WARNING
The court hearing this matter directs that the following notice 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.
87.— (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.
87.— (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.
Court Information
Ontario Court of Justice
Date: 2019-08-17
Court File No.: Sault Ste. Marie File No. 83/10-05
Between:
Children's Aid Society of Algoma Applicant
— AND —
K.S.
L.J.
Michipicoten First Nation Band Representative Respondents
Before: Justice John Kukurin
Heard on: August 16, 2019
Reasons for Judgment released on: August 17, 2019
Counsel
- Mr. J. Rossi — counsel for the applicant society
- Mr. S. McCooeye — counsel for the respondent father, L.J.
- Ms. J. Miller, Band Representative (Michipicoten F.N.) — on her own behalf
- No appearance by or on behalf of the Respondent mother, K.S. even though served with notice
- Ms. L. Marshall — counsel for the Office of the Children's Lawyer, legal representative for the child
KUKURIN J.:
[1] Introduction
This is a Ruling on an issue that arises out of a motion brought by the Respondent father in this status review proceeding. The motion has several claims but the claim relevant to this ruling is one seeking a somewhat unusual access order.
ISSUE BEFORE THE COURT
[2] The Children and Current Access
There are two children involved in this case, a 13 year old girl and an 11 year old boy. The motion claim (at Tab 13, Vol 8 paragraph 4) deals with access relating to the daughter only. The children were apprehended in June 2017 from the father and have been in the society's care since then, in separate foster homes. The father has had interim access to them pursuant to a court order that left the details of access to be 'arranged' by the father and the society, and to be supervised in the discretion of the society. What this access by the father to the daughter has turned out to be in the intervening two years is not always so easy to discern, but at present, it seems to be for five hours once every two weeks (although there are some instances where this time limit has not been so rigid). The father did not specify in his motion claim what access he wants, but in his supporting affidavit, he states that he wants day access for each Saturday and each Sunday.
[3] The Unusual Nature of the Claim
In any event, the father is the access holder under the existing interim access order. That access is not specified in terms of frequency, duration, location or level of supervision. His claim in his motion is for an order that the daughter have better access to him and that it be specified in term of frequency, duration, location and level of supervision. It appears that the father, and his counsel, did not appreciate that his access claim was for his daughter to be the access holder to him. In fact none of the other counsel thought so either. Everyone was present prepared to argue whether his interim access order should or should not be varied.
[4] Procedural Confusion and Oral Amendment
When the court pointed out that the wording of his claim was not to vary his interim access order, the father's counsel sought orally to amend the motion claim to one that was for variation of the father's interim order. However, he also wanted to argue for the claim that was, in fact, before the court; namely for the daughter's interim access to him. The society's counsel and the child's OCL (Office of the Children's Lawyer) counsel both consented to his oral request to include the variation claim in his motion. However, counsel from the society objected to his claim as worded in his motion, and an argument ensued as to whether the father could make such claim at all. In the circumstances, the court entertained argument on this issue and these Reasons explain its decision. The court also heard argument on the variation claim that was added on consent, which will be the subject of separate Reasons to be released at a later date.
[5] Context of the Status Review Proceeding
For further context, this status review case is now over two years old, it is scheduled for the hearing of a summary judgment motion brought by the society in mid October, two months hence, and there are no trial dates set. In fact, there has been no trial management conference held, or even scheduled yet. Neither the mother, nor the band representative (nor OCL counsel for the child) has filed an Answer. The society's official claim is for crown wardship (now called extended society care [ESC]) of both the daughter and her 11 year old brother. The status review application has no claim access, nor for an order of no access. Access is conspicuously absent.
Position of the Society
[6] Society's Objection to the Claim
The society's argument on the father's claim is that he cannot bring a motion for another person's access, in this case, the access of his daughter. He emphasizes that this is particularly so when the daughter is legally represented in this case and her lawyer is at the counsel table. His arguments are threefold.
[7] First Argument: Precedent Concerns
He argues that it would be bizarre to permit this as it would set a precedent that would permit anyone to seek from the court an order that could potentially establish access rights of anyone else, even of strangers.
[8] Second Argument: Child's Own Lawyer Should Bring Claim
He argues that any access that a court may grant to the daughter should be on a claim that is placed before the court by the child's own lawyer, not by another party, and should be advocated by her own lawyer with evidence.
[9] Third Argument: Circumventing Material Change Requirement
He argues that the father is trying to do an 'end run' around the real issue which is his access to his daughter. By advancing the claim for his daughter's access to himself, he is circumventing the pre-requisite that he has otherwise to satisfy in his variation of his own interim access, namely that there has been a material change in circumstances.
[10] Fourth Argument: Temporary Order Authority
He argues that the father's claim is for a new order that has not existed to date, and is for a temporary order. He questions what authority the father has to seek a temporary order for the child's access to him. He points out that temporary orders are governed by Rule 14 of the Family Law Rules. A person may make a motion for a temporary order "for a claim made in an application". I take this to include, in the father's case, a claim made in an Answer (as he is a Respondent and can only file an Answer.) However, the father has no claim for his daughter's access to him in his Answer, even as an alternative claim. And so, he is not able to seek a temporary order for a claim he has not even made.
