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: 2019-12-19

Court File No.: Toronto C61859/13

Parties

Between:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO Applicant and moving party on the motion

— AND —

S.K.S. Respondent (mother)

- AND -

M.C. Respondent (father of Ki..)

-AND-

T.N. Respondent (father of Ke..)

-AND-

MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent on the motion only

Before the Court

Justice Robert J. Spence

Heard on: November 27, 2019

Reasons for Ruling released on: December 19, 2019

Counsel

Mr. Marshall Matias — counsel for the applicant society

Mr. Gesta Abols — counsel for the respondent mother

Ms. Caterina Tempesta and Ms. Madeleine Sarick — counsel for the Office of the Children's Lawyer, legal representative of the child Ke..

Mr. T.N., respondent father of Ke.., in person

Mr. M.C., respondent father of Ki.., not appearing having been noted in default

Ms. Jocelyn Espejo-Clarke and Mr. Alex Kam — counsel for the Minister of Public Safety and Emergency Preparedness, on the motion only

Reasons for Ruling

R.J. Spence J.:

1: INTRODUCTION

[1] This was a motion brought by the Catholic Children's Aid Society of Toronto (society), seeking an order

That the mother, S.S. [mother], and the children, Ki.., born March….2005 and Ke.., born March….2009, shall remain in the Province of Ontario and within the territorial jurisdiction of the Catholic Children's Aid Society of Toronto.

[2] The requested relief was directed at the Minister of Public Safety and Emergency Preparedness (Minister), as the Minister had issued a removal order (removal order or deportation order) and set a date for the deportation of the mother and Ki.. to St. Lucia.

[3] The Minister was seeking to enforce the removal order against both the mother as well as Ki.., neither of whom have legal residency status in Canada.

[4] The child Ke.. is a Canadian citizen and is not the subject of the Minister's removal order.

[5] The society's request for relief was supported by the Office of the Children's Lawyer (OCL) and the mother.

2: BACKGROUND

[6] The mother and Ki.. are both citizens of St. Lucia. They arrived in Canada on December 16, 2007 as visitors, entitled to remain in Canada for six months. Mother and Ki.. lost their immigration status in 2008.

[7] The child Ke.. was born in Canada in 2009. She is a Canadian citizen and is not subject to any immigration proceedings.

[8] Following Ke..'s birth, the mother commenced a claim for refugee protection in May 2009.

[9] The Refugee Protection Division (RPD) refused that claim in July 2011. Upon the refusal of that claim the mother and Ki.. became subject to an enforceable removal order.

[10] Following the refusal of the mother's claim by the RPD, the mother sought leave and judicial review from the Federal Court. The Federal Court dismissed the mother's application for judicial review in October 2011.

[11] In November 2011, mother submitted an application to remain in Canada on the basis of humanitarian and compassionate grounds (H&C). The H&C application was subsequently refused in April 2012.

[12] Canada Border Services Agency (CBSA) has the responsibility to enforce removal orders. However, CBSA deferred enforcement when it subsequently learned that mother had an ongoing Family Court matter involving the child Ki..

[13] CBSA subsequently learned that mother had been charged – in 2013, and convicted in 2014 – of a "serious" criminal offence.

[14] Pursuant to the Immigration and Refugee Protection Act (IRPA), a section 44 report was issued stating that mother was inadmissible to Canada, pursuant to clause 36(1)(a) of IRPA, on the grounds of serious criminality.

[15] In October 2013, the society commenced a Protection Application under the Child and Family Services Act (CFSA), seeking a finding that the children Ki.. and Ke.. were both in need of protection pursuant to the CFSA. The society also sought a six-month society wardship order pursuant to the CFSA.

[16] On February 18, 2015, the Family Court made an order finding both children in need of protection and placed the children in the mother's care and custody, subject to a number of terms and conditions, to be supervised by the society. The length of that supervision order was six months.

[17] Prior to the expiry of that six-month supervision order, the society issued a Status Review Application in which it sought a further six-month supervision order with the mother.

[18] That Status Review Application set out a number of ongoing protection concerns which remained, and which required continued monitoring and support from the society in the children's best interests.

[19] On November 9, 2015, the Court made a further six-month supervision order. That order contained 10 terms and conditions, all of which were intended to address the ongoing protection concerns pertaining to the children.

[20] During 2015, the mother attended a number of pre-removal interviews with the CBSA. The mother was continuing to advise the CBSA of ongoing Family Court litigation.

[21] On August 17, 2016 the Court made a further six-month supervision order with the mother. There were eight terms and conditions attached to that supervision order, including the need for counselling services for parenting issues and ongoing mental health issues for mother.

[22] At some point in early 2017, the Minister became more specifically aware of the ongoing child protection proceedings and in May 2017 counsel from the Department of Justice attended Court on behalf of the Minister.

[23] The society and the Court continued to have concerns about the mother's ability to adequately parent and to address the risks of harm to the children without Court involvement. Accordingly, on June 5, 2017, the Court made a further six-month supervision order, placing the children with the mother, subject to nine terms and conditions.

[24] The Minister was represented by counsel again on March 26, 2018 when the Court made a further six-month supervision order. Counsel for the Minister advised the Court on that date that the Minister would not be acting on the existing deportation order. Instead, the Minister would continue to monitor the progress of the child protection matter.

[25] That supervision order contained a number of terms designed to protect the children from risk of harm, including a requirement that the mother refrain from using physical discipline, that the mother continue with her counselling at both Aisling Discoveries for parenting, and Woodgreen Community Services for individual therapy. The mother was also required to work cooperatively with the society to ensure that the outcome of the psychological assessments on the children were implemented and, more particularly, in respect of Ki..'s social development.

[26] At the Court appearance on October 22, 2018, the Minister was again represented by counsel from the Department of Justice.

[27] Counsel for the Minister attended Court again on December 10, 2018.

[28] Because of ongoing protection concerns for the children, the Court made another six-month supervision order on January 9, 2019. The status review of that order was set for June 26, 2019, prior to the expiry of the six-month order.

[29] The parties – as well as counsel for the Minister – attended Court on June 26, 2019 on the first return date of the Status Review Application. The matter was adjourned on consent to October 16, 2019.

[30] On October 16, 2019, the parties and the Minister once again attended Court. Counsel for the Minister advised that the mother and the child were set to be removed from Canada on October 20, 2019.

[31] On that date, the Minister sought to be added as a party to this proceeding. The OCL opposed that request but did not oppose the Minister's request to make submissions on the issue whether the Court should make a non-removal order in the face of the Minister's removal order, and whether there was a legitimate need to maintain the supervision order.

[32] Justice Melanie Sager (the case management judge) made a temporary without prejudice non-removal order pending further order of the Court. Counsel for the Minister undertook not to act on the existing deportation order until the matter could be argued in full and a decision issued by the Court.

[33] The society then brought a formal motion seeking a non-removal order during the currency of the child protection proceedings. All parties, including the Minister were served, and the Court set November 27, 2019 for argument on that motion.

[34] On November 27, 2019 all parties (except for Ki..'s father who had previously been noted in default) appeared in Court, as well as counsel for the Minister.

[35] Prior to the commencement of argument, all parties opposed the Minister's request to be added as a formal party to the ongoing child protection proceedings. However, all parties agreed that the Minister should have the right to make submissions on the society's discrete non-removal motion.

[36] On that basis, the Minister withdrew its request for formal party status.

[37] The Minister subsequently during argument was given permission by the Court to make submissions on whether there was a continuing need for a supervision order. The other parties did not object to the ability of the Minister to make these submissions.

[38] The motion was then argued, and the Court reserved its decision.

3: THE ISSUES

[39] There are three primary issues before the Court on this motion:

1. Does the existence of the supervision order dated January 9, 2019 pursuant to the CYFSA, in and of itself, act as a stay of the Minister's removal order?

2. Whether or not the supervision order acts as a stay of the removal of the mother and the child, does this Court have the jurisdiction to make a non-removal order in the face of the Minister's removal order?

3. Assuming this Court does have jurisdiction to make a non-removal order, ought this Court to make such an order?

3.1: Does the Supervision Order act as an automatic stay of the Minister's removal order?

3.1.1: Introduction

[40] Paragraph 50(a) of IRPA states:

Stay

50 A removal order is stayed

(a) if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order;

[41] I take from the OCL's argument that its position on the removal issue is as follows. The supervision order in and of itself is such that this Court is not required to make a specific non-removal order, in order to prevent the Minister from acting on the existing deportation order.

