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: October 22, 2020
Court File No.: C11630-2020
Between:
Catholic Children's Aid Society Applicant
— AND —
TM (mother) VF (father of SF) WO (father of AO and IO) Respondents
Before: Justice Roselyn Zisman
Heard on: October 15, 2020
Reasons for Judgment released on: October 22, 2020
Counsel
- Marshall Matias — counsel for the applicant society
- Paul McInnis — counsel for the respondent mother
- Gary Gottlieb — counsel for the respondent VF
- Lauren Speers — counsel for the respondent WO
- Katharina Janczaruk — counsel for the Office of the Children's Lawyer, legal representative for the children AO and IO
Decision on Motion
Zisman, J.:
Facts and Background
[1] This is a motion by the Respondent VF for an order that the Status Review Application with respect to the mother and WO and their children AO and IO and with respect to the mother and VF and their child SF be split into two cases, to be heard separately, pursuant to Family Law Rules 1, 2 (2) (3) (4) and 12.
[2] AO is 9 years old, IO is 7 years old and SF is 5 years old.
[3] WO is opposed to the splitting of the cases. All other counsel are not opposed.
[4] Counsel for VF filed an affidavit of his law clerk in support of the motion.
[5] Counsel for the mother filed an affidavit of his law clerk that attached the report of Michelle Ngy, an investigator with the Office of the Children's Lawyer (OCL) with respect to an outstanding proceeding between the mother and WO in the Superior Court of Justice (SCJ). Although the OCL is not formally before this court it provided me with relevant information. An email from the trial coordinator in the SCJ was also attached confirming that the trial between the mother and WO is scheduled to proceed on February 1, 2021 for 24 days.
[6] WO filed his own affidavit opposing the order being sought.
[7] Counsel for the society and counsel for the children filed no materials, made no submissions and simply stated that they were not opposed to the splitting of the two cases.
The Child Protection Context
[8] This motion is brought in the context of an outstanding Status Review Application with respect to all three children. The society is seeking an order of a further 6 month supervision order with terms that the children remain in the care of the mother and with terms that include that VF have no contact with AO and IO, that he not be left alone with SF and that he not attend at the mother's primary residence.
[9] The society became involved with this family due to VF being accused of and pleading guilty to two counts of accessing child pornography and one count of making child pornography. The investigating police officers advised the society that they found videos and pictures on VF's home and work computer. These included 136,000 pictures of child pornography which included full sexual contact among children and adults. In addition, there were six clips of VF's neighbours' child urinating in VF's bathroom. He had previously given this child gymnastics lessons. VF's laptop had been propped up in the bathroom to capture the child's anus and vagina and there was a video of him training the child where he positioned her in ways to capture her genital area.
[10] With respect to a series of these pictures of one child being sexually violated, VF had re-labelled the pictures with the neighbour's child name and wrote that she "would love this, I hope she asks me to do this to her."
[11] On December 14, 2016, VF was sentenced to a further 8 months in jail. Cumulatively he spent 2 years in custody. As part of his sentence he was sentenced to a prohibition order for 10 years to 2026 that included conditions that he have no contact directly or indirectly with any person under the age of 16, unless supervised by a person the court considers appropriate, except for his child SF and then only with the approval of the mother.
[12] VF was further charged and pleaded guilty on January 23, 2017 to 3 charges of breach of his recognizance and received a 2 year probation order. Specifically, these charges related to VF being around the children at Canada's Wonderland, the Toronto Zoo and a park next to the mother's home.
[13] There was a consent protection finding that all 3 children were at risk of harm but only on the basis of section 37 (2) (l) of the Child and Family Services Act that is, on a consent finding.
[14] In the Statement of Agreed Facts, almost all of the facts underlying the criminal charges were stroked out and VF only admitted to the fact that he had pleaded guilty to charges with respect to possession of and making child pornography. There is an inclusion of the fact that VF completed a Sex Offender Treatment Program at the Marasa Clinic and that he was deemed to be at low risk of reoffending.
The Parallel Superior Court Proceeding
[15] To complicate matters at the time that the Protection Application was commenced there was an outstanding SCJ proceeding between the mother and WO with respect to parenting issues regarding their children AO and IO.
[16] Due to the commencement of this proceeding, the domestic proceedings in the SCJ were automatically stayed.
[17] However, in order to permit the parenting issues between the mother and WO to be determined in the ongoing SCJ proceeding on October 10, 2018 I requested that the stay be lifted and that proceeding proceed.
[18] The stay was subsequently lifted and an updated report from the Office of the Children's Lawyer was ordered. As indicated that case is now scheduled for trial.