[11] Fifth Argument: Lack of Preparation
Finally, although not explicitly argued, I gather that he was unprepared to address this claim as he misunderstood what the father was asking for. Although he was properly served and the wording was plain for anyone to read, it appears that OCL counsel for the child, and even the father's counsel (who formulated this claim) misunderstood what was being asked in it.
Position of the OCL Legal Representative for the Child
[12] OCL Counsel's Position
In fairness to the child's lawyer, I must explain that she was only appointed very recently. The child had another lawyer (who was appointed to the bench) and had to leave her child client rather precipitously. As a result, the present OCL counsel was not as 'up to speed' as might have been preferred. However, she did have one meeting with the daughter by telephone, and was briefed by the former OCL counsel on the daughter's views and wishes. As a result, the position she took was that she had no objection to the father advancing the claim for her client's access to him, that she, and the daughter, were not objecting to or contesting that claim, and that she had no evidence that she intended to call on the father's claim. Moreover, she had reviewed with the child, the father's claim and supporting affidavit.
[13] OCL Counsel's Submissions
OCL counsel for the child did not have any submissions to make on the arguments advanced by the society or by the father on the propriety of the father's claim.
Position of the Father
[14] Father's Statutory Right Argument
The father's counsel maintained that the father did have a statutory right to advance a claim for an order for his daughter's access to himself. He cited s.104(2) of the Child, Youth and Family Services Act (CYFSA) as his authority and, in particular, clause 2 of that subsection. This, he maintained, gave the father who was clearly within the category of "any other person" the absolute right to seek an order under "subsection (1) of s.104 CYFSA. And subsection (1) of s.104 CYFSA included making an order for a child's access to a person – which was exactly what he was seeking.
[15] Technical Oversight Argument
With respect to the fact that his claim was for a temporary order for a claim that he had not brought in the status review case, he argued that this was a technical oversight and that the father could readily seek to amend his Answer and Plan of Care to cure this procedural problem.
[16] Society's Parallel Practice Argument
Moreover, he argued that the society itself almost invariably did the same thing that it sought to prevent the father from doing whenever it started any child protection application. The society, he argued, almost always brought a claim for parental access to the child who was the subject of the proceeding, and in fact, brought an accompanying temporary care and custody motion which included a request for a temporary order for that claim. In doing so, it was seeking an order for access by another person (i.e. typically a parent or another caregiver).
[17] Child's Legal Representative Support
In addition, in the present case, the legal representative for the child had essentially given the father the green light to advance and advocate for this motion claim. And, in fact, was supporting this claim.
Reply Argument of the Society
[18] Motion vs. Application Distinction
Counsel for the society countered that s.104 does not authorize a motion. If a claim such as that of the father is to be made, it must be made in an Application (which I presume includes in an Answer).
[19] Amendment Requirements
Moreover, if the father sought to amend his Answer to include such claim, he would have to (perhaps) get consent of all parties, or court permission for such amendment, and in any event, would have to serve all parties with his amended Answer. He had done none of this before bringing his motion.
[20] Overall Context
Finally, he urged the court to look at the overall proceeding and the context in which this claim was brought, both of which ought to persuade the court to rule against the father.
[21] Summary of Arguments
The foregoing, I believe, fairly represents the context in which the father's motion claim is brought, as well as the arguments of the parties on the issue of whether the motion is properly before the court.
Analysis
[22] Standing to Bring Application
I agree with the father's argument that he has the standing to bring an application for his child's access to himself, and for that matter, for his child's access to any other person, be it to the child's sibling(s) or to any adult. There is good reason for this interpretation aside from the fact that a plain reading of s.104 (1) and (2) CYFSA expressly authorizes such application.
CYFSA S.104 (1) The court may, in the child's best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
CYFSA S.104 (2) Where a child is in a society's care and custody or supervision, the following may apply to the court at any time for an order under subsection (1):
- The child.
- Any other person, including a sibling of the child and, in the case of a First Nations, Inuk or Métis child, a representative chosen by each of the child's bands and First Nations, Inuit or Métis communities.
- The society.
[23] Child's Logical Position as Applicant
The fact is that a child protection or status review application has statutorily defined parties. It would be unusual for a non-party to bring such application, but permissible. Even the society, under clause (3) of s.104(2) above can bring an application for an order in which the child would be an access holder. The child clearly may bring such application under clause 1 of s.104(2), and, in my view, would be the most logical person to make such claim, particularly if the child had legal representation. However the child has not made a claim that the court order that she have access to her father, and when considering such an eventuality, one has to ask "How would she do that anyway?" She is not a party, and has no pleading before the court in which to make such a claim.
[24] Statutory Requirements for Notice
However, s.104 (1) and (2) have to be read together with s.104(3) and s.104(4) which place requirements on the applicant seeking such order, and on the society. There is no evidence that the father has complied with s.104(3) and the continuing record seems to confirm such non-compliance on his part.
CYFSA S. 104 (3) An applicant referred to in paragraph 2 of subsection (2) shall give notice of the application to the society.
