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.
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: 2017-11-20
Court File No.: Toronto C10963/17
Between:
Catholic Children's Aid Society of Toronto Applicant
— AND —
Y.P. (mother) and P.C. (father) Respondents
Before: Justice Robert J. Spence
Heard on: November 16, 2017
Reasons for Judgment released on: November 20, 2017
Counsel
Mr. Marshall Matias — counsel for the applicant society
Ms. Danielle De Bartolo — counsel for the respondent(s)
Ms. Erin Betts — counsel for the Office of the Children's Lawyer, legal representative for the children
Judgment
Robert J. Spence J.:
Nature of the Case
[1] This is the parents' motion seeking an extension of time to file their Answer/Plan of Care.
[2] The society's protection application (Application) was served on the parents on June 10, 2017. That Application seeks a finding that the children are in need of protection pursuant to subsections 37(2)(f), 37(2)(f.1), 37(2)(g) and 37(2)(g.1) of the Child and Family Services Act (Act).
[3] The parents attended court on June 15, 2017 at which time the court made a temporary without prejudice supervision order, placing both children in the care and custody of the parents, subject to specified terms and conditions. At the same court appearance, the court gave the parents leave to late file their Answer/Plan of Care to September 25, 2017. The parents were represented by duty counsel at that court appearance.
[4] By the next court appearance on October 11, 2017, the parents had still not filed their pleadings. Although the parents attended, and were represented by duty counsel, they did not request a further extension of time. The society advised the court that it would be seeking an order on default at the next court date, namely, December 18, 2017.
[5] Subsequently, the parents retained counsel, who brought the within motion returnable November 16, 2017, seeking a further extension of time to file their Answer/Plan of Care.
[6] The society opposed the parents' motion. Counsel for the Office of the Children's Lawyer was not opposed.
[7] At the conclusion of argument, I dismissed the parents' motion, with reasons to follow. These are my reasons.
The Law
a. Rules and Statute
[8] Subrule 10(1) of the Family Law Rules (Rules) provides that a respondent has 30 days to file an Answer/Plan of Care following the date of service of the Application.
[9] Subrule 10(5) provides that a failure to file an Answer/Plan of Care within the prescribed time means that the responding party is not entitled to participate in the case in any way and is not entitled to notice of further steps in the case. Further, the court may deal with the case in the absence of the respondent, and it may set a date for an uncontested trial of the case.
[10] Subrule 10(3) provides that the court may lengthen or shorten "any time set out in these rules", but it may lengthen times set out in subrule 33(1) (timetable for child protection cases) "only if the best interests of the child require it".
[11] Subrule 33(1) sets out that specific timetable for child protection cases. That timetable reiterates that the service and filing of answers and plans of care must be completed within 30 days. As with subrule 10(3), subrule 33(3) states that the court may lengthen times provided for in the timetable "only in the best interests of the child".
[12] Subsection 37(3) of the Act sets out the factors for the court to consider in determining what is in the best interests of a child:
Best Interests of Child
37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3) ; 2016, c. 23, s. 38 (18) .
b. Case Law
[13] The recent case of Children's Aid Society of Toronto v. E.S., 2017 ONCJ 365, is a decision of Justice Stanley B. Sherr. In that case, the society had served the mother with its Status Review Application on February 14, 2017. By March 29, 2017, the mother had not filed her Answer/Plan of Care. The court granted her an extension to April 19, 2017 to serve and file her pleadings.
[14] By the next court date on May 4, 2017, the mother had still not responded. She sought a further extension of time to file. The society opposed that request. As a result a motion was scheduled before Justice Sherr on June 1, 2017.
[15] Justice Sherr conducted a comprehensive analysis of the case law, including his own decision in Jewish Family and Child Service of Greater Toronto v. M.J.P., 2012 ONCJ 66. Beginning at paragraph 19 of E.S., supra, he stated [my emphasis]:
[19] I reviewed the case law on this legal issue in paragraphs 23-31 of my decision in Jewish Family and Child Service of Greater Toronto v. M.J.P., 2012 ONCJ 66. In brief, the case law sets out the following considerations in determining whether to grant an extension order to late-file an Answer/Plan of Care:
(a) The amount of time that the child has been in care.
(b) The failure to meet prior extension orders.
(c) The reason for the failure to meet the timelines.
(d) For a hearing to be fair, a parent should have a reasonable opportunity to present their case effectively.
(e) What will be the extent of the delay if the extension order is granted?
(f) Rule 2 does not expand the test – the best interests of the child must require the extension order.
(g) Most importantly, an extension order should not be granted if there is no air of reality to the parents' plan.
