WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.—(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re 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) Prohibition re identifying person charged.— 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.
142.—(3) Offences re publication.— A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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.
ONTARIO COURT OF JUSTICE
CITATION: Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 209
DATE: April 8, 2019
COURT FILE No.: Toronto C12068/17
BETWEEN:
THE CHILDREN’S AID SOCIETY OF TORONTO
(Applicant)
— AND —
Y.M. (Respondent mother) and Y.B. (Respondent father)
Before Justice Robert J. Spence
Motion heard April 5, 2019
Endorsement delivered orally on April 5, 2019
Written Endorsement delivered April 8, 2019
Ms. Julia O’Byrne............................................................ counsel for the applicant society
Ms. Katherine Long.................................................... counsel for the respondent mother
Ms. Lauren Israel.................................. counsel for the Office of the Children’s Lawyer,
on behalf of the child N.
The respondent father in person
SPENCE J.:
INTRODUCTION
[1] The mother seeks an adjournment of the summary judgment motion brought by the Children’s Aid Society of Toronto (“society”), currently scheduled for April 18, 2019.
[2] The society and the child’s counsel from the Office of the Children’s Lawyer are opposed to the requested adjournment.
[3] The father supports the mother’s request.[^1]
[4] At the outset of argument on this motion, the mother’s counsel filed an affidavit, together with Exhibits, outlining some of the salient facts upon which she intended to rely in support of her argument.[^2]
[5] This motion raises the question of how courts should consider adjournment requests in child protection proceedings where a parent has previously been granted an adjournment, thereby delaying what could possibly have been a decision finalizing the protection proceedings.
EVENTS LEADING TO THE CURRENT REQUESTED ADJOURNMENT
[6] The summary judgment motion had originally been scheduled to be heard on March 21, 2019. That date had been set on consent of the parties on December 11, 2018.
[7] Subsequently, on February 27, 2019, the mother’s counsel filed a Form 4 removing herself as mother’s solicitor or record, and leaving the mother unrepresented. I make no comment about how that came about, other than to note that the filing of the Form 4 terminated the mother’s relationship with her then counsel of record.
[8] Up until February 27, 2019, the mother had been represented by counsel throughout these proceedings, which the society had commenced in February 2018.
[9] On March 7, 2019, the mother sought an adjournment of the March 21st summary judgment motion date, arguing that she was now without counsel and she required time to retain new counsel so that she could be adequately represented at the hearing of the motion.
[10] Both the society and the child’s counsel were opposed to the adjournment request, arguing that the child’s interests required a resolution of the matter, particularly as the protection application had been ongoing for more than one year.
[11] Moreover, at the February 27, 2019 court date, when the mother became unrepresented, in anticipation of a possible future adjournment request both the child’s counsel as well as society counsel put the mother on notice that they would be opposing any adjournment request that the mother might subsequently seek.
[12] When mother did in fact request the adjournment at the March 7th court date, she assured the court that if her request for an adjournment were granted, she would proceed with or without counsel on the new summary judgment motion date.
[13] The society and the child’s counsel both opposed the mother’s request at that court date. The child’s lawyer in particular argued that the child was experiencing stress and anxiety over the ongoing litigation and she very much wanted the litigation to come to an end. Child’s counsel argued that the child’s wellbeing ought to take priority over the mother’s request to delay the proceedings so that she could find and retain counsel.
[14] Although I expressed my reluctance to do so, in an effort to ensure procedural fairness to the mother I granted the mother’s adjournment request, noting in my endorsement, “both parents have stated to the court that if this adjournment is granted they will proceed with or without counsel on the next date”.
[15] The court then set April 18, 2019 as the new date for the summary judgment motion.
[16] On March 27, 2019, the mother retained her present counsel to represent her at the summary judgment motion.
[17] On the following day, mother’s newly-retained counsel wrote to all parties requesting an adjournment.
[18] On April 1, 2019, mother’s counsel filed a 14B motion form with the court, on notice to the other parties, requesting the adjournment on the basis that the mother is entitled to have fully prepared counsel and that counsel will not have adequate time to prepare for the motion given the short timelines for reviewing all material and preparing responding material to the society’s motion.
[19] The society responded with its own 14B motion form, in which it sought a summary dismissal of the mother’s adjournment request or, in the alternative, a court date to argue the mother’s request for adjournment.
[20] Child’s counsel also responded with her own 14B motion, asking the court to summarily dismiss the requested adjournment or, in the alternative, a court date to argue the adjournment request.
[21] I set today, April 5th to hear argument on the contested adjournment request.
ANALYSIS
[22] It is a long-held and well established principle of child protection law that time is of the essence for young children, and the resolution of their litigation proceedings should not be unduly delayed.
[23] It is well understood that the passage of time appears much slower for a 10 year-old child than it does for a 40 year-old adult.
[24] In this case, N. has been caught up in this Protection Application proceeding for almost 14 months.
[25] N.’s counsel, has made it clear to the court that N. is experiencing stress and anxiety, which is increasing as this case continues to drag on. N.’s counsel has urged the court to take whatever steps are necessary to move this case toward a speedy resolution.