[42] The OCL argues that the very nature of the supervision order is such that it acts as a bar to enforcing the deportation order. That argument is founded on the submission that a real lis exists in the child protection proceeding and the supervision order made within that proceeding.

[43] This argument that a lis exists, is central to the next section of these reasons.

3.1.2: What is the significance of whether a lis exists in the context of the Minister's removal order?

[44] In order to fully understand the importance of determining whether or not a lis exists in a child protection case, in the context of ancillary immigration proceedings, it is helpful to begin with the law.

[45] In cases which have considered whether the Minister can be prevented from enforcing a deportation order, the crux of those decisions has been about whether there existed a genuine lis between the parties, apart from the immigration proceedings.

[46] In other words, where parties have attempted to stop the Minister from enforcing a deportation order, the Court must first decide whether the parallel proceeding – either in a Children's Law Reform Act (CLRA) case or in a CYFSA case – raises a genuine lis, such that the enforcement of a deportation order would contravene the CLRA or CYFSA order made by the Court.

[47] I turn first to the case of Wozniak v. Brunton, [2003] O.J. No. 1679 (S.C.J.), a decision of Justice Clifford Nelson. ("Wozniak #1").

[48] This case involved a mother who was subject to a valid deportation order made by the Minister. The mother was seeking a joint custody order with the father, under the CLRA. She was also seeking an order forbidding the child from being removed from the Province of Ontario. She sought this order as an incident of the custody order pursuant to subsection 21(1) of the CLRA.

[49] The mother was not seeking any form of declaratory relief under IRPA or in respect of the immigration proceedings, other than an order pursuant to paragraph 50(a) of IRPA. She argued that if the best interests of the child were that the child remain in Ontario with both parents, the Minister could not enforce a deportation order which would have the effect of contravening that custody order.

[50] The Minister took the position that

• the mother was subject to a valid removal order;
• the child was a Canadian citizen and not subject to removal;
• The mother had brought the custody application for the collateral purpose of attacking the Minister's valid removal order;
• It was not appropriate for the Superior Court of Justice to assume jurisdiction to make an order under the CLRA, the effect of which would be to frustrate a legitimate removal order; and
• If the mother wished her custody application to be heard she first should have sought a stay in the Federal Court prior to bringing her custody application.

[51] Justice Nelson examined a long line of case law which dealt with conflicts between IRPA and the CLRA. At paragraph 49, he concluded:

This Court will assume jurisdiction over these custody proceedings. This constitutes a ruling with respect to the procedural matter of whether this Court can assume jurisdiction. What remains to be determined, in a second stage of this application, is the substantive question of whether a Court can make a custody order in this case. In this regard, the applicants, Ms. E.B. and Mr. M.W. must establish that

(a) there is a genuine lis with respect to custody; that is, that there is some basis upon which the Court, having assumed jurisdiction, can then make an order in respect of custody; and

(b) that there is a genuine issue with respect to non-removal; that is, that the applicant Mr. M.W. and the respondent Ms. E.B. can demonstrate that there is a real risk that the child might be removed from the jurisdiction, such that an order for non-removal could be made by virtue of the Children's Law Reform Act.

[52] Wozniak #1 was simply the first hurdle for the mother. The ruling allowed the Court to assume jurisdiction; but before it was prepared to go any further, the mother then had to establish whether there was a genuine lis, namely, whether there was a real risk that the child might be removed from Ontario.

[53] This led next to Wozniak v. Brunton, [2004] O.J. No. 939 (S.C.J.). ("Wozniak #2")

[54] At paragraph 13 of that case, Justice Nelson identified the following three issues:

The issues on this motion are as follows:

1. Is there a genuine issue between the parties with respect to custody?

2. How should the Court deal with custody and access in the face of a deportation order?

3. How should the Court address a request for a non-removal order in this case?

[55] Subsequent to the Court's decision in Wozniak #1, the parents had separated under acrimonious circumstances. Justice Nelson found that there was a genuine issue with respect to custody, rather than a manufactured issue intended as a collateral attack on the deportation order.

[56] However, on the specific facts of that case, Justice Nelson found that there was no real issue about access to the child. At paragraph 20, he concluded that it was not necessary to make an access order and that

it is inappropriate to make an order that is unnecessary and might well interfere with the deportation order

[57] With respect to the third issue, the mother sought a non-removal order. All parties agreed that were the Court to make a non-removal order, it would likely stay the deportation order until the mother's H&C application could be heard in the Federal Court.

[58] Ultimately, Justice Nelson disallowed the request for a non-removal order, stating at paragraph 23:

A non-removal order operates only to prevent either parent from removing the child from the jurisdiction. This type of order should not be made lightly nor should it operate in such a way as to prevent the Minister from enforcing a deportation order.

[59] The case of J.H. v. D.A. concerned a mother and a daughter who were citizens of St. Lucia. They were ordered deported after their refugee claim was rejected. The mother applied for permanent residence in Canada on an H&C application, but that application did not have the effect of staying the deportation order.

[60] As a result, the mother brought a motion for custody of her two daughters and she also sought a non-removal order.

[61] The motions judge granted temporary custody to the mother and also made an order prohibiting the removal of both children from the Province of Ontario.

[62] The Minister appealed the non-removal order.

[63] The appeal was heard by Justice George Czutrin. At paragraphs 24 and 25 of his reasons, Justice Czutrin set out the Minister's position on the appeal:

[24] The Minister submits that the motion's judge should not have assumed jurisdiction over what was genuinely an immigration matter. The Minister suggests that the true purpose of the mother's motion was to enable her to remain in Canada until her H&C claim was decided. The circumstances and the evidence leading up to her motion for custody support this assertion.

[25] The Minister submits that the motion's judge should not have assumed jurisdiction over what was genuinely an immigration matter. The Minister suggests that the true purpose of the mother's motion was to enable her to remain in Canada until her H&C claim was decided. The circumstances and the evidence leading up to her motion for custody support this assertion.

[64] At paragraphs 32 and 33, Justice Czutrin distilled the mother's position:

[32] The mother submits that the motion's judge appropriately assumed jurisdiction in this case, because there was a genuine family matter that required determination by the Court. The motion's judge found that the mother's sole motivation in bringing her motion was to secure the best interests of her children, and where the paramount purpose of a custody application is to have the Court determine whether the relief requested is in the best interests of the children, there is a genuine lis with respect to custody.

[33] The mother submits that where questions of custody or child welfare arise, the CLRA applies and is not ousted by the IRPA. In fact, she claims that the Ontario Court of Justice was the only judicial or administrative body considering the best interest of the children at that stage. The mother submits that the Ontario Court of Justice should assume jurisdiction over a custody issue in these circumstances, even if its order might effectively stay a removal order under the IRPA. To do otherwise would be to ignore the best interests of the child, and the mother is entitled to choose a legal venue that would best consider the interests of her children.

[65] On the facts of the case, Czutrin J. stated at paragraph 43:

[43] While the Ontario Court of Justice has jurisdiction over custody matters between competing parenting plans, there was no urgent custody matter between the parents except for the urgency created by the immigration process.

[66] In the result, Czutrin J. granted the appeal and overturned the non-removal order issued by the motions judge, stating at paragraph 64:

[64] The issue before me is whether the motion's judge had the jurisdiction to make the order that temporarily stayed the removal order pending consideration of the H&C claims. I find that he did not. The motion's judge committed material errors in [page530] wrongly assuming jurisdiction of an immigration proceeding; circumventing a legitimate application of law using private custody litigation; filling a "legislative gap" in the IRPA; and exceeding his jurisdiction by effectively precluding the mother's removal from Canada by ordering that J not be removed from Ontario.

[67] The mother appealed Justice Czutrin's decision to the Ontario Court of Appeal. The Court of Appeal dismissed the mother's appeal. At paragraph 23 the Court stated:

[23] The purpose of non-removal orders under the CLRA is not to frustrate the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation but to prevent parents from removing children from the jurisdiction in contested family law proceedings: see Wozniak v. Brunton (2004), 1 R.F.L. (6th) 429 (Ont. S.C.), at para. 23; Varvara v. Constantino, [2005] O.J. No. 861 (Q.L.), at para. 33. It is not open to applicants scheduled to be removed by federal immigration authorities to use the family Courts to stay in Ontario "under the guise of determining [the] best interests of a child": Augustin v. Canada (M.P.S.E.P) and Leonty (27 February 2008), Toronto 07/FA/014805 (Ont. S.C.), at para. 9.

