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 Information
Date: October 10, 2017
Court File No.: C81910/15
Ontario Court of Justice
Parties
Between:
Children's Aid Society of Toronto
Applicant
Simon Fisch, for the Applicant
- and -
M.V.-N. and S.C.
Respondents
Sharon Worthman, for the Respondent, M.V.-N.
The Respondent, S.C., not appearing and noted in default
Heard: October 6, 2017
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] On October 6, 2017, the court held a default hearing in this status review application regarding the respondents' two children (the children), ages 2 and 4.
[2] The applicant (the society) seeks the following final orders:
a) The children be placed in the care and custody of the respondent M.V.-N. (the mother), pursuant to section 57.1 of the Child and Family Services Act (the Act).
b) The mother be able to travel with the children outside of Canada without the consent of any other party, and specifically without the respondent S.C.'s (the father's) consent.
c) The mother be able to obtain or renew government documents, such as passports, passport renewals, health cards, SIN numbers, applications for name changes and birth certificates for the children without the consent of any other party and specifically, without the father's consent.
d) The father to have no access to the children.
e) The father be restrained under subsection 57.1(3) of the Act from having any contact, either directly or indirectly, with the mother or the children.
f) The society shall be served with any motion to change made by either the mother or the father under the Children's Law Reform Act (the CLRA).
[3] The mother consented to the relief sought by the society.
[4] The father did not file an Answer/Plan of Care. He did not attend at court. He was noted in default.
[5] The society and the mother submitted a joint statement of agreed facts for the court to consider on the default hearing.
Part Two – The Facts
[6] The mother and father are the parents of the children.
[7] The children live with the mother. They have not had access with the father for at least one year.
[8] There is no existing court order for custody or access of the children pursuant to the CLRA.
[9] The society issued its original protection application on November 5, 2015. On November 9, 2015, the children were placed in the temporary care of the mother, subject to society supervision.
[10] The father did not file an Answer/Plan of Care and was noted in default in that proceeding.
[11] On February 9, 2016, the children were found in need of protection and a final disposition order was made placing the children with the mother, subject to society supervision. Access to the father was ordered to be in the society's discretion. The term of the supervision order was five months.
[12] The protection finding was made pursuant to clause 37(2)(b) of the Act (risk of physical harm). The finding was made for the following reasons:
a) There was an ongoing pattern where the father would be physically violent to the mother and the society would be called. The society would terminate its involvement when the mother appeared to be protective of the children. She would then begin to miss appointments with the society, and the violence by the father towards her resumed.
b) The children were exposed to the domestic violence.
c) In December 2014, the police were called. The father had assaulted the mother when she was pregnant. The father was arrested and charged with assault, assault with a weapon, being unlawfully in a dwelling and impersonating a police officer.
d) The mother and father subsequently continued to spend time together, contrary to the father's criminal release conditions.
e) On July 30, 2015, the police were called due to a disturbance. The father was in the mother's home contrary to his criminal release terms. The mother was covered with bruises. The father was charged with assault and kept in police custody. The police reported that it was the 6th episode they had investigated about domestic violence by the father against the mother.
f) Subsequent to the father's release from jail, the mother worked less cooperatively with the society.
[13] In April 2016, the father contacted a society worker. He told the worker that he was living in a shelter, he was "not in a good place" mentally or emotionally, he had left his mother's home because there was too much alcohol use there, and he was not going to be seeking any access to the children until he could "be normal again".
[14] The supervision order was extended on July 6, 2016 for four months. The father did not participate in the status review proceeding. He did not exercise access with the children.
[15] On November 17, 2016 and November 28, 2016, the mother was physically assaulted by the father. At the time of these assaults, there were criminal and family court conditions and orders preventing the father from having any contact with the mother.
[16] Following the incident on November 28, 2016, the mother met with police and provided a statement about both the November 17 and 28 incidents. The father eluded police until December 6, 2016, at which time he turned himself in, was arrested and charged with 29 criminal offences, including numerous breaches of probation, assault, uttering death threats and criminal harassment.
[17] The father remained in jail pending trial. While in jail, the father advised a society worker that he would prefer to remain in jail, rather than participate in any programs that would be recommended, including anger management and addiction counseling.
[18] The mother subsequently cooperated with the society and with Victim Services in the criminal case.
[19] The supervision order was extended on April 12, 2017 for 6 months. The father did not participate in the status review proceeding. He did not exercise access with the children.
