WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

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: 2020-08-04

Court File No.: Toronto C57964/12

Between:

Catholic Children's Aid Society of Toronto Applicant

— AND —

I.K. (father) and S.K. (mother) Respondents

Before: Justice Robert J. Spence

Heard by Teleconference on: July 28, 2020

Reasons for Judgment released on: August 4, 2020

Counsel:

• Ms. Karen Ksienski — counsel for the applicant society
• The respondent parents in person

Judgment

R.J. SPENCE J.:

1: INTRODUCTION

[1] This is a motion brought by the parents in which they seek to set aside the final order of Justice Carolyn Jones granted on March 3, 2020. The final order ("final order") was granted following an uncontested trial on a twice-amended child protection application issued by the society, pertaining to the child I.J.K. ("child"), born […], 2018. In that final order, Justice Jones placed the child in extended society care, with no access to the parents.

[2] Initially, the parents had issued a Notice of Appeal of the final order, but after some discussion/exchange of information between the parents and the society, the parents decided to request a date to argue the within motion instead of proceeding with the appeal.

[3] The parents' request to proceed with this motion was made by a 14B motion form to Justice Jones on March 18, 2020. In a detailed written endorsement issued April 3, 2020, Justice Jones granted the parents' request for this motion to proceed. More specifically, Justice Jones ordered:

a. The parents' motion to be scheduled for May 21, 2020 to be heard by another judge of the court, by teleconference;

b. The relief to be claimed shall be limited to a claim to set aside the final order; and

c. Certain procedural/filing orders, including timelines for the parents and the society.

2: THE PARENTS' FORMAL MOTION

[4] In their Notice of Motion dated April 15, 2020, the parents seek the following by way of substantive relief:

An Order to restore all parental access visitation to the child urgently, and grant custody order to parents in the [sic] pursuant to the court endorsement dated April 3, 2020 to be address [sic] given the head of all relief claimed by the Mother of the leave motion of March 18, 2020 granted on March 30, 2020 that set aside the final order of C.J. Jones.

[5] I am treating this motion as a claim for relief as set out by Justice Jones in her endorsement dated April 3, 2020.

3: HISTORY

[6] It is helpful to view the parents' present motion contextually. More specifically, the parents have a lengthy child protection history regarding not only this child, but two older children as well.

[7] The history reveals the parents' familiarity with child protection proceedings, including litigation processes pertaining both to trials as well as appeals.

[8] This is the parents' third child who is the subject of child protection proceedings. Their first child, born in 2012, was taken into the society's care at the age of four months. He was ordered into the extended care of the society by Justice Geraldine Waldman following a trial in October 2014. The parents were represented by counsel at that trial.

[9] Justice Waldman's order was unsuccessfully appealed to the Superior Court of Justice.

[10] The second child was born in May 2015. She was apprehended at birth. The parents did not respond to or participate in that proceeding. The child was ordered into the extended care of the society, without access to the parents by Justice James Nevins in August 2015.

[11] Seven months later, the parents launched a status review application pertaining to the second child. They sought the return of the child to their care, subject to society supervision. This resulted in a four-day trial in which the parents were represented by counsel. The parents' claims were dismissed by order of Justice Debra Paulseth on November 16, 2016.

[12] The father appealed Justice Paulseth's decision. That appeal was dismissed for delay in June 2017.

[13] The father subsequently launched a status review application in respect of the first child. He failed to obtain the requisite leave, which was necessary as the child had lived with the same foster parent for more than two years prior to the issuance of the application. His application was dismissed. He then sought leave. His leave motion was dismissed.

[14] The father again sought leave to bring a status review application. Justice Sherr dismissed that leave motion.

[15] The father did not accept Justice Sherr's ruling and he filed further motion forms seeking the same relief. In his endorsement dated May 15, 2017 Justice Sherr found that the father's actions in flooding the court with repeated motions amounted to an abuse of the court's process.

[16] This did not stop the father, as he continued to file motions with the court in 2017 until, in November 2017 Justice Sherr dismissed the latest application for status review.

[17] The oldest child was subsequently adopted.

[18] This historical child protection litigation provides a backdrop for the current litigation concerning I.J.K.

[19] The history of the current litigation for I.J.K. is important to understand, as it provides necessary context for the parents' motion to set aside the final order. Beginning at paragraph 28 of Justice Jones' Reasons, she sets out the history of the current litigation, which I extract in the following [my emphasis]:

[28] The child, I.J.K., was brought to a place of safety by the applicant society [Catholic Children's Aid Society of Toronto] on September 26, 2018, following his birth at Humber River Hospital in Toronto. He remained in the hospital until September 28, 2018, at which time he was discharged to a foster home placement.

[29] The society commenced this child protection proceeding on October 1, 2018. On that date, on a motion made by the society, the Hon. Justice Paulseth made a without prejudice Order placing the child in the temporary care of the applicant society. A temporary access Order was granted, also on a without prejudice basis, for access to the child by the parents, in the discretion of the society, a minimum of three times per week. Both parents were present in court when this Order was made on the record, and both had the assistance of separate duty counsel at that time.

[30] Also, on October 1, 2018, the statutory findings in relation to the child were made by the Hon. Justice Debra Paulseth.

[31] The proceeding was next before the court on November 19, 2018. On that date, a motion was before the court, brought by the applicant society, seeking to transfer carriage of the case to the Children's Aid Society of Toronto, as that agency had had substantial prior involvement with the family. The motion was adjourned to January 8, 2019.