[20] In M.J.P., I added the following observations at paragraphs 33-36:
[33] In child protection cases, the court is often dealing with the most vulnerable people in our community. Many of the parents that the court sees have significant challenges in their lives. The involvement of the society is often a tremendous blow to their self-esteem. It is humiliating to be accused in their community of being either an abusive parent or so inadequate a parent that their children have to be removed from their care. Parents in these situations have to deal with difficult emotions such as anger and shame when they are often very ill-equipped to deal with them. They often become paralyzed in taking the positive steps necessary to achieve the return of their children and can be unfocused and disorganized. Quite often they do not proceed with a case or make progress in addressing the risk concerns in the linear fashion that professionals would prefer. This is particularly common in the earlier stages of child protection cases.
[34] I agree with the comments of Justice Heather L. Katarynych in paragraph [20] of her decision in Catholic Children's Aid Society of Toronto v. Tenisha S., [2002] O.J. No. 959, (Ont. C.J.), where she wrote:
[20] I also kept in mind the approach of the Newfoundland Court of Appeal in Lundrigan Group Ltd. v. Pilgrim (1989), 75 Nfld. & P.E.I.R. 217 (Nfld. C.A.) — that rules governing practice and procedure in the courts are guidelines for action, to be used in the furtherance of procedural justice. They are not inflexible "iron rails".
[35] It is particularly important in child protection matters that courts be flexible when dealing with timelines. The decisions made in these cases are arguably the most important decisions that our courts make. Courts need to be sensitive to the dynamics and challenges of the families that come before them. While subrule 33(3) sets out that the onus is on the parent seeking the extension order to show that the child's best interests require the extension, in the overwhelming majority of cases, it will be in the child's best interests to have the parents participate in the case and have their plans fully assessed.
[36] The threshold for establishing that it is in a child's best interests to grant an extension order should be very low. If the parent can establish that there is, as Justice Brownstone wrote, "an air of reality" to the plan, or another plan that they are supporting, then the parent will usually have established that it is in the child's best interests to grant the extension order.
[16] The thrust of this case law suggests that parents ought to be allowed to participate in child protection cases, as that is generally in the best interests of children. To further that objective, courts ought not to be overly rigid in enforcing the filing timelines, having regard to the factors set out above.
Analysis
[17] In the present case, the parents come to court, with counsel, seeking an extension of time to file, five months after they were served with the Application.
[18] The parents explain that their delay was caused by the fact that they were "in the process of moving" which impeded their difficulty in addressing the issues outlined in the Application.
[19] The parents go on to depose that they now realize their "mistake" in not taking any action to file their Answer/Plan of Care. And they seek to file their pleading for the following purposes:
(1) "to gain status as a party";
(2) to ensure that they are given "notice of the proceedings";
(3) "to ensure that decisions about what is in the best interests of the children are based on information that is as complete as possible"; and
(4) Although they are "largely in agreement with the society's recommendations related to the care of the children", they wish to be able to "work with the society and have input in developing a plan of care that is in the best interests of the children".
[20] To put the parents' stated objectives into context, it is important to note that what the society is seeking is a supervision order with the parents. More specifically, the society is seeking an order that the parents work cooperatively with the society to ensure that the children attend school on a regular basis. The society's Application was prompted by the excessively large number of school absences by all three children, during the 2016-2017 school year.[1]
[21] I propose to address each of the above-mentioned four stated objectives expressed by the parents:
(1) Gaining status as a party – The parents are parties to this proceeding by virtue of subsection 39(1) of the Act, which states that parties to the proceeding includes the child's parent. Their status as parties is not dependent upon whether they file an Answer/Plan of Care. Accordingly, their failure to file does not deprive them of party status.
(2) Notice of the Proceedings – While the Rules do disentitle the parents to notice once they are in default, the society has already given notice to the parents of the motion it intends to bring on the next court date seeking a finding in need of protection and the above-mentioned supervision order. The parents have notice, they know when the next court date will be and there is nothing which prevents them from attending the next court date. Once the supervision order is granted (if it is granted), the parents will then automatically be entitled to notice of the next likely proceeding, namely, the Status Review Application.[2]
(3) Providing complete information in the best interests of the children – the very nature of a supervision order implies a cooperative working relationship between the parents and the society. If the proposed supervision order is made, the parents and the society will engage with one another with a view to addressing the protection concerns in a way that addresses the best interests, protection and wellbeing of the children.[3]
(4) Working with the society – Once again, this is part of what a cooperative relationship is about when the court makes a supervision order. The society is mandated to work with the parents under the terms of any supervision order; and the parents are equally expected to work cooperatively with the society.[4]
[22] Accordingly, the court concludes that it is not necessary to set aside the parents' default and permit them to file their pleadings in order for the parents to accomplish the very objectives which they sought in their motion, and which formed the basis for that motion.
[23] There are additional reasons why the court is declining the parents' request.
[24] There is nothing in the list of considerations set out in subsection 37(3) of the Act which favours a departure from the timetable in subrule 33(1) in the best interests of the children.
