacting me at Glass and Associates, 4600 Bathurst Street, 1st Floor, Toronto, Ontario, M2R 3V3, Telephone number: 416-638-7800; email address: swestreich@glassassoc.com.

Sara Westreich

Barrister and Solicitor

[26] The notice to R.G. should be sent by a Facebook account other than the society worker's.

Released: May 6, 2016

Justice S.B. Sherr