[32] On January 8, 2019, neither parent attended court. The case was adjourned to February 27, 2019 for a temporary care and custody motion. The transfer motion was adjourned to the same date. On the return date, the parents attended court, with the father being represented by lawyer, Mr. M. Tubie. An adjournment of the temporary care and custody motion was sought by the parents and was granted. The [Catholic] society's motion to transfer the case to CAST was withdrawn.

[33] On the next court date of March 25, 2019, the parents were present, along with lawyer, Mr. M. Tubie, appearing on behalf of the father. A further adjournment of the temporary care and custody motion was granted to May 13, 2019. Subsequently, the parents sought an adjournment of the May 13, 2019 motion date, which was granted. The case was adjourned to June 26, 2019, and subsequently adjourned, at the parents' request, to July 4, 2019, a date they stated both they and the father's counsel would be available.

[34] On May 7, 2019 the society amended its child protection application to seek an Order that the child be placed in extended society care of the [society]. The society also sought an Order for no access to the child by either parent. As the amended child protection application contained a typographical error, a second amended application was issued shortly thereafter, on June 6, 2019, to correct this error. The twice amended application is the current proceeding before the court.

[35] In May 2019, the society brought a motion for production of third-party records of the Toronto Police Service, in relation to both parents, and for the records of a community agency, COTA, in relation to the mother. This motion was adjourned to address service issues.

[36] Between May 13, 2019 and June 25, 2019, the parents brought multiple motions by way of motion forms. The motion forms were dismissed on June 27, 2019, by the case management judge, the Hon. Justice Carole Curtis.

[37] The motion forms filed by the parents during this timeframe included a 14B motion made by the father, seeking leave of the court to bring a status review application regarding the second child, R.K. The responding party named by the father in his motion form was the applicant society, rather than CAST. In dismissing this motion, Justice Curtis indicated that R.K. was in the extended care of the Children's Aid Society of Toronto, and thus, the proper responding party to the motion was CAST and not the applicant society. As well, Justice Curtis also noted that a motion form is to be used only for matters that are "procedural, uncomplicated or unopposed", and that a motion for leave to bring a status review application, was not of this nature. In her Endorsement, Justice Curtis indicated that if the father wished to pursue this claim, he must bring a notice of motion with a return date in court, with notice to and service upon the proper responding party.

[38] The motion forms addressed by the case management judge during this time period also included two motion forms brought by the mother regarding the oldest child, J.K., also naming the applicant society (rather than CAST) as the responding party. Justice Curtis noted that a similar motion form regarding the oldest child, J.K., had been addressed in an Endorsement of June 10, 2019. Justice Curtis also ruled that, as J.K. had been placed for adoption, the provisions of the Act confirm that no status review application could be brought pertaining to J.K.

[39] The fourth motion form dated June 25, 2019, brought by the parents during this timeframe, was dismissed by the case management judge, on grounds that the relief claimed was not appropriate to the use of a Form 14B motion form, as it was not limited to a procedural, uncomplicated or unopposed matter. Justice Curtis noted that multiple motion forms had been filed by the parents during this time period that were inappropriate to the Form 14B process. She indicated that the claims sought in all of these instances were complicated and would, no doubt, be opposed. Justice Curtis noted that the parents did not understand the proper use of the Form 14B process, and that all future claims made by them on motion should be brought by way of a regular notice of motion with a return date in court, brought on notice, with proper service.

[40] On the July 4, 2019 return date of the proceeding, lawyer Mr. Matthew Tubie, attended court as agent for the father on a limited scope retainer, however the parents were not present. There were two pending motions before the court, the temporary care and custody motion and the society's pending motion for production of the records of the Toronto Police Service pertaining to the parents. The court Endorsement noted that the parents had not attended court, despite the fact that they had requested the adjournment to the July 4, 2019 date and had indicated their availability for that date. The motions were adjourned to July 8, 2019, however, the court noted that the case could not continue to be adjourned. The adjournment was made peremptory to the parents. The court endorsed that the case would move forward, whether the parents chose to attend court or not. The court also scheduled the case for the August 13, 2019 child protection assignment court, to be scheduled for trial.

[41] On July 8, 2019 the parents attended court along with lawyer, Mr. M. Tubie, who was once again acting as the father's agent on a limited scope retainer. The court addressed a request by the father to adjourn the temporary care and custody motion. The adjournment request was dismissed. The two pending motions were subsequently adjourned to July 9, 2019. In the Endorsement of July 8, 2019, the court also confirmed the scheduling of the August 13, 2019 trial assignment court date for the trial.

[42] On July 9, 2019, both parents and lawyer Mr. Tubie were present. The temporary care and custody motion was heard by the Hon. Justice Curtis, and a temporary Order was granted confirming the child's placement in the care and custody of the society. This Order was no longer a without prejudice Order.

[43] The society's motion for production of the police records of both parents was adjourned to August 8, 2019. As well, at the July 9, 2019 attendance, in the presence of both parents and lawyer, Mr. Tubie, the court once again confirmed the August 13, 2019 return date for the child protection trial assignment court.

[44] As noted, the parents did not attend any court appearance subsequent to the July 9, 2019 attendance.

[45] On August 8, 2019 the parents did not attend court, either in person, or by a lawyer or agent. The Endorsement notes that the parents had informed their worker that they would not be attending court for the appearance. This is confirmed by the evidence of society worker, Mr. Asiedu Gyimah. On that date, the society's motion for production of police records was heard and an Order was granted, ordering the Toronto Police Service to produce to the society the police records pertaining to each of the parents. The proceeding was adjourned to the August 13, 2019 trial assignment court, as previously set.