CYFSA S. 104 (4) A society making or receiving an application under subsection (2) shall give notice of the application to,
(a) the child, subject to subsections 79 (4) and (5) (notice to child);
(b) the child's parent;
(c) the person caring for the child at the time of the application; and
(d) in the case of a First Nations, Inuk or Métis child, the persons described in clauses (a), (b) and (c) and a representative chosen by each of the child's bands and First Nations, Inuit or Métis communities.
[25] Procedural Defect: No Pleaded Claim
The fact is that the father has no Application (or Answer) before the court in which he has a claim for his daughter's access to himself. He has a motion for this relief on a temporary basis only, on a claim for a final order he has not even made. Accordingly, he is not bringing this motion claim under Rule 14(1) of the Family Law Rules. And he cannot advise the court what authority he has for doing so. I might add, parenthetically, that any intimation that such temporary claims are oftentimes brought even when no final order claim has been made, and courts often hear such claims and make such temporary orders does not fly. If motion applicants and courts do so, they are doing so beyond what the Rules specifically provide.
Family Law Rules, Rule 14. (1) A person who wants any of the following may make a motion:
- A temporary order for a claim made in an application.
- Directions on how to carry on the case.
- A change in a temporary order.
[26] Alternative Basis Under Section 104(1)(a)
There is another way in which the court can make the kind of order that the father is seeking. That is under s.104(1) and in particular, clause (a). The court can make such order when it makes an order under "this Part" which I take to refer to Part V of the CYFSA. However, I was not making an order under Part V when the motion of the father for his daughter's access to him was brought. Accordingly, this avenue is not open to the father.
[27] Society's Statutory Standing
I remarked in paragraph 22 above that I agreed that the father had standing to bring an application for this relief. With respect to his argument that the society does so almost every time it starts a child protection proceeding, it is clear that a society has statutory standing to do so in clause 3 of s.104(2). So long as the society has such claim in its application, it may bring a motion for a temporary order with respect to such claim. This, of course would require the society to serve all of those persons and entities to whom it is directed to give notice by s.104(4) CYFSA.
[28] Qualitative Difference Between Society and Father's Motions
However, the society's claims, in their applications and in their temporary relief motions generally seek that a court order access to a parent or a caregiver of the child to the child, not so much to concede them contact through such access, but, in my experience, more to place limits or conditions or other terms on such access, or to permit the society to (unilaterally) determine what that access will consist of in terms of time, frequency, duration, location and level of supervision. To the extent that the society is seeking any temporary access order for someone other than itself, I agree that its motion has some similarity to the father's motion in this case. However, society motions are qualitatively different from the father's motion. And moreover, societies do not bring motions for an order for access that a child (as an access holder) may be granted. Not in any case law of which I am aware.[1]
[29] Ruling: Motion Improperly Before Court
Accordingly, the father's motion claim for an order that his daughter have temporary access to him is improperly before this court in that:
(a) He has made no application claim (nor any claim in his Answer) for a final order with respect to the child's access to him;
(b) He does not fall within the ambit of Rule 14(1) in bringing this motion claim for this relief on a temporary basis;
(c) He has not amended his Answer, and clearly has not served his amended Answer on the society as required by s.104(3);
(d) The court is also not making any other order, and he is not relying on s.104(1)(a) to give him standing for this motion in any event;
(e) The fact that OCL counsel for the child endorses such motion is not tantamount to a delegation of OCL counsel's role as legal representative for the child to counsel for the father, nor is it an authorization for him to act for her as her agent. I am sceptical that she would even have the power to do either of these things. Moreover, she has not even had a face to face meeting with the child, and she concedes that three interviews before taking a position is the standard OCL policy. I suspect that with so little time afforded her, she was caught by surprise, and felt that, as her child client's position was aligned with the father's, the only practical thing she could do to advance that position was what she did.
(f) Finally, everyone, including the father's own lawyer, was rather sloppy in appreciating what the wording in his motion claim was actually seeking, and no one was prepared to argue this relief.
[30] Disposition
My ruling is that the motion claim of the father for interim access by his daughter (as an access holder) to himself is not properly before this court. It will not be entertained by this court. However, the father is free to bring this same claim upon complying with the CYFSA statute provisions and the Family Law Rules provisions applicable to it as set out above.
[31] Recommendation
If I may be permitted to reiterate my feelings above, this would be a claim that is much better brought if it were made by, and argued by, OCL counsel for the child. There are ways that such claims can be made by a child in a status review proceeding, and with much more impact when made directly, than when made indirectly by someone else.
Released: August 17, 2019
Signed: "Justice John Kukurin"
Footnote
[1] In domestic Children's Law Reform Act applications, a mother will often seek an order for her sole custody of a child, and will also ask for an order for access to the child. The application sometimes makes it clear that she is seeking that the court make an order for the father's access, usually with some condition (eg that it be supervised). Sometimes it doesn't and it is only at a case conference that clarification is obtained about what access she is seeking (e.g. perhaps access to herself, in the alternative, in the event she is not successful in her custody claim). If she is seeking a paternal access order, she is seeking an order for a person other than herself. Courts have traditionally permitted and ruled on such access claims, often granting them.