[68] The Court of Appeal made other comments which I believe are relevant to the present case before this Court. At paragraph 24:

24. The relevant paragraphs of the [non-removal] order were aimed not at the parents of the child but at the respondent Ministers pending the outcome of the H&C application. The CLRA should not be used to frustrate the IRPA. The IRPA and related legislation is the forum in which to address immigration and related claims.

[69] At paragraph 25, the Court stated:

25. In any event, even if the motions judge's order was restored, recent jurisprudence from the Federal Court of Appeal, the Court charged with the primary responsibility of interpreting the IRPA, indicates that the CLRA order would not affect a s. 50(a) statutory stay of the removal order. In Idahosa v. The Minister of Public Safety and Emergency Preparedness, 2008 FCA 418, Evans J.A. on behalf of a unanimous Court, held at para. 59:

[p]aragraph 50(a) does not apply to a provincial Court's order awarding custody to a parent of Canadian-born children for the purpose of delaying or preventing the enforcement of a removal order against the parent, when there is no lis respecting custody that is unrelated to the removal.

[70] And finally, at paragraph 27, the Court stated:

27. The reasoning in Idahosa is consistent with the Ontario cases which indicate that non-removal orders under the CLRA should not be granted for the purpose of frustrating removal orders in immigration proceedings.

[71] An example where the Court did find a genuine lis in a custody dispute is the case of Canabate v. Ayala, 2010 ONCJ 54, [2010] OJ No. 4156, a decision of Justice Stanley Sherr.

[72] In Canabate, the mother was in a high conflict relationship with the father and she started a CLRA custody proceeding prior to the Minister making a removal order.

[73] The Minister was put on notice and fully participated in the trial. The Minister opposed the making of a specific access order or a non-removal order in the CLRA proceeding.

[74] Justice Sherr found on the evidence that a structured access order was required. He also found that there was a genuine lis respecting the proposed non-removal order, as the mother had threatened to take the child out of Canada, to Argentina, thereby frustrating the child's relationship with the father.

[75] Justice Sherr concluded that this genuine lis conferred jurisdiction on the Court to make the non-removal order in the CLRA proceeding. He did so because he found that the lis was real. It was not manufactured with the primary intent to defeat the Minister's removal order.

[76] It is noteworthy that Justice Sherr did not make a specific order under paragraph 50(a) of IRPA. Instead, he stated at paragraph 60:

Whether or not the applicant will be deported will be determined according to immigration legislation. The appropriate decision makers will have the benefit of this decision, which reflects findings regarding Joshua's best interests in the family law context after a contested hearing, in which the Minister fully participated. The Minister may decide to defer the removal of the applicant pending the determination of her humanitarian and compassionate application. It may or may not be determined that a family Court decision, where there is a genuine lis with respect to issues of access and non-removal of a child, will invoke the operation of paragraph 50(a) of the Immigration and Refugee Protection Act. The deportation may still proceed. These issues are for others to decide. This Court is not interfering with this process.

[77] In other words, in looking at the interplay between IRPA and the Court's jurisdiction to make a non-removal order in the CLRA proceeding, Justice Sherr made it clear that he was not making an immigration determination. As he noted, the ultimate determination whether the parent would be deported, was a decision that would be made by the Minister or the Federal Court (if appropriate). Instead, Sherr J.'s decision to make a non-removal order was based on the existence of a genuine lis about custody and access.

[78] A similar approach was taken by Justice Roselyn Zisman in Doyle v. Gebon, 2016 ONCJ 17, where she found that there was a genuine issue between the parents which required the Court to make a non-removal order in the context of a CLRA proceeding, independent of any immigration considerations.

[79] In the interplay between immigration removal orders and CLRA or CYFSA cases, not every case focuses solely on a single issue to determine whether a lis – or more than just a single lis – exists.

[80] It is important to understand that the significance of whether a particular lis exists in the CLRA or CYFSA proceeding is how the existence of that lis impacts on an existing deportation order.

[81] In the case of Martin v. Royal, [2012] OJ No.1585, the mother was facing deportation to Hong Kong. She applied for custody. The father also applied for custody and sought specified access and non-removal orders under the CLRA.

[82] The Minister was added as a party and was permitted to make submissions at trial.

[83] Justice Lucy Glenn found that there was a genuine lis about the custody issue. But she found there was no genuine lis concerning the non-removal order, because there was no evidence that either parent had the intention of removing the child from Canada, apart from the operation of the deportation order.

[84] The significance of that case is that there were two primary issues. But the issue where the Court found a lis to exist – custody – was not the issue which impacted the ultimate enforcement of the Minister's removal order.

[85] In the result, Justice Glenn made a custody order in favour of the mother and a specified supervised access order that would terminate if the mother was deported.

[86] I take from these cases, the following principles:

(1) The purpose of custody and access non-removal orders under the CLRA, or protection orders (which include supervision orders) made under the CYFSA must not be to frustrate a removal order for persons who have been found ineligible to remain in Canada under IRPA.

(2) Instead, the purpose of these orders in the interplay of Ministerial removal orders is to determine whether there is a lis in those CLRA or CYFSA cases, and to make orders which logically flow from the lis, based on the law and evidence in each case, and independent of any immigration issues.

(3) Paragraph 50(a) of IRPA will not apply to a Family Court order made under the CLRA or a supervision order made in a child protection proceeding under the CYFSA, unless there is a genuine lis unrelated to the Minister's removal order.

[87] In other words, if the Court order in the other proceeding arises from a genuine dispute between the parties – a real lis – then the Minister's deportation order should not be enforced if the effect of that enforcement would be to contravene the order made in the other proceeding.

[88] With that background, the starting point for the discussion in this case, is the determination whether there exists a genuine lis before the Court in this child protection proceeding, independent of the immigration proceeding.

3.1.3: Does a lis exist in the child protection case before this Court?

[89] In my view, and for the reasons which follow, the nature of child protection proceedings and Court orders made in respect of those proceedings, all constitute a genuine lis between the parties.

[90] Distilled in its most basic form, when the society has reasonable and probable grounds to believe that children are at risk of harm, the society will typically commence a Protection Application, naming the parents as respondents. The society is the applicant in that proceeding. The parent(s) is the respondent. At that stage, there can be little doubt that there is a lis before the Court.

[91] The proceeding continues to wend its way through Court. The Court makes various orders – including supervision orders which the Court made in this case. The lis doesn't just disappear at some point; rather, it continues so long as the child protection proceeding remains alive and before the Court.

[92] Pursuant to subsection 101(1) of the CYFSA once a child is found to be in need of protection, the Court shall make an order from various possible alternatives set out in the CYFSA. One of those alternatives is a supervision order. A supervision order requires the Court to place the child in the care and custody of a parent (or another person), subject to supervision by the society, for a term of not less than three months and no longer than 12 months.

[93] The terms and conditions which are part of any supervision order are imposed by the Court based on what the Court determines are in the best interests of the child, having regard to the ongoing protection concerns for that child. The authority for the imposition of such terms arises from subsection 101(7) of the CYFSA.

[94] In the present case, the latest supervision order made by the Court on January 9, 2019 contained the following terms:

1. Mother to cooperate with the Society and [she] shall follow through with reasonable recommendations and referrals made by the Society and/or other service providers, particularly in relation to supportive services for the children and herself.

2. Mother shall allow the Society worker(s) private access to the children in the home, in the community and/or at the Society's office as may be requested.

3. Mother shall make herself available for both scheduled and unscheduled home visits by the Society's worker(s).

4. Mother shall advise the Society in advance of any change in her address or telephone number, and/or of any change in the number or identity of persons residing in the family home.

5. Mother shall follow through with any recommendations made by school staff in regards to Ki..'s academic needs.

6. Mother shall sign consent forms allowing the Society to obtain and exchange information with collaterals with whom she and the children are involved, including but not limited to probation officer, school, family doctor(s), and counsellors.

[95] As I noted earlier, the status review of this supervision order was set for June 26, 2019, which was prior to the expiry of the pre-existing six-month supervision order.

[96] The society issued its Status Review Application on June 10, 2019.