[25] The only consideration in subsection 37(3) which might arguably apply is paragraph 10 – the effects on the child of delay in the disposition of the case. While the court has no evidence of what those effects might be, the court notes that the Act is remedial in nature, and timelines are important in ensuring that children do not remain in litigation drift longer than what is necessary. At paragraph 44 in Children's Aid Society of Toronto v. E.O., 2016 ONCJ 2, I commented [my emphasis]:
[44] Notwithstanding the fact that mother had been incarcerated, she nevertheless could have filed her Answer and Plan of Care. She chose not to do so. In considering whether to allow mother an extension of time, the court balanced the needs of the child, and the right of the child not to remain in litigation drift, with the mother's parental rights as set out in the Act.
[26] Equally important in my consideration, is the issue of what the parents' plan would be had they been allowed to file their Answer/Plan of Care. The only way for the court to assess this would be had the parents filed, with their motion, a draft Answer/Plan of Care or an affidavit describing their proposed defence to the society's Application.
[27] In Tenisha S., supra, Justice Katarynych was faced with parents who sought to set aside a default judgment which the society had obtained when the parents had failed to file an Answer/Plan of Care. Beginning at paragraph 51 of her reasons for judgment, Justice Katarynych stated [my emphasis]:
[51] It is a fundamental principle underlying the rules of court that cases should be determined on their merits, other things being equal, and not be derailed on a technicality. Mere inattention or forgetfulness and inability to give a good explanation for the failure to respond, though relevant to the exercise of the court's discretion, is not necessarily fatal to the motion. What is deserving of particularly close scrutiny in whether the respondent has some merit in her defence, whether there is a triable issue. See Langor v. Spurrell (1997), 157 Nfld. & P.E.I.R. 301, 486 A.P.R. 301, 17 C.P.C. (4th) 1, [1997] N.J. No. 264, 1997 CarswellNfld 238 (Nfld. C.A.).
[52] Importing those criteria into this case, Ms. T.S. does not have to satisfy this court that she will be able successfully to defend the society's claim. Her defence must, however, have an air of reality to it, or in the words of rule 20 of the Rules of Civil Procedure, raise a genuine issue for trial. Her onus is to demonstrate to the court that that there is a real issue in controversy that requires adjudication of the facts or the law. If she does not do that, the reopening of the case is a waste of time and delays this child's planning unnecessarily. The principle of a right to a full hearing must be balanced with the principle that both the parties and the child should be spared the cost and disruption of further litigation if there is no genuine issue for trial.
[28] In that case, Justice Katarynych had before her an affidavit from the parents setting out the nature of the defence upon which they intended to rely. Although the parents were ultimately unsuccessful in setting aside the default judgment, Justice Katarynych stressed the importance of the court having the ability to examine the merits of the proposed defence, something which can be done only if the parents file evidence. That evidence can be in the form of an affidavit, or a draft Answer/Plan of Care. But whatever form it takes, there must be sufficient disclosure of the proposed defence so that the court can determine whether there is "some merit" to the proposed defence, whether that proposed defence has "an air of reality to it" and whether it "raises a genuine issue for trial".
[29] No such evidence or proposed defence was placed before the court in this case. Not only was there nothing before the court suggesting that there was a genuine issue for trial but, on the contrary, as I noted earlier, the parents deposed they are
"largely in agreement with the society's recommendations related to the care of the children"
[30] This suggests to the court that no genuine issue for trial exists and that the reopening of the case to allow the parents to file an Answer/Plan of Care would be a waste of time.
[31] While courts recognize that parents have rights under the Act, the rights of the children take primacy. While parents generally have a right to participate in proceedings, the children have an overriding right to have their case determined without undue delay. The courts will always endeavour to weigh those competing interests where it appears they may be in conflict. However, at the core, the Act is focused on the rights of children, not on the rights of parents.
[32] For all of these reasons, I dismissed the parents' motion and permitted the society to proceed on a default basis.
[33] Despite my decision to dismiss the parents' motion, there is a silver lining for them. It arises from the fact that they now appear to recognize the pre-existing protection concerns which led to the commencement of the Application; and they now appear to recognize the importance of addressing those protection concerns and working cooperatively with the society. Importantly, this recognition – often referred to as insight – is the first and most essential step in addressing protection concerns. These parents do appear to be on the right path. This augers well for their children.
Released: November 20, 2017
Signed: Justice Robert J. Spence
Footnotes
[1] Although it does now appear that school attendance has improved in the current school year.
[2] This is because a Status Review Application is a new proceeding which must be served on the parties.
[3] In accordance with the Paramount Purpose of the Act, as set out in subsection 1(1) of the Act.
[4] Subsection 15(3) of the Act and, in particular, subparagraph 15(3)(c)