[20] On June 16, 2017 (the first day of his criminal trial), the father pled guilty to many of the 29 charges against him. He was sentenced to 2 years of probation, plus the 9.5 months of time he had already served in custody. A probation term requires that he have no contact with the mother.
[21] The father has not asked to see the children since his release from jail.
[22] The society issued this status review application on August 22, 2017.
[23] The mother has taken important steps to protect the children from the father, including:
a) Engaging in counseling to deal with the trauma of the years of domestic violence she endured at the hands of the father.
b) Working cooperatively with the society.
c) Following through and making the changes the society has recommended to ensure the safety of herself and the children.
d) Developing positive supports to assist her in protecting herself and the children.
[24] The society's evidence is that the mother seems stronger and more confident, making her less vulnerable to falling victim to the father's, or any other person's abusive behavior. The children are doing well in her care.
Part Three – Procedural Issues
3.1 Effective Service Date of the Status Review Application
[25] The status review application was first brought before the court on October 5, 2017. The society and the mother attended at court. The father did not. He had not filed an Answer/Plan of Care.
[26] After discussion, it was determined that the 30 days the father had to file an Answer/Plan of Care, pursuant to subrule 10(1) of the Family Law Rules (all references to rules in this decision are to the Family Law Rules), would not elapse until the close of the court office that day. The reasons for this follow below.
[27] Subrule 6(1) authorizes service of a status review application by special service.
[28] The status review application was served on the father by leaving a copy at his place of residence on August 28, 2017, in an envelope addressed to him, with a person who appeared to be an adult person resident at the same address, and, on the same day, mailing another copy to him at that address.
[29] This is a method of special service as defined by clause 6(3)(d) of the rules. Subrule 6(3) reads as follows:
SPECIAL SERVICE
(3) Special service of a document on a person is carried out by,
(a) leaving a copy,
(i) with the person to be served,
(ii) if the person is or appears to be mentally incapable in respect of an issue in the case, with the person and with the guardian of the person's property or, if none, with the Public Guardian and Trustee,
(iii) if the person is a child, with the child and with the child's lawyer, if any,
(iv) if the person is a corporation, with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be managing the place, or
(v) if the person is a children's aid society, with an officer, director or employee of the society;
(b) leaving a copy with the person's lawyer of record in the case, or with a lawyer who accepts service in writing on a copy of the document;
(c) mailing a copy to the person, together with an acknowledgment of service in the form of a prepaid return postcard (Form 6), all in an envelope that is addressed to the person and has the sender's return address (but service under this clause is not valid unless the return postcard, signed by the person, is filed in the continuing record); or
(d) leaving a copy at the person's place of residence, in an envelope addressed to the person, with anyone who appears to be an adult person resident at the same address and, on the same day or on the next, mailing another copy to the person at that address.
[30] Subrule 6(11.2) states that special service of a document using the method set out in clause 6(3)(d) of the rules is effective on the fifth day after it was mailed.
[31] The fifth day after the document was mailed was September 2, 2017. However, the determination of the effective date of service of the status review application does not end there.
[32] Subrule (11.3) states:
(11.3) Despite subrules (7) to (11.2), if the effective date of service under one of those subrules would be a day on which court offices are closed, service is instead effective on the next day on which they are open.
[33] Further, subrule 3(2) states:
COUNTING DAYS — SHORT PERIODS
(2) If a rule or order provides a period of less than seven days for something to be done, Saturdays, Sundays and other days when all court offices are closed do not count as part of the period.
[34] September 2, 2017 fell on the Saturday of the long holiday weekend. The court office did not open again until Tuesday, September 5, 2017.
[35] September 5, 2017 was the effective date of service of the status review application. This meant that the father had until the court office closed at the end of the day on October 5, 2017 to serve and file his Answer/Plan of Care.
[36] The father did not file an Answer/Plan of Care and the court proceeded with the default hearing on October 6, 2017.
3.2 Service of Claims for Restraining Orders
[37] Most claims for restraining orders in child protection cases are made pursuant to section 80 of the Act (section 80 orders).
[38] Claims for section 80 orders must be served personally on the person to be named in the order. Subsections 80(1) and (2) of the Act read as follows:
Restraining Order
80 (1) Instead of making an order under subsection 57(1) or section 65.2 or in addition to making a temporary order under subsection 51(2) or an order under subsection 57(1) or section 65.2, the court may make one or more of the following orders in the child's best interests:
An order restraining or prohibiting a person's access to or contact with the child, and may include in the order such directions as the court considers appropriate for implementing the order and protecting the child.