[97] Pursuant to subsection 113(8) of the CYFSA, the issuance of that Status Review Application had the effect of maintaining the pre-existing supervision order in full force until the disposition of the Status Review Application.

[98] In the same way that there was a lis at the time of the commencement of the society's Protection Application, that lis continued as the protection proceedings remained before the Court; and it continued as the Court made various supervision orders, including the supervision order dated January 9, 2019. And that lis continues today.

3.1.4: The impact of the Minister's removal order on the supervision order

[99] The OCL argues that, on its face, the terms of the supervision order would be impossible to carry out if the mother and the child were removed from Canada.

[100] Clearly, on its face, terms 1-3 and 5-6 (above) of the existing supervision order could not be carried out if the mother were removed from the society's territorial jurisdiction.

[101] Because of this, the OCL argues, the effect of the Minister's removal order would be to contravene the supervision order made by the Court on January 9, 2019.

[102] In the case of Children's Aid Society of Toronto v. A.F., [2013] O.J. No. 4165, this Court had occasion to consider whether a proposed plan by the society to place the children with a relative in Jamaica fell within the scope of the CFSA. Specifically, the society had proposed a plan whereby the children would be placed with a relative in Jamaica for a "2 to 4+ week test drive".

[103] The Court expressed a number of concerns about this proposal, including the legal/jurisdictional concerns. At paragraph 55, the Court stated:

The case of Children's Aid Society of London & Middlesex v. C. (F.E.) 2001 Carswell Ont 4613 (Ont. S.C.J.), is a decision of Justice Grant Campbell. That case involved an application by the Ontario society to place the child with the father in New Brunswick, and it raised the issue whether the Court in Ontario had jurisdiction to make such an order even though it would involve the removal of the child from Ontario. The Court concluded it did have the authority to make such an order. However, in the course of the discussion about children being placed outside the jurisdiction of the Ontario Courts, Justice Campbell had this to say, beginning at paragraph 54:

There is a great difference between transferring a child within one country where the violation of a Court order may be punished under s. 127 of the Criminal Code and transferring a child completely away from the authority and control of Ontario and Canada. . . . [transferring a child out of Canada] constitutes a greater enforcement complication than a transfer between provincial geographic territorial jurisdictions of Ontario Societies, or even between the provinces of Canada.

[104] The OCL also relies upon Children's Aid Society of the Regional Municipality of Waterloo v. M.J.D., where the Court stated at paragraph 86:

The evidence of R. LeRush, senior immigration officer with the Department of Immigration, was that Ms. M.J.D. would not be deported until all the Court proceedings involving the children were over. The Department of Immigration would then review its position whether she would be deported. If the children were placed with her under her supervision, it was unlikely that she would be deported since the children's aid society could not supervise her parenting of the children in a foreign county. If the children were placed with Mr. D.R. with the mother having supervised access under the supervision of the society, the case would be stronger for deportation but the same concern about the consequences of deportation were present. If she was given custody without society involvement, there was a distinct possibility of deportation since she could take the children with her. However, the Department of Immigration, regardless of the outcome, would have to review its position on the deportation of Ms. M.J.D. after the end of all Court proceedings regarding the children. The Department of Immigration was sensitive to the adverse publicity that would result from the deportation of a mother with two children either remaining in Canada or being deported with her.

[105] Importantly, it was the Minister's delegate in that case who recognized the impossibility of the society supervising the mother's parenting of her children if she were to be deported to another country.

[106] Both these cases inform the Court that the society would have jurisdictional challenges in carrying out the terms of a supervision order if the persons who are subject of that order are outside of Canada.

[107] However, what neither of these cases say, is that the Court has the legal authority to order the subjects of a supervision order to remain in Canada in the face of a removal order made by the Minister.

[108] The A.F. case did not deal with a pending deportation order.

[109] And the M.J.D. case only discussed the Minister's reluctance to seek to enforce a removal order in the face of an existing supervision order.

[110] The OCL also relied upon Children's Lawyer v. N.N.D., [2014] OJ No. 6396, a decision of Justice Carolyn Jones. In that case, the OCL, rather than the society, commenced a Protection Application on behalf of the mother and her children. The mother was a citizen of Granada who had been residing in Canada without legal status since 2004. There were three children born after her arrival in Canada, all of whom were citizens of Canada. The Minister sought to remove the mother from Canada, and the issue arose whether the mother could be deported. The OCL frankly acknowledged that it had commenced the Protection Application as a direct response to the Minister's removal order.

[111] At paragraph 40 of her reasons, Justice Jones stated:

All parties to the proceeding are aware that pursuant to Section 50 of the Immigration Statute [IRPA] the removal order pertaining to the mother will be stayed or will not be implemented if an order granted in this proceeding will be directly contravened by the enforcement of the removal order. This would be the effect of Section 50 of the Immigration Statute given that the Minister has been given the opportunity to make submissions in this proceeding.

[112] Justice Jones went on to state at paragraph 54:

Thus it would be possible that in the exercise of the Court's jurisdiction under the Child and Family Services Act to address issues of risk to a child that the Court may impose terms on a parent, and if that parent were subject to a removal order, circumstances may arise where terms of a supervision order may be directly contravened by enforcement of the removal order.

[113] However, on the facts of that case, Justice Jones found that there did not exist reasonable and probable grounds to conclude that the children were at risk of harm. Accordingly, she dismissed the Protection Application.

[114] The net result of that dismissal was that any comments pertaining to whether the supervision order acts as an automatic stay of the Minister's removal order were strictly obiter.

[115] None of the foregoing cases stands for the proposition that a supervision order made by the Ontario Court of Justice acts as an automatic stay of the removal of an individual under IRPA.

[116] In order to decide this, it is necessary to consider what is the essence of the supervision order in this case and then decide whether the nature and purpose of that order conflicts with any removal order made by the Minister.

[117] The paramount purpose of the CYFSA is set out in subsection 1(1):

The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

[118] As I noted earlier, the Court having jurisdiction over the children in the child protection proceeding, found the children to be in need of protection on February 18, 2015. More specifically, the Court found the children were

likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[119] In order to protect the children from that harm, the Court made a supervision order, followed by a series of further supervision orders based on the evidence before the Court that there were ongoing protection concerns for the children and that continued Court and society oversight was necessary to mitigate those protection concerns.

[120] As discussed earlier, the latest supervision order, made on January 9, 2019, contained six terms, all of which were intended to address the ongoing protection concerns for these children.

[121] The society, and the supports facilitated by the society are all that is available to ensure the children are protected from any further harm. Specifically, the Court in making the supervision order determined that if these supports were not put into place, and if the society and the Court did not remain present to oversee the mother's care and custody of the children, the children would once again be at risk of harm due to poor parental supervision or the mother's "pattern of neglect".

[122] Accordingly, the Court must ask how it would be possible to protect these children if the mother and the child(ren) were removed from Canada.

[123] As I noted earlier, it would be impossible to protect the children and to carry out the terms of the supervision order, on the face of those terms.

[124] The essence of the supervision order is such that it would be defeated in its entirely if the mother and the child were no longer present in Canada.

[125] In effect, then, a supervision order would simply cease to exist in any substantive form were the Minister to enforce the deportation order.

3.1.5: Effect of the Court's supervision order pre-November 27, 2019 – No automatic stay of the Minister's removal order

[126] Would the supervision order, in and of itself, act as a bar to deporting the mother and the child from Canada?

[127] In my opinion, prior to November 27, 2019 the answer is no, for the following reasons.

[128] On its face, the existence of a genuine lis in the context of the child protection proceeding and the supervision order made in that proceeding would be directly contravened by the Minister's removal order.

[129] However, in the present case, there is no evidence that the Minister was "given the opportunity to make submissions" at the time the supervision order was made. In fact, the Court record informs the Court otherwise.

[130] A review of the Justice Sager's endorsement dated January 9, 2019, when she made the current supervision order, reveals that Sager, J. made the supervision order on a 14B chambers motion form to which was appended a Statement of Agreed Facts (SAF) which contained the necessary evidence to support the requested supervision order. That SAF was signed by the mother, the society and counsel for the OCL – both fathers having been noted in default.

[131] In other words, the supervision order was not made in the Courtroom; it was not made in the presence of counsel for the Minister and, accordingly, the Minister was not able to even request the opportunity to make submissions prior to the Court making that order.