[46] At the August 13, 2019 trial assignment court, neither parent attended court. Mr. Gyimah attested that both parents advised him in advance that they did not intend to attend court for the assignment court appearance. The case was scheduled for an eight-day trial, to commence at the upcoming two-week child protection trial sittings on September 16, 2019. The case was also scheduled for a trial management conference for September 3, 2019.

[47] Neither parent attended court on September 3, 2019 for the trial management conference.

[48] The trial in this proceeding was held on September 16 and 17, 2019. The parents did not attend court on either date. As noted, the father had indicated in his email to the society counsel that neither he nor the mother intended to attend court for the trial.

[49] The child, I.J.K., has now been in the care of the society continuously since […], 2018, two days after his birth, a period of one year and five months.

[20] I will elaborate on some of this background as I address the parents' arguments in the coming section of my reasons.

4: FOUNDATIONAL LAW

[21] Rule 25(19) of the Family Law Rules (Rules), provides [my emphasis]:

CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE

(19) The court may, on motion, change an order that:

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6.

[22] As the word "may" indicates, this Rule confers on the court a discretion to decide whether to grant relief to a moving party.

[23] In Children's Aid Society of London and Middlesex v. E.M.E.E., 2017 ONSC 5292, the court stated, beginning at paragraph 27 [my emphasis]:

[27] Rule 25(19) provides that the court may, on motion, "change" an order where any of the listed circumstances apply. "Change" is defined in r. 2(1):

"Change", when used to refer to an order or agreement, means to vary, suspend or discharge, or a variation, suspension or discharge (depending on whether the word is used as a verb or as a noun).

[28] The definition of "change," while referring to the court's ability to "vary, suspend or discharge" an order, does not explicitly refer to an order being "set aside."

[29] In my view, the words "vary, suspend or discharge" are sufficiently broad to allow for an order to be "set aside" where necessary.

[24] A similar position was taken in Windsor-Essex Children's Aid Society v. T.R., 2014 ONCJ 563, a decision of Justice Barry M. Tobin, although Justice Tobin found that the authority to set aside an order of the court can also come from Rule 59.06(2) of the Rules of Civil Procedure. That Rule states:

59.06(2) A party who seeks to:

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

[25] Justice Tobin referred to case law decided under Rule 59.06(2)(a) at paragraph 21 of his judgment [my emphasis]:

Case law decided under rule 59.06(2)(a) establishes that a party wanting to set aside an order on the basis of new or newly discovered evidence must offer evidence that meets the following conjunctive criteria:

1. The evidence would probably have changed the result at trial;

2. The evidence must be apparently credible; and

3. The evidence could not, with reasonable diligence, have been obtained at the time of the trial.

See Dawi v. Armstrong (1992), 17 CPC (3d), 196 (O.C.G.D.) [affd. (1993), 17 C.P.C. (3d), 196 n (Ont. C.A.)]

[26] However, it is important to keep in mind what Justice Tobin stated at paragraph 23 of his reasons [my emphasis]:

Any decision to set aside the order must take into account the paramount purpose of that Act which is to promote the best interest, protection and well-being of children.

[27] To the foregoing, I would add the Court of Appeal decision in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194. Although this was neither a family law case nor a child protection case, the Court did set out certain factors which courts should consider in deciding whether to set aside a default judgment. At paragraphs 47-50 of the judgment, the Court stated [my emphasis]:

3. Application of the test for setting aside default judgment

[47] The court's ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the order. The approach to be taken to this determination has been considered numerous times by this court. The following draws heavily on the summary of the principles in those cases by Perell J. in Watkins v. Sosnowski, 2012 ONSC 3836, at paras. 19-20 and 23-24.

[48] The court must consider the following three factors:

(a) whether the motion was brought promptly after the defendant learned of the default judgment;

(b) whether there is a plausible excuse or explanation for the defendant's default in complying with the Rules; and

(c) whether the facts establish that the defendant has an arguable defence on the merits.

[49] To this list, I would add the following two factors the court should have regard to, as set out in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd., 2007 ONCA 333, 87 O.R. (3d) 479 (C.A.), at para. 2:

(d) the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

(e) the effect of any order the court might make on the overall integrity of the administration of justice.

[50] These factors are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default.

5: THE PARENTS' ARGUMENTS

[28] The parents raise several arguments in the material they have filed with the court, as well as in their oral presentation. I intend to deal with all those arguments. I have attempted to capture the arguments by categorizing them under the following sub-headings, taken primarily from the parents' written material on this motion:

a. The trial before Justice Jones ought not to have taken place because the proceeding had previously been stayed by the case management judge and, accordingly, Justice Jones was without jurisdiction to conduct the trial;

b. The trial proceeded without notice or insufficient notice to the parents;

c. Both the society counsel as well as Justice Jones consented to the setting aside of the final order;

d. The society counsel, having subsequently withdrawn her "consent" to setting aside the final order was in a conflict of interest, as she had "advised" both the society as well as the parents;

e. The trial is an "example of institutional racism towards persons of colour". The trial which proceeded in the parents' absence was a breach of their rights under the Canadian Charter of Rights and Freedoms; and

f. This court must exercise its discretion to set aside the final order to address the unfairness which resulted from the trial and the final order.

[29] I proceed to an analysis of each of these arguments.

6: ANALYSIS

a. The trial before Justice Jones ought not to have taken place because the proceeding had previously been stayed by the case management judge and, accordingly, Justice Jones was without jurisdiction to conduct the trial

[30] In their written material, the parents state:

On August 13, 2019, [the parents'] proceedings were stayed in an uncontested motion before this court, moved on August 6, 2019.