[26] In deciding whether or not to grant an adjournment the court is required to balance competing interests.
[27] On the one hand, the mother quite understandably wishes to be properly represented on the hearing of this motion. Summary judgment motions can be complex. In the court’s experience, the law in child protection proceedings is not well understood by many lawyers who do not practise regularly in that area. Obviously, that lack of sophisticated understanding and the legal complexities are even more magnified where a parent is forced to represent herself without any legal representation whatsoever or, in this case, without counsel who is fully prepared.
[28] On the other hand, the child’s interests require the court to ensure that there is no undue delay in the proceedings.
[29] It was that very competing interest which the court took into consideration in deciding to grant the mother’s first request for an adjournment. The court recognized the importance of procedural fairness to the mother, the importance of giving the mother some period of time to obtain a lawyer to represent her on the hearing of the motion. So even though the mother’s interest conflicted with the child’s interest in moving the case forward, the court decided to grant the mother’s request for an adjournment.
[30] Now the mother seeks a second adjournment. And in these circumstances, the competing interests are arguably even more heightened.
[31] The mother correctly points out that the rights which are guaranteed to her under the Canadian Charter of Rights and Freedoms, are engaged in these circumstances where the outcome of the summary judgment motion could result in the permanent loss of custody of N.[^3]
[32] The Ontario Court of Appeal in Bhimji Khimji v. Dhanani, 2004 CanLII 12037 (ON CA), observed that a court considering a request for adjournments has a wide latitude in deciding whether or not to grant the requested adjournment.
[33] That court did set out two important principles which courts must take into account in the consideration of the adjournment request. While there are a number of different principles that the court can consider, there is no exhaustive list of factors for the court to take into consideration.[^4]
[34] The two main factors which I consider to be of preeminence in this case are: the need to balance the prejudice as between the parents and the child, and the importance of deciding the case on its merits.
[35] I turn first to the importance of deciding the case on its merits. The mother’s counsel argues that the court would not be able to consider the summary judgment motion on its merits because the mother would not be capable of fully presenting the merits of her case without counsel who is adequately prepared, through no fault of that counsel.
[36] The challenge to full and meaningful preparation by counsel in this case is highlighted by some of the evidence contained the affidavit which mother’s counsel filed this morning. More specifically:
(1) On April 4, 2019, the society sent disclosure to mother’s present counsel, covering the period of the society’s involvement from April 2018 to January 7, 2019, consisting of 2,245 pages.
(2) The society advised mother’s counsel that disclosure of events subsequent to January 7, 2019 will not be available until at least April 15, 2019, possibly later.
(3) The deadline for mother to file her material for the current motion date is today, April 5th, although in argument the society said it would be content to extend that deadline by one week.
(4) On March 14, 2019, the society served mother with an amended motion brief in which it sought to further restrict mother’s access in the summary judgment motion, as compared to the access it had been seeking in the original summary judgment motion brief.
(5) On February 27, 2019, when mother was without counsel[^5], the court heard a contested motion in which the court ordered a change in mother’s access from unsupervised access to supervised access.
(6) Numbers (4) and (5) highlight the importance of the need for disclosure from the society for events subsequent to January 7, 2019, disclosure which has yet to be forthcoming.[^6]
[37] The danger resulting from all of this is that the lack of properly prepared counsel could then result in the severing of the relationship between the mother and the child; and all of this based on evidence which is less than satisfactory. At the very least, mother could lose custody of her child entirely.
[38] The society and the child’s counsel argue that the mother does in fact have counsel and she will have had counsel in place for at least three weeks before the motion is argued, if the motion proceeds as scheduled on April 18, 2019. Accordingly, it is not correct to say that mother would be forced to proceed without counsel on the summary judgment motion. Furthermore, the society argues, even if disclosure is not complete, the disclosure that has been provided to date should be more than adequate to provide mother’s counsel with the facts upon which the society is relying when the summary judgment motion is heard.
[39] I turn next to the prejudice issue. Mother argues that if she is forced to proceed without properly prepared and instructed counsel, the prejudice to her would be significant, the loss of custody of her child.
[40] Mother argues that there is minimal prejudice to the child if there is a delay of a few weeks in the argument of the motion. The child has remained with the current caregivers for a significant period of time, and she will continue to remain with those caregivers during the term of any adjournment. And it is a placement with those caregivers which the society is ultimately seeking in its motion for summary judgment.
[41] The society and the child’s lawyer argue that delay is, in and of itself, prejudicial to the child. They argue that the court must always be cognizant of how delay impacts the very person who is the subject of any child protection proceeding, the child herself.
[42] Child’s counsel points out that the Preamble to the Child and Youth Family Service Act states that
“children are individuals with rights to be respected and voices to be heard”
[43] So that when the child is expressing her anxiety and stress over the ongoing litigation, that voice needs to be heard by the court.
[44] I do not disagree with any of these submissions by the society and child’s counsel and, in particular, the importance of the child’s voice in child protection proceedings.