[132] Because of this, the supervision order made on January 9, 2019 was made without the "opportunity to make submissions", a necessary precondition forming part of paragraph 50(a) of IRPA.

[133] I must therefore conclude that in the particular circumstances of this case, the supervision order did not act as an automatic bar to the enforcement of the removal order, prior to November 27, 2019, the date on which the Minister did appear in Court and made comprehensive submissions. I will return to these submissions shortly.

[134] I wish to be clear, however, the sole reason this Court has concluded that the supervision order initially made on January 9, 2019 did not act as an automatic stay of the Minister's removal order is because the Minister was not given an opportunity to make submissions at the time the supervision order was made.

3.1.6: Post-November 27, 2019 – An automatic stay of the Minister's removal order is created

[135] As I discussed earlier, the essence of a supervision order is the necessity for the society to supervise the parenting of the children and to ensure that whatever supports and conditions are necessary to do this, are properly in place and capable of being utilized.

[136] The society can only carry out the Court-ordered supervision if the parent and the children are within the society's territorial jurisdiction.

[137] The requirement for the children and the parent to remain within the society's territorial jurisdiction – and the Court's jurisdiction – while not specifically stated in the terms of the supervision order are an essential component of the supervision order.

[138] Had counsel for the Minister been in Court when Justice Sager granted the supervision order on January 9, 2019, and had the Minister been given the opportunity to make submissions on that date, in my view, the granting of the supervision order would then have acted as a bar to the enforcement of any removal order made by the Minister.

[139] That is because the requirements of paragraph 50(a) of IRPA would have been fully met.

[140] All of that said, the Minister did choose to attend Court on November 27, 2019 at which time the Court gave the Minister an unfettered opportunity to make whatever submissions counsel deemed necessary.

[141] The Minister filed copious materials, including affidavits, documents, factum and brief of authorities.

[142] The Court placed no time limits on argument for the Minister's counsel. The motion lasted a full day in its entirety, approximately half of which was taken by the Minister's counsel.

[143] The Minister argues that any submissions which it has made on this motion were made in a vacuum because of the lack of full disclosure.

[144] The Minister recognizes the existence of the privacy provisions under section 87 of the CYFSA. However, the argument goes, those privacy provisions, in and of themselves, prevent the Minister from obtaining full disclosure of the society's file and therefore having a full understanding of the child protection issues before the Court. The Minister argues that these restrictions which are imposed on the Minister's submissions is contrary to what is implied by paragraph 50(a) of IRPA.

[145] Accordingly, counsel for the Minister argued, while counsel was afforded the opportunity to make submissions, those submissions were not meaningful.

[146] The Court finds little merit to this argument for several reasons.

[147] First, the Minister has been represented by counsel in the child protection proceedings since at least May 16, 2017.

[148] The Minister's counsel would have been privy to everything that was said and done inside the Courtroom during counsel's various attendances in the past two years.

[149] Second, an examination of the documents included in the Minister's material on this motion reveals that the Minister obtained many Court documents in the course of the child protection proceedings.

[150] Some of these Court documents go back as far as 2015.

[151] The Minister acknowledges that as far back as 2014 the mother advised the immigration official at a pre-removal interview that she was involved in a child protection proceeding.

[152] The Minister further states:

Between December 7, 2015 to the present, [mother] has attended multiple pre-removal interviews and provided updates including Family Court documents regarding the child protection matter ….The CBSA has been advised that the Ontario Court of Justice continues to extend the supervision order….

[153] In addition to the Court documents, the Minister also filed in support of his submissions many dozens of pages of documents which are directly related to the child protection proceedings.

[154] In total, the affidavit of Pamela O'Hagan, the Inland Enforcement Officer attaches more than 200 pages of documents, including child protection Court documents and other documents obtained from the mother.

[155] Third, if the Minister believed he did not have enough documents pertaining to the child protection proceedings, he could have brought a motion at any time prior to the present motion pursuant to subrule 7(5) of the Family Law Rules (FLR) to be added as a formal party to the child protection proceedings and to obtain more extensive disclosure.

[156] The Minister did not bring that motion until the return of the society's present motion, at which time the Minister withdrew his motion to be added as a formal party to the child protection proceedings, upon hearing of the consent of the other parties that the Minister should have standing on the society's motion, and thus be permitted to make full submissions on that motion.

[157] It was also open to the Minister to bring a motion under subrule 20(5) of the FLR for further disclosure from the society or the other parties. However, the Minister chose not to bring such a motion.

[158] None of the foregoing suggests that either the mother or the society has been secretive about the child protection proceedings or that they specifically withheld documents from the Minister which the Minister may have requested or would have requested had the Minister been so advised.

[159] It is disingenuous for the Minister to argue that submissions on this motion were made in a vacuum and without sufficient disclosure.

[160] For these reasons, the Court cannot conclude that the Minister has somehow been deprived of an opportunity to make meaningful submissions on this motion.

[161] As part of the Minister's submissions, counsel argued that the continuation of the supervision order was not necessary, that the supervision order was simply a repeat of previous supervision orders without any meaningful change.

[162] By arguing that the supervision orders made since 2015 have "maintained similar conditions", the Minister seems to suggest that it is pointless from a child protection perspective to make repeated supervision orders.

[163] The Minister went even further in this argument, urging the Court to conclude that the opposite parties were acting in bad faith, essentially colluding in the making of supervision orders for the sole purpose of defeating the Minister's valid deportation order.

[164] The Minister argued that if this Court were to approve of such actions by making a non-removal order, it would open what is colloquially known as the "floodgates" to similar actions in child protection proceedings.

[165] Dealing first with the floodgates argument, I find there is little merit to this suggestion. This bare, speculative statement is made without any legal or factual basis. It suggests that a Court would be incapable of distinguishing fact from fiction, incapable of determining genuine child protection cases from, essentially, fabricated child protection concerns.

[166] The Minister's expertise is in addressing immigration issues pursuant to IRPA and any other relevant immigration-related statutes. The Minister has no expertise in deciding whether a child is in need of protection, what the evidentiary basis for such determinations are, and the considerations the Court is required to look at in deciding what kinds of orders must be made following a finding that a child is in need of protection.

[167] It is the Court, and the Court alone which is mandated to make supervision orders if such orders are necessary having regard to the best interests of children, in the context of protecting those children.

[168] In determining what is in the best interests of these children, the Court must have regard to subsection 74(3) of the CYFSA, which provides:

Best interests of child

(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,

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) 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,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(viii) 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,

(ix) the effects on the child of delay in the disposition of the case,

(x) 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, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[169] In making the subsequent supervision orders, including the latest supervision order dated January 9, 2019, it must be assumed that the Court acted within its statutory mandate and made those orders having regard to the best interests of the children, based on the evidence before the Court.

[170] It is important to understand that the consideration of best interests in the CYFSA is a risk-based consideration. It is best interests in the context of risk of harm to children. In that respect, best interests under the CYFSA differs from best interests under the CLRA.

[171] It is not for the Minister to somehow suggest that the Court was acting outside of its legal authority or that there was insufficient evidence placed before the Court regarding the best interests of these children.

[172] I find as a fact, on the evidence presented, that the Minister was given ample opportunity to make extensive submissions without any restrictions imposed on the Minister's counsel, an opportunity which the Minister's counsel fully embraced.

[173] Having been given the opportunity to make full submissions on November 27, the Minister cannot now argue that there was no compliance with paragraph 50(a) of IRPA.

[174] I canvassed thoroughly all the submissions of the parties, including the Minister's submissions. Having done so, I conclude on the facts that there is a continuing need for a protection order, more specifically, a supervision order.

[175] I reach that conclusion based on the following uncontradicted evidence before the court, including:

(1) The society has determined that the mother continues to have challenges in respect of her child management skills, to ensure the safety, best interests and wellbeing of the children.

(2) The mother has had, and she continues to have, ongoing anxiety problems which impact on her parenting skills which, in turn, have an effect of the safety, best interest and wellbeing of the children.

(3) The mother continues to see Nurse Practitioner, Joanne Opsteen, at the East End Community Health Centre for mental health support.

(4) The mother continues to attend Aisling Discoveries and counselling programs related to parenting at the Canadian Centre for Women's Education and Development.

(5) While mother has made some gains in learning new parenting strategies, she has not been able to demonstrate adequate parenting skills in dealing with the complex and emerging behaviours and emotions of her children.