[31] In fact, the parents did bring a motion returnable August 13, 2019 requesting that the trial be adjourned. The society Family Services Worker (FSW) deposed the following in his affidavit sworn April 24, 2020 [my emphasis]:

[the father] tried to have a motion filed for August 13th at 10:00 a.m. requesting that the trial be adjourned. I have reviewed the society's files and have seen the notice of motion and affidavit sworn by [the father] on August 6, 2019 requesting that there be a motion to stay the proceedings.

I have been advised by society counsel Fatima Husain that she attended court on August 8, 2019 . . . and appeared before the Honourable Justice C. Curtis and on that date both [parents] did not attend court. Justice Curtis also advised Ms. Husain to relay to [the parents] that their motion to stay the proceedings could not be heard on August 13, 2019 at 10:00 a.m., but that on August 13, 2019 at 2:00 p.m. when the Assignment Court was scheduled to occur a court date for the motion could be scheduled. That same day on August 8, 2019 Ms. Husain prepared a letter to be given to [the parents] to relay the comments of Justice Curtis.

[32] I have reviewed Justice Curtis' endorsement of August 8, 2019 in which Her Honour notes that the parents did not attend court. The parents knew of the August 8th court date because the parents, as well as the father's lawyer at the time, Mr. Tubie, were present on July 9, 2019 when the August 8th court date was scheduled.

[33] Accordingly, although the parents did serve the society with their motion seeking to stay the proceedings, that motion was never argued as the parents failed to attend court.

[34] The parents' argument that the proceedings were either stayed or adjourned, fails.

b. The trial proceeded without notice or insufficient notice to the parents

[35] As I noted above, the parents did attend court before Justice Curtis on July 9, 2019. On that date, Justice Curtis heard a contested temporary care and custody motion.

[36] Justice Curtis delivered oral reasons at the conclusion of argument, ordering that the child remain in the temporary care of the society. Justice Curtis then adjourned the proceeding to two dates – first, August 8, 2019 at 12:00 noon and, second, August 13, 2019 at 2:00 p.m. for trial Assignment Court.

[37] The parents did not attend court on August 8, 2019.

[38] Nor did the parents attend Assignment Court on August 13, 2019. On that date Justice Curtis set eight days for trial to begin on September 16, 2019 before Justice Jones.

[39] In her letter to the parents dated August 8, 2019, the society's lawyer Ms. Fatima Husain stated [my emphasis]:

I am writing to advised you that Her Honour Justice Curtis asked me to let you know that she is not sitting in the morning on August 13, 2019 and will not hear any motions that day. This matter returns on August 13, 2019 at 2 p.m. for assignment (trial scheduling) court only. Any motions that have been served and/or filed that are returnable that day will be adjourned to a different day.

[40] The parents responded to the society's August 8th letter by writing their own letter dated August 9, 2019, addressed to Ms. Karen Ksienski. In that letter they stated, in part [my emphasis]:

Please find in the enclosed, we are returning your court materials back to you. Reason being that the kangaroo court you brought us to has refused to accept our own materials from us. That it is only an incompetent or a kangaroo court that will fail to follow the Courts of Justice Act procedures and will not accept material from a respondent in a responding application/proceedings. . . .

That based on the stand the court/your judge has taken and given the fact that the proceeding is now Stayed, you are to stop henceforth sending us any court materials until the court has agreed to accept our own materials from us . . . .

[41] All of this informs the court that the parents were certainly aware of the Assignment Court date of August 13th and they chose not to attend.

[42] On September 3, 2019, Justice Jones conducted a trial management conference. The parents did not attend. In her endorsement of the same date, Justice Jones again noted the trial was to commence September 16, 2019 at 10:00 a.m.

[43] On September 3, 2019, Ms. Ksienski wrote a letter addressed to the parents, which was hand delivered to them. In part, that letter stated [my emphasis]:

Trial is scheduled for September 16th, 2019 to September 25th, 2019. Although the society has made repeated attempts to serve you with materials for the trial, please advise how the society can serve you with the materials.

[44] The society appeared for the start of trial at 10:00 a.m. on September 16, 2019. Justice Jones' endorsement reads as follows:

Amended child protection proceeding scheduled for trial to begin today. The respondent parents are not present – paged at 10 a.m. and subsequently at 10:50 a.m. Trial is to proceed on an uncontested basis. . . .

Court recessed due to power outage in the building and environs. Proceeding adjourned to 17 September 2019 at 10:00 a.m. for CCAS submissions.

[45] The trial continued September 17, 2019 with submissions from the society, following which Justice Jones reserved her decision.

[46] The overwhelming evidence leads to the conclusion that the parents were kept informed as much as possible by the society as to the scheduling of Assignment Court and the scheduling of the trial dates, but the parents simply refused to participate in the proceedings.

[47] The parents' argument that the trial proceeded without notice to them, or with insufficient notice, fails.

[48] Referring to Rule 25(19), the parents are unable to bring themselves within the criteria set out in Rule 25(19)(d) or (e).

c. Both the society counsel as well as Justice Jones consented to the setting aside of the final order

[49] As I noted at the outset, Justice Jones released her decision on March 3, 2020. Notwithstanding that the trial was conducted on an undefended basis, Her Honour's reasons are both extensive and comprehensive.

[50] On March 9, 2020, the parents served on the society their Notice of Appeal of the final order.