An order restraining or prohibiting a person's contact with the person who has lawful custody of the child following a temporary order under subsection 51(2) or an order under subsection 57(1) or clause 65.2(1)(a) or (b). 2006, c. 5, s. 30(1).
Idem: notice
(2) An order shall not be made under subsection (1) unless notice of the proceeding has been served personally on the person to be named in the order.
[39] The specific requirement for personal service means that any method of special service set out in subrule 6(3), other than personal service, will not constitute proper service of a section 80 order. Subrule 6(3) cannot be applied to except a party from compliance with a specific statutory provision. In so far as possible, courts seek to avoid conflict between statutory and regulatory provisions and to give effect to both. Where conflict is unavoidable, normally the statutory provision prevails. See: Ruth Sullivan: Sullivan and Driedger on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Canada Inc., 2008), page 341; L.R. v. V.V., 2011 ONCJ 16.
[40] However, the society did not make its claim for a restraining order pursuant to section 80 of the Act.
[41] The restraining order the society seeks is being claimed pursuant to subsection 57.1(3) of the Act (subsection 57.1(3) orders). This subsection reads as follows:
Restraining Order
(3) When making an order under subsection (1), the court may, without a separate application, make a restraining order in accordance with section 35 of the Children's Law Reform Act.
[42] Subsection 57.1(3) does not require that a claim for a restraining order be served personally on the person to be named in the order.
[43] There is also no requirement for personal service of a claim for a restraining order pursuant to section 35 of the CLRA - neither contained in that legislation, nor in the rules.
[44] In the absence of any explicit requirement for personal service, the court finds that service of claims for subsection 57.1(3) orders are effective through special service.
[45] Accordingly, the court finds that the father was properly served with the society's claim for the restraining order.
Part Four – Discussion
[46] The court will grant the relief claimed by the society.
[47] The custody and access claims of the society are in the children's best interests. The mother has been the sole caregiver of the children for close to two years and they are doing well in her care.
[48] A section 57.1 order, as opposed to another supervision order, is in the children's best interests. There is no longer a need for this court to monitor the matter. The mother has taken many steps to improve her ability to protect herself and the children. She has stayed away from the father and has connected with resources to support her.
[49] In the absence of an existing CLRA order, it is in the children's best interests that there be an order put in place, defining the parents' rights of custody and access – an order that can be enforced by the mother under the CLRA. A section 57.1 order, that will define these rights, is the least intrusive order for this court to make, consistent with the children's best interests.
[50] The father still poses a significant risk to the mother and the children, if he has contact with them. The children were exposed to considerable violence by the father against the mother. The violence escalated until the father was imprisoned. The father was convicted of these assaults and served time in jail.
[51] The father breached criminal release conditions and assaulted the mother twice while he was on bail. His disregard for the law increases the risk of physical and emotional harm to the mother and the children.
[52] The father chose not to engage with the society, participate in this court case or see the children. He does not have a meaningful relationship with the children at this time.
[53] There is no evidence that the father has taken any steps or engaged in any services to adequately address his issues. The evidence before the court is that the father is very resistant to taking these steps.
[54] Until the father can demonstrate that he has made meaningful changes in his life that sufficiently reduce the risk to the children, it is in their best interests that he has no access with them and be restrained from contacting them. At this time, access with the father is not safe for the children.
[55] It is also in the best interests of the children to order the incidents of custody requested by the society. The mother should not be engaging with the father to get his consent to obtain government documentation for the children or to travel outside of Canada with them.
[56] The evidence establishes that the mother has both a subjective and objective basis to fear for the safety of herself and the children. A restraining order will be ordered to protect them.
Part Five – Conclusion
[57] A final order shall go on the following terms:
a) The children shall be placed in the care and custody of the mother, pursuant to section 57.1 of the Act.
b) The mother may travel with the children outside of Canada without the consent of any other party, and specifically without the father's consent.
c) The mother may obtain or renew government documents, such as passports, passport renewals, health cards, SIN numbers, applications for name changes and birth certificates for the children without the consent of any other party and specifically, without the father's consent.
d) The father shall have no access to the children.
e) The father shall be restrained under subsection 57.1(3) of the Act from having any contact, either directly or indirectly, with the mother or the children.
f) The society shall be served with any motion to change made by either party under the CLRA.
[58] The court commends the mother for the personal gains she has made and wishes her and the children the best in the future.
[59] The court also thanks the society and mother's counsel for the support they provided to the mother and the children in this matter. This is one of many examples where society workers and child protection counsel make a positive difference in the life of a family.
Released: October 10, 2017
Justice S.B. Sherr