(6) The society has recommended that the mother engage in family counselling and therapy with the children to improve family functioning. Additionally, mother has been asked to participate in another parenting program at Aisling Discoveries with a view to strengthening her ability to manage the children's emotional and behavioural challenges.

(7) Most recently, 10-year-old Ke..'s emotional stability has taken a turn for the worse. She has become more anxious and sadder around the possibility of having to leave Canada, the only Country she has ever known. Ke.. does not want to eat. She does not want to get out of bed. These emotions have worsened since the Minister issued the latest removal order with an enforcement date which was set for October 20, 2019. There is now concern expressed by Ke..'s therapist that she may be in the beginning stages of developing suicidal ideation.

[176] This evidence tells the court in the clearest of terms that there is a need for a continuing protection order, in this case, the supervision order dated January 9, 2019.

[177] The continuation in force of the supervision order is something which remains within the power of the Court to maintain, to terminate entirely or to modify in any way, based on what is in the best interests of the child.

[178] Accordingly, there is no longer any need for the Court to make a specific non-removal order as requested in the society's notice of motion.

[179] On all the foregoing, the Court concludes:

• There remains a genuine lis in this child protection proceeding, specifically, that a protection order is required to ensure the safety and wellbeing of the children;

• The mother and child must remain in the Province of Ontario so that the terms of the supervision order can be effectively carried out;

• On November 27, 2019, the Minister was afforded an unfettered opportunity to make full submissions on the issue of the removal of the children pursuant to the Minister's deportation order; and in fact, the Minister's counsel took full advantage of that opportunity;

• The Minister was also afforded a full opportunity to make submissions on the need for a continuing supervision order;

• The Court has concluded that a continuing supervision order is required in order to protect the children; and

• If the Minister were to now proceed with a removal order, the existing supervision order would be directly contravened by the enforcement of the removal order.

[180] In other words, as at November 27, 2019 the supervision order, in and of itself, acts as an automatic stay of the enforcement of the Minister's removal order.

[181] Accordingly, but for the following, there is no need for the Court to decide whether the Court has the jurisdiction to grant a specific non-removal order, and whether such an order should in fact be granted.

[182] However, for greater clarity and, more specifically, in the event another Court decides that I am wrong in finding that the supervision order acts as an automatic stay of the Minister's removal order, post-November 27, 2019, I turn next to whether this Court does have jurisdiction to make a non-removal order.

3.2: Does this Court have jurisdiction to make a non-removal order in the face of the Minister's order to remove the mother and the child?

3.2.1: The initial jurisdictional hurdle

[183] There is a difference between the Minister's position and the position of the opposite parties on this motion. I asked counsel for the Minister at the outset of argument whether the Minister agreed that the Court has jurisdiction to make the non-removal order being requested but that the Minister's position was that the Court should not make that order; or did the Minister take the position that this Court is without any such jurisdiction, quite apart from the merits.

[184] Counsel for the Minister hedged somewhat on this point but ultimately seemed to take the position that the Court does have jurisdiction but that the Court should not make the requested order.

[185] However, it is a well-established principle of the common law that a Court cannot acquire jurisdiction which it otherwise does not have, simply by the parties consenting to that jurisdiction. See for example Rothgiesser v. Rothgiesser.

[186] Accordingly, I must first consider whether this Court does in fact have jurisdiction to make the requested order.

[187] In the present case, the Minister brought a motion, seeking to be added as a formal party to the child protection proceeding. In the alternative, the Minister was content that it be added as a party solely for the purpose of making submissions in response to the society's motion for a non-removal order.

[188] As I noted earlier, the society, the mother and the OCL all consented to the Minister being allowed to make submissions on the motion, and the Minister then withdrew (or did not argue) its request to be added as a formal party to the child protection proceedings.

[189] Accordingly, as I discussed in some detail in the previous section of these reasons, the precondition set out in paragraph 50(a) of IRPA has been satisfied, namely, that the Minister was given an opportunity to make submissions on the motion for a non-removal order. As a result, I conclude that this initial jurisdictional hurdle has been addressed, such that the Court can then move to the next stage of considering the merits of the society's request for a non-removal order.

3.2.2: The UN Convention on the Rights of the Child and the Charter of Rights and Freedoms

[190] The Minister raised a number of specific objections to the society's request for a non-removal order. Before I turn to those objections, I wish to first address an argument raised by the OCL in its factum, and strenuously argued in oral submissions, namely, that the UN Convention of the Rights of the Child (Convention) and the Charter of Rights and Freedoms (Charter) are engaged by this case.

[191] The OCL argues that this engagement forms a basis for the Court to issue a non-removal order.

[192] Specifically, in its factum, the OCL argues:

IRPA must also be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory and that ensures that decisions taken under the Act [IRPA] are consistent with the Charter.

[193] The OCL is also asking this Court to interpret IRPA having regard to certain provisions in the Charter. In its factum, the OCL states:

It is submitted that the application of a federal law that requires the removal of a parent in regard to whom ongoing protection concerns exist, with their children, to a country in which, for all intents and purposes, the children have never resided and have no ties, creates a real risk that the children's physical, developmental and emotional needs will be jeopardized, thus violating their section 7 rights to life and security of the person. In the case of Ke.., it also constitutes a de facto violation of her section 6 rights as a Canadian citizen.

[194] The Convention establishes a number of rights and protections for children for those signatory nations. Some of those rights and protections include:

• The "best interests of the child shall be a primary consideration" (Article 3)

• A child "shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures that such separation is necessary for the best interests of the child" (Article 9)

• Taking all "appropriate legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation while in the care of parents or any person who has the care of the child" (Article 10)

• The views of the child are to be given "due weight in accordance with the age and maturity of the child" (Article 12)

• A child's right for "treatment of illness and rehabilitation of health" (Article 24)

[195] Canada is a signatory to the Convention

[196] Paragraph 3(3)(f) of IRPA provides:

(3) This Act is to be construed and applied in a manner that

(f) complies with international human rights instruments to which Canada is signatory.

[197] In its most distilled form, the OCL argues that the Minister must interpret IRPA in a way which reflects the rights of children, as set out in the Convention and as recognized by paragraph 3(3)(f) of IRPA.

[198] In making this argument, the OCL relies on a number of cases where Courts have held that paragraph 3(3)(f) of IRPA must be interpreted so as to give real meaning to international human rights instruments, which includes the Convention. See for example de Guzman v. Canada (Minister of Citizenship & Immigration, 2005 CarswellNat 4381 (F.C.A.) and Martinez v. Canada (Minister of Citizenship & Immigration), 2003 CarswellNat 3590 (F.C.)

[199] While these cases suggest there may be considerable merit to the OCL's argument, in my view it is not an argument that can be dealt with by this Court. The OCL is asking the Court to do something which – at least on the facts of this case – this Court is without jurisdiction to do, namely, to interpret IRPA.

[200] That is not to say that a Provincial Court can never look at a federal statute to interpret the law. However, the federal statute must specifically provide for a Provincial Court's jurisdiction under that federal statute.

[201] The OCL is asking this Court to interpret IRPA in the context of the Convention provisions. This request for a direct, head-on interpretation of federal legislation, is something which I believe I do not have the authority to do.

[202] If this Court was the Federal Court with authority over IRPA, including the interpretation of immigration laws made under IRPA, I would find considerable merit in the argument made by the OCL.

[203] However, an interpretation of IRPA based on Convention considerations is something that may be undertaken either by the Minister or by any of the parties in the Federal Court, should the occasion arise, not by this Court.

[204] With respect to the Charter arguments, the OCL argues

In considering the application of the Charter to child protection proceedings, the Supreme Court of Canada has held that such proceedings engage interests protected by the Charter. See New Brunswick (Minister of Health and Community Services v. G.(J.)[J.G.], [1999] 3 S.C.R. 46.

[205] That decision by the Supreme Court of Canada is indeed a seminal case. It held that the actions of government purporting to separate a parent from a child affects the security of a person, thereby engaging section 7 Charter rights.

[206] However, that decision was about the entitlement of a parent to obtain funding under the New Brunswick legal aid plan in order to be fairly and fully represented in a Court proceeding where a government agency was seeking to separate the parent from the child.

[207] What that case was not about, was the interpretation of federal legislation by a Provincial Court.

[208] If the thrust of the OCL argument is that this Court should interpret IRPA in a way which is consistent with Charter rights, I reiterate that as a Court of Provincial jurisdiction, this Court has no jurisdiction to interpret IRPA.