[51] In response to the Notice of Appeal, Ms. Ksienski sent a letter to the parents on March 12, 2020, which reads in part [my emphasis]:

With respect to the Notice of Appeal, I believe that the first step that must be taken is for a motion to be heard at the Ontario Court of Justice (47 Sheppard Avenue East). The motion should be to set aside the Court Order of the Honourable Justice Jones, given that the trial occurred on an uncontested basis.

[52] This is the letter that the parents rely upon as support for their assertion that the society consented to an order setting aside Justice Jones' decision. In her affidavit sworn July 13, 2020, the mother deposes:

On March 12, 2020 the Legal Counsel of the Society, Karen Ksienski, wrote to me in a letter and stated that she is in agreement with my decision for the C.J. Jones' order to be set aside in order for the access visits of my husband and I to our child to be reinstated after due consultation with the society's counsel.

[53] A clear reading of Ms. Ksienski's letter leads to no such conclusion. Rather, it is a suggestion by the society to the parents that, procedurally, they should more properly proceed with a motion to set aside the final order rather than launching an appeal of that order.

[54] On March 18, 2020, the parents brought a 14B chambers motion returnable before Justice Jones in which they claimed essentially the same heads of relief that they seek in the within motion.

[55] Justice Jones addressed the parents' 14B motion in a detailed endorsement dated April 3, 2020. In part, Justice Jones stated the following at paragraphs 4, 9, 19 and 21 of her endorsement [my emphasis]:

[paragraph 4] The mother attached to her 14B motion a letter dated March 12, 2020 from legal counsel for the society, addressed to the parents [in which] the society firstly acknowledged receipt of a Notice of Appeal served by the respondent father, seeking to appeal from the final Order. Secondly, society counsel suggested to the parents that prior to proceeding with the appeal, the proper process would be for them to bring a motion to seek to set aside the final Order, as a first step. The jurisprudence has held that an appellant who appeals from an Order granted following an uncontested trial must exhaust his or her remedies in the Court of first instance, before proceeding with an appeal to a higher Court [Justice Jones cited Ketelaars v. Ketelaars, 2011 ONCA 349, [2011] O.J. No. 2009 (Ont. C.A.)].

[paragraph 9] Counsel for the society . . . requested that the mother's motion be scheduled to a date later than March 23, 2020 . . . given that neither parent had filed any motion materials . . . and only urgent matters are being heard by the court at this time [due to Covid-19]. Society counsel indicated her view that that a motion to set aside the final Order granted March 30, 2020 [sic] was not of an urgent nature.

[paragraph 19] Leave of the court will be granted for the mother to bring a motion to seek an order setting aside the final Order of this court granted March 3, 2020.

[paragraph 21] In relation to the claim made by the mother in paragraph 2 of her 14B motion form, seeking an order to resume access visits with the child and for a custody order in favour of the parents, leave of the court it not granted for such a motion to be brought. The final Order has adjudicated these issues on a final basis. Thus, unless the final Order is set aside or is overturned on appeal, these issues have already been determined by the court and are res judicata.

[56] In response to these statements by Justice Jones, the mother swore in her affidavit filed April 15, 2020, in support of the within motion [my emphasis]:

On March 30, 2020 the Court granted the motion to set aside the order of March 3, 2020 by C.J. Jones and the court put it in writing on April 3, 2020.

[57] Justice Jones did not "grant the motion" to set aside. Instead, she gave leave for the parents to bring that motion.

[58] At a teleconference held before me on June 16, 2020, the parents reiterated that they were relying on the society's March 12th letter and Justice Jones' April 3rd endorsement as constituting consents to set aside the final order.

[59] Having read both of those documents in advance of June 16, 2020, I was concerned that the parents were pursuing a futile path with respect to their argument about consent. I alerted the parents to my concern by telling them at the teleconference, and subsequently in my June 16th endorsement, stating:

During the teleconference the court alerted the parents that their reply and their argument on the motion is complicated and that they should obtain legal advice. More specifically, if as the parents state, they are relying on Justice Jones' endorsement dated April 3, 2020 . . . or the society's letter dated March 12, 2020 as somehow constituting a consent to set aside Justice Jones' final order, the court has reviewed those documents and has concluded that there is nothing on the face of either one of them which constitutes a consent to set aside [the order]. The court made these comments to the parents so that they will not be caught by surprise on the next date if they attempt to make that argument.

[60] Despite my attempt to assist the parents by conveying to them what was clearly stated on those documents, the parents persisted in continuing with that argument. In the father's affidavit sworn July 13, 2020, he states [my emphasis]:

The court is not exempted from the parol evidence rule; which states that writing and the language of the written should be clear and unambiguous. That, if the court is of the opinion that Justice Jones document does not constitute a consent, Justice R. J. Spence should spell-out correctly on July 28, 2020 if Justice Jones made an error or mistake on "the face" of paragraph 9 of her April 3, 2020 endorsement. That, in one of the deliberative secrecy and mis-interpretative case law below.

[61] The only "error or mistake" that Justice Jones made at paragraph 9 of her endorsement was a typographic reference to the final order date, stating it to be March 30, 2020, rather than March 3, 2020. However, as the above-noted extracts from her April 3, 2020 endorsement reveal, Justice Jones' discussion focused on whether the mother/parents should be granted leave to bring a set-aside motion, with Her Honour then ultimately deciding, in the clearest possible terms at paragraph [19], to grant that leave.

[62] Nothing in either of the two documents which are central to the parents' arguments about consent, suggests in any way to this court that the society or Justice Jones were consenting to setting aside the final order.

