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
Date: August 11, 2020
Court File No.: C40-19
Ontario Court of Justice
Parties
Between:
Brant Family and Children's Services (o/a The Children's Aid Society of Brant)
Applicant
– And –
S.M.
Respondent
– And –
R.T.
Respondent
– And –
J.M.
Respondent
Before: Justice K.A. Baker
Motion Date: August 7, 2020
Endorsement Released: August 11, 2020
Endorsement
BAKER, J.:
Relief Sought
[1] This is a Form 14B motion brought by the Applicant Society, seeking the following relief:
An Order that should the Respondents S.M. and R.T. wish to participate in this Hearing they shall be required to file Answer(s) and Plan(s) of Care on the Children's Aid Society of Brant, the Agent for the Office of the Children's Lawyer and J.M. by October 5, 2020.
An Order that this endorsement and the draft letter attached as Exhibit 'A' to the Affidavit of Taylor Coulson shall be delivered to the Respondents by mail.
An Order that should Answer(s) and Plan(s) of Care not be served on the parties by 5:00 p.m. on October 5, 2020, the Respondent(s) shall be noted in default at the next hearing date on October 8, 2020.
An Order that if the Respondents are noted in default at the next hearing date, the matter shall be resolved in accordance with Paragraph 1 and 5 of the Statement of Agreed Facts attached as Exhibit 'B' to the Affidavit of Taylor Coulson on the next hearing date of October 8, 2020.
An Order that the issue of costs shall be adjourned.
Such further and other relief as this Honourable Court may advise and deem just.
The Agreed Statement of Facts filed with this motion contemplates an order pursuant to section 102 of the CYFSA, placing the two subject children into the custody of J.M. with access to the parents.
Background and Context
[2] The impetus for this unusual motion arises from the current public health emergency of COVID-19, and the legislative response to that situation.
[3] Shortly after the pandemic was declared, the Ontario government issued a series of Regulations suspending various time limits under, inter alia, the Family Law Rules.
[4] The most recent of these is Ontario Regulation 73/20, issued June 5, 2020. Section 2 of the Regulation addresses the time limits required for any step in the proceeding. It reads as follows:
"Period of time, steps in a proceeding: Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended, and the suspension shall be retroactive to Monday, March 16, 2020. O. Reg. 73/20, s. 2; O. Reg. 258/20, s. 2."
[5] The Regulation thus effectively suspends all time requirements under the Family Law Rules, including that for delivery of responding pleadings, subject to the discretion of the court.
[6] In this matter, the Respondent parents were personally served with the Status Review materials on May 15, 2020. In the ordinary course, their time for serving and filing materials would have expired on June 15, 2020. The Applicant Society would typically then seek to have the Respondents noted in default and to have the matter proceed on an uncontested basis. Even with the presumptive suspension of the time limit, it would be available to the Applicant to seek to have the Respondents noted in default, relying upon the court's residual discretion.
Issues with the Applicant's Proposed Approach
[7] Rather than requesting that the court exercise its discretion to lift the suspension, however, the Applicant proposes that fresh time lines be imposed on the Respondents. The Applicant further proposes that the court render a prospective or conditional order that if the Respondent(s) do not file Answers by the required date, then they shall be noted in default.
[8] It seems to me that there are problems associated with proceeding in this fashion. First, Subrule 33(3) provides that a court may lengthen the time set out therein only if the best interests of the child require it.
[9] Generally, it is, of course, in the best interests of children if their parents participate in the litigation. But if parents refuse to engage with the process, important decisions about children should not be unreasonably delayed.
[10] There are also pitfalls associated with prospective/conditional orders, such as proposed by the Applicant. The Family Law Rules do not contemplate prospectively noting a Respondent in default. The court would wish to consider the circumstances at the time immediately prior to the order's request, to ascertain whether there was an explanation for the failure to meet the obligation to file pleadings.
Proper Approach to Lifting the Suspension
[11] It therefore seems to me that the correct way to approach this matter is to determine whether it is appropriate for the court to exercise its discretion now to lift the presumptive suspension of the parents' time to serve and file Answer(s) and plan(s) of care.
[12] This remains relatively uncharted waters, and I am not aware of any jurisprudence precisely on point. Courts will almost certainly be challenged to delineate the various factors which must be considered in determining where it is appropriate to lift the suspension.
[13] This however is a relatively clear case for exercise of the court's discretion.
Factors Supporting Exercise of Discretion
[14] The children have resided with their maternal uncle, J.M., for eight months. They are ages 16 and 12 respectively. The children have unequivocally voiced their wish to remain with their uncle and, at this point, to have no contact with the Respondent father. The mother remains in a relationship with the father. Both children are thriving in their uncle's care. It is clearly in the children's best interests that the litigation be brought to conclusion.
[15] The order contemplated by the Agreed Statement of Facts is clearly in the best interests of the children.
[16] The parents are not engaging with Society workers. They have not participated in services to address the concerns. The father has not even troubled himself to attend the access visits that were previously set up. Neither parent participated in the teleconference hearing of the first return of the Status Review. There is no indication whatsoever that the court service restrictions or the public health emergency itself have impaired the parents in preparing and filing Answer(s) and plan(s) of care.
[17] This is not a situation where the parents have demonstrated an interest in the proceedings and a desire to engage. It is instead a situation of the parents being indifferent to the litigation and choosing not to participate in it. It is not a situation where the public health emergency and the circumstances arising from it have impeded the parents' ability to participate in the process.
Costs
[18] I turn now to the claim for costs to be adjourned. The Applicant has been the successful party. However, the presumptive entitlement to a contribution to costs does not apply in a child protection case or to a party that is a government agency. Although the Applicant may be technically a non-profit corporation, it is, in practice, effectively a state agency.
[19] In any case, there is nothing in the evidence to establish why this is the very unusual case where a parent should be ordered to contribute to the costs of a child protection agency. Neither is there any particularization of the claim whatsoever.
Final Order
[20] Accordingly, final order to go:
The respondent parents S.M. and R.T. shall be noted in default.
Final order to go pursuant to paragraph five of the Agreed Statement of Facts.
No costs.
Dated at Brantford, Ontario
This 11th day of August 2020
The Honourable Justice K.A. Baker