[209] I wish to be clear that I am not deciding that the OCL's argument respecting section 7 Charter rights is without merit. Rather, it is an argument that, should circumstances arise, may be more appropriately made in the Federal Court.

[210] If the OCL is also arguing – as it seems to be – that this Court should interpret the CYFSA to give effect to Charter rights, I find that on the particular facts of this case, and for the reasons which follow, it is not necessary for this Court to resort to Charter considerations.

3.3: Should the Court make the requested non-removal order?

3.3.1: The Minister's objections to the Court making a non-removal order?

[211] Counsel for the Minister argues on this motion that a non-removal order should not be made for a variety of reasons.

1. The requested non-removal order is being sought for an immigration purpose rather than for a purpose within the scope of the CYFSA. In effect, the Minister is arguing that there is no genuine lis for the society's requested non-removal order.

2. The supervision order does not contain "express language related to keeping the family in the territorial jurisdiction of the society".

3. The ongoing supervision orders since 2015 have "maintained similar conditions" and the society's within motion "does not include any submissions that explain why the supervision orders continue beyond the statutory maximums found in the CYFSA for supervision orders".

4. The information submitted to the Minister in the mother's request to defer removal is inconsistent with the society's position that the mother requires ongoing supervision in order to protect the children.

5. The society has failed to consider whether there are resources and other options available to the mother in St. Lucia which would assist the family to address parenting concerns.

6. The privacy considerations under section 87 of the CYFSA restricts disclosure to the Minister and therefore prevents the Minister from making meaningful submissions on this motion to satisfy section 50(a) of IRPA.

7. When the removal order was issued in October 2019 the supervision order "had expired according to the terms in the order".

8. The Ontario Court of Justice is not a Superior Court and as such does not have inherent jurisdiction, including jurisdiction over whether and when a deportation order should be enforced.

[212] I will deal with each of these arguments in turn.

#1 – Is there a genuine lis?

[213] I canvassed this issue in some detail previously in these reasons. Accordingly, some of the comments I now make will necessarily overlap that earlier discussion.

[214] As I discussed earlier, the supervision order, in and of itself, requires that the parents and the children remain in Ontario. The lis in this case is the very existence of the child protection proceeding and the orders made within that proceeding, including the supervision orders.

[215] It was the child protection proceeding itself and the fact of the Court having made the supervision order with terms and conditions which created the lis.

[216] Had the parties simply entered into a voluntary arrangement without coming to Court, and without the need for a Court order, there would be no lis. But that is not what happened. Child protection proceedings and ongoing supervision orders have been in place for a number of years. These are orders which have been made by the Court, and which were made independent of any immigration proceedings.

[217] And because of the existence of that lis, I earlier concluded that there was no need for this Court to make a specific non-removal order.

[218] Furthermore, it is important to understand that protection orders (including supervision orders) made in child protection proceedings are very different than custody and access orders made under the CLRA.

[219] A custody order made pursuant to section 21 of the CLRA does not, in and of itself, require that a non-removal order be made. Certainly, the Court has the jurisdiction to make such an order as an incident of custody, but a non-removal order is not a necessary component of all custody orders.

[220] The same can be said of an access order made pursuant to section 21 of the CLRA. Once again, while a non-removal order can be made by the Court as part of an access order, non-removal orders are not a necessary component of all access orders.

[221] That is what distinguishes custody and access orders from supervision orders made under the CYFSA.

[222] The essence of the CYFSA is about protecting children from harm. And one of the tools which that legislation gives to Courts to protect children is the ability to make a supervision order.

[223] The requirement for a parent to remain within a society's territorial jurisdiction is a sine qua non of any supervision order.

[224] The present case is not at all like the N.N.D. case, supra, decided by Justice Jones. In N.N.D. the OCL had brought the Protection Application for the sole purpose of frustrating the existing deportation order.

[225] Rather, this is a child protection case which commenced in 2013, long before the present removal order was made by the Minister on October 20, 2019.

[226] Even if it could be argued that Ministerial removal orders had been made previously and that the October 20th removal order was simply the latest of such orders, this does not in any way undermine the central tenet of what supervision orders are about, namely, the need for the parent to reside within the society's jurisdiction, to enable the Court to determine whether a child is being adequately protected.

[227] The child protection considerations and the resulting Court-ordered supervision orders were made by the Court, independent of any immigration considerations.

[228] The supervision order most recently made on January 9, 2019, and continuing in place to the present, was made by the Court based on evidence presented by the society and the parties in the proceeding.

[229] As I discussed earlier, a review of the undisputed evidence clearly indicates that there is a continuing need for Justice Sager's supervision order dated January 9, 2019, to ensure the safety, best interests and wellbeing of the children.

[230] However, the Minister was not given the opportunity to make submissions at the time the supervision order was initially made by the Court. It was for that reason I concluded that, prior to November 27, 2019, the supervision order did not act as a non-removal order, in and of itself.

[231] Following the issuance of the Minister's removal order, the society served its motion on the Minister, requesting that this Court issue a non-removal order so that the supervision order could remain in effect.

[232] As the previous discussion makes clear, the Court cannot make a non-removal order if the sole purpose of such an order is to frustrate the immigration law.

[233] All the conditions imposed by the Court in the supervision order required the continued residence of the mother and the children to be within Ontario. Simply put, it would have been impossible for the terms of that order to be carried out if the mother and the children were resident outside of Ontario.

[234] Because of this, I must conclude that the non-removal of the children and the mother from Ontario is a necessary incident of the Court's supervision order. Were I not to reach this conclusion, I would be undermining the Court's ability to make orders under the CYFSA, orders which are specifically designed to protect children from ongoing risk of harm.

#2 – Lack of express language in the supervision order

[235] This objection by the Minister overlaps with objection #1, discussed above.

[236] I also touched on this issue earlier in my reasons. Some of the following discussion necessarily overlaps with my earlier comments, given the very nature of what supervision orders are about.

[237] The society's territorial jurisdiction is within the Province of Ontario. The CYFSA is Provincial legislation. The society does not have authority to carry out its mandate outside of Ontario. The terms of the supervision order imply that the mother and the children will continue to reside within the society's territorial jurisdiction.

[238] The lack of express language in the supervision order does not alter in any way the essential requirement that the mother and the children remain within the society's territorial jurisdiction. Were the mother to remove the children from the society's territorial jurisdiction, she would be in breach of the supervision order because that removal would necessarily frustrate the terms of the supervision order.

[239] Accordingly, the supervision order does not require "express language" that the mother and the children remain in Ontario. It is sufficient that the terms of that order make continued residence within Ontario a necessary precondition, to the carrying out of the terms of the supervision order.

#3 – Ongoing supervision orders since 2015 exceed the statutory maximums

[240] The Minister argues that the supervision orders which have been made "exceed the statutory maximums" as provided for in the CYFSA.

[241] Paragraph 101(1)1 of the CYFSA provides:

Order where child in need of protection

101 (1) Where the Court finds that a child is in need of protection and is satisfied that intervention through a Court order is necessary to protect the child in the future, the Court shall make one of the following orders or an order under section 102, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

[242] In terms of any so-called "statutory maximums", the CYFSA mandates that a supervision order must be for a duration not to exceed 12 months. Whatever the duration of that supervision order is, it must then be reviewed upon the expiry of the order.

[243] On that Status Review Application, the Court may make any one of a number of different orders, including a further supervision order.

[244] There is nothing in the CYFSA which either limits or prohibits the number of supervision orders that a Court may make.

[245] Accordingly, the Minister's argument that the Court has exceeded the statutory maximums under the CYFSA is without legal foundation.

#4 – Evidence in the CYFSA inconsistent with the Minister's evidence

[246] The Minister argues that the society's assertion that the mother needs to improve her parenting and child management skills is inconsistent with the documentation which the mother herself has provided to the Minister which, the Minister argues, appears to laud her parenting attributes.

[247] During the course of the immigration proceedings, the mother was asked by the Minister's delegates to attend pre-removal meetings and meetings to provide updates on the status of the child protection proceedings. The mother understandably wanted to present herself in the best possible light, particularly as she was asking the Minister to allow her to remain in Canada based on humanitarian and compassionate grounds.