[63] The parents' argument that the society and Justice Jones consented to setting aside the final order, fails.

d. The society counsel, having subsequently withdrawn her "consent" to setting aside the final order was in a conflict of interest, as she had advised both the society as well as the parents

[64] The parents cite the case of Paskar v. Law Society of Upper Canada, 2015 ONLSTH 128 for the proposition that a lawyer cannot act for two parties opposed in interest. This is a well-understood proposition; and any lawyer who is in breach can be disciplined by the Law Society.

[65] The parents argue that Ms. Ksienski, in effect, gave advice to the parents and/or consented to the setting aside of the final order and then subsequently acted against the parents' interests by representing the society in opposing the parents in this motion.

[66] In order to give effect to this argument, the court would first need to find that society counsel had represented the interests of the parents, or that she had taken a position in favour of the parents while, at the same time, representing the interests of the society.

[67] However, society counsel did no such thing. She did not purport to represent the parents' interests. Nor did she purport to consent to their request to set aside the final order. At no time did society counsel do other than represent the society's interests.

[68] All that Ms. Ksienski did was to point out to the parents that, procedurally, they should first exhaust their remedies in the Ontario Court of Justice before proceeding on to an appeal. In doing so, society counsel was acting courteously and professionally towards persons who were legally unrepresented.

[69] The parents' argument that society counsel had placed herself in a conflict of interest, fails.

e. The trial is an "example of institutional racism towards persons of colour". The trial which proceeded in the parents' absence was a breach of their rights under the Canadian Charter of Rights and Freedoms

[70] The parents state:

Section 11 of the Canadian Charter of Rights and Freedoms protect people's legal rights. Every person have [sic] a right to a fair trial. It is discriminating on me [16] for C.J. Jones or the court institution to have conducted a not-present trial ignoring the pending stay of proceeding motion or on a stayed proceeding and my rights that is protected under the Charter.

[71] Section 11 of the Charter pertains to criminal and penal matters. However, that mis-reference notwithstanding, there are indeed principles contained within the Charter and the Family Law Rules, as well as the child protection case law which are intended to guarantee certain rights to parents, including the right to a fair trial.

[72] However, I see no need to discuss in any detail the law pertaining to Charter rights for two reasons.

[73] First, there is nothing in the evidence filed in this motion which suggests that "institutional racism" was a factor in this case. My understanding is that the father originates from Nigeria. However, the father does not draw an evidentiary line between his country of origin and the way in which the proceedings unfolded at trial.

[74] In Justice Jones' 65-page decision, the word "Nigerian" is mentioned only once. By necessity, Justice Jones discussed the child's heritage when she considered the child's best interests under subsection 74(3) of the Act. At paragraph 324 of her decision, Justice Jones referred to the court's statutory requirement to consider certain factors in deciding what is in the best interests of children, including clause 74(3)(c)(iii) of the Act, which provides for a consideration of:

The child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, and the child's cultural and linguistic heritage

[75] In reference to that clause in the Act, Justice Jones then stated [my emphasis]:

The child is of Nigerian heritage on his father's side and Caucasian heritage on his mother's side. The child is Muslim by faith. Placement of the child with the parents would provide the child with a direct connection to his racial ancestry and ethnic origin, his religious creed and his cultural and linguistic heritage.

[76] This is the sole reference to the child's race in the decision. As the highlighted portion of her statement reveals, Justice Jones' reference to the child's race was a statement of fact; nothing about her statement can be interpreted as pejorative, negative or in any way racist toward the parents or the child.

[77] If anything, the opposite is more accurate. When she referred to the child's racial ancestry and ethnic origin, Justice Jones properly noted that the child's placement with his parents would provide him with a direct connection to his racial ancestry and ethnic origin – certainly a positive consideration which would favour the parents, rather than discriminating against them.

[78] The second reason I give no weight to this argument is because the parents are factually incorrect when they state:

It is discriminating . . . to have conducted a not-present trial ignoring the pending stay proceeding motion or on a stayed proceeding.

[79] As I noted earlier, the parents' motion for a stay of the proceeding was not granted. In fact, it was not even argued. The proceeding remained alive and headed toward a trial.

[80] Nor was the parents' motion "pending". The parents did not attend court after July 9, 2019. They did not seek a date to argue their stay motion before Justice Curtis.

[81] The parents' argument that the trial was an example of institutional racism and that it breached their Charter rights, fails.

f. This court must exercise its discretion to set aside the final order to address the unfairness which resulted from the trial and the final order

[82] The parents rely on the following cases to support their argument.

[83] In the case of Children's Aid Society of Halton Region v. R.(C.J.), 2005 ONCJ 514, the child's parents were both deceased. The Halton society issued a status review application and then, without investigating whether there were any other family members for the child, immediately proceeded to court seeking an uncontested Crown wardship order. The court granted that order.

[84] It subsequently came to light that there was an aunt and uncle who had been very much involved in the child's life. The aunt and uncle brought a motion to set aside the Crown ward order and to be added as parties to the proceeding.

[85] Justice Theo Wolder reviewed the facts and the law, including the court's jurisdiction to set aside final orders, and at paragraph 46 of the reasons, he stated [my emphasis]:

I find that the failure to give notice of the status review application for Crown wardship without access to the respondents makes the Crown wardship order null and void against the respondents. Subrule 15(14) combined with subrule 1(7) of the Family Law Rules and rule 37.14 of the Rules of Civil Procedure give this court jurisdiction to set aside the resulting Crown wardship order. . . . Therefore, I find that the Crown wardship order made on 4 August 2005, as a result of the lack of compliance with fundamental principles of procedural and substantive fairness to which the respondents were entitled, must be set aside.