[45] However, in my view, the child’s “rights” as expressed in the Preamble are more than just about having her case heard quickly. Those rights encompass procedural fairness to the child’s parent, the right for the child’s parent to present her case as fully as reasonably possible so that the outcome, whatever it may be, reflects what is in the best interests of the child.
[46] A case which is not heard fully on the merits runs the risk of an outcome which may be contrary to the best interests, protection and wellbeing of a child.
[47] The society and the child’s lawyer argue that the mother committed herself to proceeding with or without counsel when the court reluctantly granted the first adjournment request. In effect, they argue that the adjournment was granted peremptorily to the mother.
[48] Moreover, they argue, the mother does in fact have a lawyer, so that she would not be appearing on the motion by herself.
[49] The competing interests in this case are difficult. I have read the parties’ respective 14Bs and I have been considering those competing interests since I first received the mother’s request for adjournment on April 1st. I also considered carefully the thoughtful oral submissions I heard today which were intended to supplement the parties’ respective positions set out in their 14B motion forms.
[50] Although I do so with some reluctance, I have decided to exercise my discretion in favour of granting the mother’s request for one further adjournment. I do so for the following reasons.
(1) The motion for summary judgment is a significant proceeding which could permanently sever the relationship between the mother and the child. While I appreciate the society is not seeking an extended society care order, the custody order it seeks could have the effect of terminating the mother’s relationship to her child.
(2) The issues raised in the summary judgment motion involve some level of complexity which require the mother’s counsel to have prepared and filed material which fully responds to the society’s motion material.
(3) Counsel’s ability to fully respond requires complete disclosure from the society. That disclosure currently goes only up to January 7, 2019.
(4) The particular facts of this case involve evidentiary issues, possibly pertaining to mother’s mental health, as well as issues of drug testing and child hearsay statements. There will likely be a level of complexity to the evidence pertaining to these issues which will require counsel to spend considerable time in preparation in order to adequately represent the mother.
(5) The test on a motion for summary judgment is whether there is a genuine issue which requires a trial.[^7] The most desirable way for a court to determine whether a genuine issue exists is to have the best available evidence presented at the hearing of the motion.
(6) The delay sought by the mother is only about one month which, in the overall context of this proceeding is not excessive.
(7) The mother was represented by counsel throughout this proceeding and until the end of February when her relationship with her prior counsel came to an end. The court finds as a fact that the mother did not act capriciously in the termination of that relationship. Furthermore, the court accepts the mother’s submission that she took all reasonable steps to retain new counsel as quickly as possible. In fact, the uncontested evidence is that mother contacted approximately 10 lawyers in an effort to find a lawyer who would represent her on the summary judgment motion.
(8) The court does not conclude that mother has done anything to intentionally delay the progress of this proceeding.
(9) The child is not in the society’s care, in a foster home but, rather, in the care of kin.
(10) During the period of adjournment the child will remain with the kin caregivers who have been caring for her for many months. The child’s routine will not be disrupted in any way.
[51] I recognize that delay is never acceptable. However, occasionally the need for fairness – for both the child as well as the parent – dictate that some delay is necessary in order to ensure procedural fairness in the interests of justice to all parties.
[52] I wish to make it clear that the request for a second adjournment of a scheduled summary judgment motion will be granted only sparingly, as a delay of that nature will often result in an unacceptable prejudice to the child.
[53] Instead, I have granted the mother’s request on the very unique facts of this case.
[54] Furthermore, had I concluded that the mother was intentionally delaying this proceeding, or that she had been less than proactive in retaining new counsel after her relationship with her prior counsel was terminated, I might have reached a different conclusion today.
[55] The request for adjournment of the summary judgment motion is granted. The April 18th motion date is vacated. In its place, the summary judgment motion will be heard on May 15, 2019 at 2:00 p.m.
[56] I am ordering the society to ensure that all relevant disclosure is completed and given to mother’s counsel no later than April 15, 2019.
[57] Mother’s counsel, as well as father, have until May 6, 2019 to file their responding material. The society has until May 10, 2019 to file its reply and its factum.
[58] I thank all counsel for their very helpful submissions in this matter, prepared on short notice.
Justice Robert J. Spence
April 5, 2019
[^1]: The society, the Office of the Children’s Lawyer and the mother all made submissions on this motion. The father chose to make no submissions.
[^2]: No objection was taken by any of the other parties or the child’s lawyer to the filing of that affidavit.
[^3]: The Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 SCR 46, held that the state’s interference with a parent’s custodial rights in child protection proceedings engages section 7 Charter rights.
[^4]: Similar observations were made by the Ontario Court of Appeal in Law Society of Upper Canada v. Igbinosun (2009), 2009 ONCA 484, 96 O.R. (3d) 138.
[^5]: Immediately following the filing of the aforementioned Form 4 which removed mother’s counsel of record.
[^6]: I do not attribute blame to the society as I recognize the extensive resources which the society requires in order to provide disclosure, especially on relatively short notice.
[^7]: See Subrule 16(6) of the Family Law Rules.