[248] As part of the mother's ongoing requests of the Minister to be allowed to remain in Canada, she understandably thought it would be helpful to obtain as much community support as possible in order to demonstrate that she would be an asset to Canadian society.

[249] To that end, what did mother do? She obtained letters from as many persons as she could who would provide her with glowing and positive statements. The Minister refers to a number of those letters in its possession which the Minister argues is inconsistent with the society's position that the mother requires ongoing supervision by the society. I will cite just a few of those positive comments extracted directly from the Minister's factum:

1. Letter from M.M. dated July 24, 2007 – "So much about her is admirable ... she deserves to stay in Canada to continue to raise her children with the dignity and continued richness of making new, additive paths through the complexities of social life in Canada."

2. Letter from S.H. – "[Mother] and her children are truly selfless and loving individuals".

3. Letter from Pastor N.S. dated May 26, 2019 – "[mother] and her children are wonderful people with great character and I am proud to know them. [mother] has demonstrated to us that she is a hard worker and has strong parental and leadership skills".

4. Letter from F.C. dated May 21, 2019 – "I understand that [mother] has made mistakes in the past ….Today she is able to help her daughter and grandchild, and they are living together in harmony."

5. Letter from C.S. dated May 20 [sic] – "[mother] has single-handedly raised two amazing, compassionate, diligent and beautiful children"

6. Letter from P.B. dated May 15, 2019 – "We share the gift of motherhood and seeing that her children are older I always turn to her for advice …[mother] has high values and morals for herself and her family and had [sic] some tremendous qualities".

7. Letter from M.R. dated May 21, 2019 – "She is a great mother, sister and friend …[mother] is the kind of parent who puts her children first in everything that she does".

8. Letter from A.S. dated May 20, 2019 – "She is a wonderful person, a wonderful mother and she is my best friend".

9. Letter from W.H. dated May 2019 – "A matriarch to her own children, as well as to the children in the community, [mother] has a gift for interacting with young people and assisting them in bringing out the best of their abilities and personalities".

[250] By their very nature, these letters come from friends and close associates of the mother. Each one of these persons doubtless believes in what they have said. Their intention was to assist the mother in her efforts to remain in Canada. And of course, whatever laudatory remarks each was capable of making was contained in their letters which the mother presented to the immigration officials.

[251] There is no suggestion that any of these persons had in their possession all of the evidence which was the foundation for the child protection proceedings. Even if they did have some of this evidence in their possession, they were writing letters from the perspective of friends and passionate supporters, not from the perspective of highly trained child protection social workers and other individuals trained to perform child protection work by children aid societies. Nor were these letters of support written with the knowledge and evidence that was presented to the Court, which specializes in child protection matters and which is mandated to make child protection decisions based on the evidence presented to the Court in the context of the provisions of the CYFSA and the case law decided thereunder.

[252] If parenting skills and risk of harm to children was solely determined by letters from friends and associates, there would be no need for child protection legislation and child protection Courts.

[253] While these letters certainly speak to mother's ability to have developed friendships within the community, they do not speak to child protection issues, certainly not in the same way that those issues are addressed in the context of child protection Court proceedings.

[254] The Court does not find any equivalency – and therefore, no inconsistency - between the child protection proceedings in this case and the letters of support which the mother managed to garner and to present to the immigration officials.

#5 – Society's failure to consider available resources in St. Lucia

[255] The Minister argues that even if the best interests of the children requires ongoing society supervision and Court oversight, how does the society know that the children's best interests cannot be served by available resources in St. Lucia.

[256] The Minister argues that the society ought to have investigated available resources within St. Lucia and that the society's failure to do so suggests to the Court that the purpose in asking for ongoing supervision orders is to frustrate a valid deportation order.

[257] I disagree. The reason the society never investigated available resources in St. Lucia is because sending the mother to St. Lucia was never part of the society's plan of care. It was never part of the mother's plan of care. It was never part of the OCL's plan of care.

[258] It isn't just about available resources in this case or, indeed, in any case where a supervision order is made. It is about the necessity for supervision. If protecting children was only about available resources, then in every case a society could simply tell a parent to go ahead and avail herself of the resources, regardless of the Province you want to live in, regardless of the country you want to live in and regardless of the need to supervise parenting to ensure that the best interests, protection and wellbeing of the children are maintained.

[259] As I noted earlier in the case of A.F., supra, the society would have a jurisdictional challenge if the mother and her children were residing in St. Lucia.

[260] Societies resort to Court oversight and ongoing monitoring because the parent is either unwilling or unable to avail herself of the resources on her own. She may be unable to find resources; she may be unable to remain consistently involved with available resources; she may take one step forward and one step back; she may need ongoing advice, prompting and encouragement from trained society workers or others, including outside therapists. There are many reasons why supervision orders are made, including the rationale behind the terms and conditions which form part of those orders.

[261] The Minister's suggestion that the mere possibility of available resources in another country is sufficient to allow a deportation order to be enforced ignores the whole point of a supervision order.

#6 – The Minister has been prevented from making meaningful submissions

[262] Earlier in these reasons, I canvassed this argument fully. There is no need to repeat my comments and my findings in respect of this issue in this section of my reasons.

#7 – The Minister's deportation order was made after the expiry of the supervision order

[263] As the Court noted earlier, this assertion is incorrect in law. The supervision order dated January 9, 2019 was for a period of six months. It would have expired on July 9, 2019. However, prior to the expiry of that supervision order, the society issued its Status Review Application on June 10, 2019. That Application was made returnable in Court on June 26, 2019.

[264] And as I also noted earlier, the issuance of that Status Review Application had the legal effect of maintaining the pre-existing supervision order in full force pending the disposition of that Status Review Application.

[265] Simply put, the supervision order did not expire. Nor has it expired to this day.

#8 – No inherent jurisdiction

[266] The issue of inherent jurisdiction was canvassed in J.H. v. D.A., supra, which I examined earlier in these reasons. At paragraph 63 of that decision the Court did note that the Ontario Court of Justice is "not a Court of inherent jurisdiction and as such cannot apply parens patriae jurisdiction".

[267] However, that was a case where the Court – and the Court of Appeal – found that the thrust of the non-removal order which the Ontario Court of Justice had made, was for the purpose of frustrating a deportation order, validly made under IRPA.

[268] Accordingly, while I agree with the Minister that this Court does not have inherent jurisdiction to invoke parens patriae, the opposite parties in this case do not rely on that argument.

[269] Nor is it necessary for this Court to resort to the issue of inherent jurisdiction and parens patriae for its decision.

4: CONCLUSION

[270] I have found no basis for the Minister's objections to the granting of the requested non-removal order.

[271] And for all the reasons I have expressed, the existence of a genuine lis in the child protection proceeding, more specifically in the supervision order made under that proceeding, requires this Court to grant the society's motion.

[272] In summary, I conclude as follows:

(1) There is a genuine lis before the court in the child protection proceeding.

(2) That genuine lis was created immediately upon the commencement of the Protection Application and has continued to this day. It includes all the orders made by the Court in that Protection Application and the Court orders made in the subsequent Status Review Applications, including the current supervision order.

(3) In these reasons, I have confirmed the necessity of that supervision order continuing in force, based on the evidence presented to the Court in this motion.

(4) The Minister has been given full opportunity to make submissions on paragraph 50(a) of IRPA and for that reason, and subject to the following, the Court is not required to now make a specific non-removal order.

(5) The supervision order is for a valid purpose, namely, to protect the children from risk of harm.

(6) On its face, that supervision order would be contravened were the Minister to seek to enforce the removal order. For that reason, the supervision order acts as an automatic stay of the Minister's removal order, post-November 27, 2019.

(7) However, for the reasons discussed, I make that non-removal order for greater clarity.

(8) The Court makes the non-removal order for the sole purpose of ensuring that the supervision order is carried out for the best interests, protection and wellbeing of the children, as mandated by the CYFSA.

[273] To be clear, the Court is not interpreting IRPA and is not ruling directly on immigration matters. More specifically, in making this non-removal order, the Court is not intending to create any residency rights for the mother and the child Ki.. under immigration legislation. Any such determination will have to be left to the Minister or, if appropriate, the Federal Court.

[274] There will be an order as requested, specifically prohibiting the mother and the child Ki.. from leaving the territorial jurisdiction of this Court.

[275] I wish to thank all counsel for their well-organized written and oral advocacy in this day-long motion.

Released: December 19, 2019

Signed: Justice Robert J. Spence