[86] Undoubtedly, the court does have the jurisdiction to set aside a Crown ward order. But in the R.(C.J.) case, the court found that the reason to do so was the society's failure to give notice to the aunt and uncle, persons who might well have been able to present a plan of care for the child. This failure by the society to give notice amounted to a fundamental unfairness which was fatal to the outcome at the uncontested Crown ward hearing.

[87] In the present case, there was no such failure to give notice. Not only did the society do everything it could to keep the parents informed when the parents chose to stop coming to court after July 9, 2019, but Justice Curtis herself cautioned the parents at the July 8, 2019 court attendance when Her Honour stated [my emphasis]:

[at page 7 of the transcript] THE COURT: I just want to be clear. It's never mandatory for anybody in a child protection case to come to court. You can come or not come but not coming doesn't mean that the case is adjourned . . . . Your attendance doesn't affect whether the case goes forward or not.

[at page 11 of the transcript] THE COURT: August 13th we'll set a trial date . . . . The outcome of the temporary care and custody motion – if it proceeds today – doesn't really influence whether or not it should go to assignment court. It goes to assignment court when enough time has passed that it's time for a final decision.

[88] In stating "when enough time has passed", Justice Curtis was necessarily alert to paragraph 122(1)(a) of the Act which prohibits a child under the age of 6 years from remaining in the temporary care of the society for more than one year. When the trial was scheduled to begin on September 16, 2019, the child would have been in the society's temporary care for just 10 days short of one full year. As Justice Curtis properly pointed out to the parents, it was "time for a final decision".

[89] Not only did the trial have to proceed, but the parents had more than enough notice of the trial Assignment Court and the trial dates, having been alerted to this by the society and by Justice Curtis herself.

[90] Accordingly, the fundamental unfairness which arose in the R.(C.J.) case has no applicability to the facts of this case.

[91] The parents also relied on Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316. This case was an appeal from the Divisional Court, respecting several issues. One issue concerned the standard of evidence considered by the trial judge in the society's motion for summary judgment and, in particular, whether the evidence in that motion was sufficient to allow the judge to reach a "fair and just determination on the merits" without a trial.

[92] It was this clause – a "fair and just determination on the merits" - which the parents latched onto in their argument. The parents appeared to argue that when Justice Jones proceeded to conduct the trial in their absence and without their evidence before the court, it was not possible for Justice Jones to reach a "fair and just determination on the merits".

[93] Kawartha does not say that it is mandatory for every child protection case to hear oral evidence from the parents. Instead, it says that the principle of fairness requires the judge to hear from the parents only if the evidence on the summary judgment motion is otherwise insufficient to arrive at a just determination. The case was about summary judgments, not trials.

[94] That said, the need for a fair and just determination on the merits applies equally to trials as well as to summary judgment motions. However, in the present case, the parents made a deliberate choice to not attend the trial.

[95] This choice left Justice Jones in the position of having to decide the case based on the society's evidence alone.

[96] Having made their choice, it is not now open for the parents to argue, in effect: We knew when the trial would be taking place; we were told this by Justice Curtis and the society; we were warned that the trial would proceed with us or without us; and yet we chose not to attend the trial. And now that we have made that choice, it would be fundamentally unfair for the judgment to stand when the trial judge didn't hear from us because the judge could not arrive at a "fair and just determination on the merits".

[97] Summarizing the parents' argument in this way reveals the illogic of their position.

[98] The parents' argument that the trial was unfair, fails.

[99] However, their argument about unfairness, generally, fails for two other reasons as well.

[100] First, the parents have not disclosed any real or meritorious defence to the society's case. And second, the child's entitlement to finality in the litigation is an overarching consideration for the court.

[101] Both of these considerations are captured in the case of Catholic Children's Aid Society of Toronto v. S.(T.), a decision of Justice Heather Katarynych.

[102] In S.(T.), the mother had failed to serve and file an Answer to the society's protection application, the time to do so having long expired. Nor did she respond to the society's motion for interim custody of her child. She stopped attending court after the second appearance in the case. Her interactions with the society had dwindled to near non-existence. The baby had been apprehended by the society shortly after birth. The child was approaching seven months of age. The passage of time was threatening to extend the litigation drift. Finally, the society moved toward a hearing. The mother did not appear. The society's evidence was placed before the court and the court made a finding in need of protection as well as a Crown wardship order.

[103] The mother then moved to set aside the default judgment. One of the grounds the mother cited was lack of notice to her of the hearing date.

[104] Justice Katarynych's comments are helpful, as they provide an understanding of the importance of timeliness for children who are caught up in the web of child protection cases, something which is relevant to the present case.

[105] At paragraph 11, Her Honour stated [my emphasis]:

The procedural issues in this motion are set within a case that substantively must be adjudicated within the paramount objective of promoting the best interests, protection and well being of this particular child. See the subsection 1(1) of Child and Family Services Act, as amended by the Child and Family Services Amendment Act (Child Welfare Reform), 1999, S.O. 1999, c. 2.

[106] At paragraph 15 [my emphasis]:

A significant and ever more prominent consideration in any determination of a child's best interests is the likely effect on the child of delay in the disposition of the case; . . . . Both the Act and the rules governing the case provide strict timelines for the case, all of which are designed to minimize the effect of delay on children.

The primary objective of the scheme for procedural fairness laid out in the Family Law Rules is "to enable the court to deal with cases justly"; see subrule 2(2).

[107] At paragraph 16 [my emphasis]:

Fairness under both the Act and the rules begins with the applicant's duty to give the parent a timely and effective notice of the claims that are being made against her. The purpose of that notice is obvious: to ensure that a parent who wants to be heard on the claims before the court is sufficiently informed about the claims to enable her to place her own case before the court.

[108] At paragraph 40 [my emphasis]:

It does not assist Ms. T.S. to argue that she knew nothing about the February, March, April and June 2001 court dates. The rules place no obligation on an applicant to keep reminding the respondent of the need to defend this application. Although society social workers often keep parents apprised of court dates in child welfare matters, nothing in the Family Law Rules requires that. Its courtesy does not relieve Ms. T.S. of the duty to keep herself informed of future court dates. Ms. T.S. provides no evidence of the efforts that she herself made to keep herself apprised of developments in the court case.

[109] I stop here to note that, as I discussed earlier, the society in this case went to great lengths to keep the parents informed of court dates, including Assignment Court and trial dates.

[110] At paragraph 51 of her judgment, Justice Katarynych stated [my emphasis]:

It is a fundamental principle underlying the rules of court that cases should be determined on their merits, other things being equal, and not be derailed on a technicality. Mere inattention or forgetfulness and inability to give a good explanation for the failure to respond, though relevant to the exercise of the court's discretion, is not necessarily fatal to the motion. What is deserving of particularly close scrutiny in whether the respondent has some merit in her defence, whether there is a triable issue. See Langor v. Spurrell (1997), 157 Nfld. & P.E.I.R. 301, 486 A.P.R. 301, 17 C.P.C. (4th) 1, [1997] N.J. No. 264, 1997 Carswell Nfld 238 (Nfld. C.A.).

[111] There is nothing in the parents' material that tells this court they had a real defence on the merits to the society's case. Instead, the parents' material is replete with their complaints and grievances which I have discussed in these reasons, and which have little or nothing to do with the merits of the case or any possible defence they might have been able to raise had they participated in the trial.

[112] I reviewed carefully the parents' affidavits and their motion record to look for some evidence from which I might have been able to conclude that had the parents participated in the trial they would have been able to mount a defence on the merits. The parents presented no such evidence in this motion.

[113] It is here that I return to the question whether Rule 59.06(2)(a) of the Rules of Civil Procedure has any applicability to the present motion. As I noted earlier, for that Rule to be engaged, the parents would have been required to file with the court "new or newly discovered evidence" which satisfies all three criteria referred to in the Windsor-Essex case, supra.

[114] Not only are those three criteria not satisfied in the material filed by the parents but, in fact, the parents have not satisfied even one of those criteria. There is simply a complete absence of evidence that the parents say they could have relied upon if they had participated in the trial.

[115] Finally, and perhaps the most compelling statement by Justice Katarynych insofar as it pertains to the present case, comes at paragraph 71 of her reasons [my emphasis]:

Inaction by either the society or a parent that results in litigation limbo for the child is precisely the mischief underlying the strict timeframes for these adjudications mandated by child welfare reform. To dislodge the judgment of 29 June 2001 and to send this case to trial would represent a procedural injustice for this child, delaying to an unconscionable degree the substantive justice to which X.S. is entitled. Her best interests, protection and well being cannot be served if further litigation limbo is visited on her. She needs and is entitled to finality in this litigation.

[116] No statement could be more directly relevant to the facts in present motion. The child has now been in the society's care for more than one year and 10 months, almost double the amount of time permitted by paragraph 122(1)(a) of the Act. But for the within motion, I.J.K. would have been free to be placed for adoption months ago. If the court were to set aside Justice Jones' order and reopen the proceedings, it would result in "delaying to an unconscionable degree the substantive justice" to which I.J.K. is entitled. His "best interests, protection and well being cannot be served if further litigation limbo is visited on [him]. [He] needs and is entitled to finality in this litigation."

[117] I return briefly to the Mountain View Farms case, supra. Having regard to all five of the factors listed by the Court of Appeal, the only one which favours the parents in this motion is the promptness with which the parents moved following the issuance of the final order.

[118] None of the other factors favour the parents' position. Most significantly, looking at the wording of factor (d) in the Mountain View case, it would seem more appropriate in this case to substitute the words "potential prejudice to the respondent", with the words "potential prejudice to the child". And in my view, this is the single most important consideration.

7: CONCLUSION

[119] For the reasons discussed, I have concluded that none of the parents' arguments have merit.

[120] As I noted at the outset, the court does have a discretion to decide whether to set aside a final order. However, the parents' evidence placed before the court in this motion does not satisfy the criteria set out in Rule 25(19) of the Family Law Rules, or the criteria set out in Rule 59.06(2)(a) of the Rules of Civil Procedure; nor does it satisfy the criteria in any of the case law authorities which I have discussed.

[121] Most importantly in the court's view, a decision in favour of the parents would visit a fundamental injustice on the child. It is that fundamental injustice to I.J.K. which ultimately stands as perhaps the most compelling consideration in determining the outcome of this motion.

[122] Fairness, the interests of justice and the best interest, protection and wellbeing of the child all require that the parents' motion to set aside the final order of Justice Jones be dismissed.

[123] There will be an order to go accordingly. The society shall immediately prepare the formal order and submit it to court staff, who shall forthwith issue and enter the order. I dispense with the need for the parents to approve the draft order.

[124] This is not an appropriate case for costs.

Released: August 4, 2020

Justice Robert J. Spence

Signed electronically