Connecting Issues
[19] The connecting facts that join the two fathers and their respective children in this child protection proceeding are that the children share the same mother and the issue of what risk, if any, VF poses to the children. There is also an issue with respect to all children as to whether the mother can be relied upon to protect the children.
Arguments for Splitting the Cases
[20] It is submitted on behalf of VF that his rights to privacy are at stake and if the cases are not split there is a risk of dissemination of his criminal history thereby jeopardizing his family's and his privacy and materially affecting his rehabilitation efforts and his successful reintegration into society and also the privacy rights of his daughter. This is stated as a fact in the affidavit by counsel's law clerk whose affidavit is relied upon for this motion. No evidence to support this position was provided.
[21] It is also submitted by VF and supported by the mother that there are already protections with respect to WO's children namely, that VF is not seeking any contact with AO and IO, that there is a restraining order in the SCJ and there is a criminal prohibition order.
[22] It is further submitted that if the cases are not split that WO will seek to relitigate the issues in this court that will be litigated in the SCJ or resolved on consent in that court.
[23] It is further submitted on behalf of VF that as a result of WO being a party to the proceedings with respect to VF that he is entitled to all disclosure with respect to VF's criminal proceedings and that this has no relevance to his case with the mother as VF is not seeking access to his children.
Arguments Against Splitting the Cases
[24] On behalf of WO it is submitted that being a party to the child protection proceedings with respect to SF is his only method of obtaining relevant information about the risk to his children as a result of the ongoing relationship between VF and the mother.
[25] On behalf of WO counsel clarified that his concerns relate not only to VF having contact with his children but also him having access to their home because of his past breaches. Further, he is concerned that the mother strongly supports VF who she had allowed to care for SF for the entire day while she was at work despite the nature of his criminal charges that were outstanding at the time.
[26] It is submitted that WO is not a party who is entitled to notice if VF applies for a further variation of his 10 year prohibition order imposed as part of the criminal proceeding.
[27] Further, in the OCL investigation VF did not give consent for Ms Ngy to speak to the police, crown attorney or the children's aid society so that the information received by WO with respect to any risk posed by VF is limited.
Applicable Legal Principles
[28] Rule 2 of the Family Law Rules gives considerable direction regarding the conduct of proceedings. Courts have a duty to deal with cases justly, and to actively manage cases. Its duty includes ensuring that the procedure is fair to all parties; saves time and expense and deals with cases in ways that are appropriate and proportionate to their importance and complexity, within an overall view of available resources.
[29] FLR 12 (5) simply states that:
If it would be more convenient to hear two or more cases, claims or issues together or to split a case into two or more separate cases, claims or issues, the court may, on motion, order accordingly.
[30] The decision of whether to split cases is a serious procedural issue. It potentially has serious implications procedurally, substantively and raises evidentiary issues.
[31] The decision whether to split issues in a case or split cases is fact specific. I was not provided with any child protection cases where this issue was raised or any other case law where this issue was considered.
[32] There is a considerable body of case law in the context of splitting issues with respect to setting aside domestic contracts.
[33] In the case of Simioni v. Simioni, Justice Quigley provided a comprehensive analysis of the legal principles and relevant considerations for splitting issues within a claim to set aside a domestic contract.
[34] However, the general principles are applicable to the issue of splitting cases in this child protection proceedings. He stated that provided that if no real or meaningful prejudice is caused to either party, the court has the power to split a case, should there be clear time and expense benefits to be gained.
[35] At paragraph 16 of the decision he goes on to state:
Nevertheless, it is equally important to remember that the splitting of a trial effectively denies the fundamental principle that as far as possible, multiplicities of proceedings are to be avoided, and thus the power to split a case should be regarded as one that is narrowly circumscribed and to be exercised in only the clearest of cases - in cases that exhibit the exceptional merit that calls upon the Court to exercise its inherent power: Court of Justice Act, section 138; Elcano, above; Carreiro (Litigation Guardian of) v. Flynn, [2004] O.J. No. 3117 (Ont. S.C.J.).
[36] Accordingly, the onus is upon the party seeking to split the cases to satisfy the Court on a balance of probabilities that if granted, severance will result in the fair, just, expeditious and least expensive determination of the proceeding on its merits.
[37] Further, in the context of a child protection proceeding, such a splitting or severance of the cases would ensure that the interests of all the children are protected.
Discussion
[38] I find that splitting the cases will not result in fairness to all parties or protect the interests of AO and IO and will not save time and expense.
[39] I find that VF's concerns about his privacy rights being violated must not override the ability to WO to be able to be privy to all evidence with respect to any risk that VF may pose to his children.
[40] It is understandable that WO continues to be concerned about the mother's judgement with respect to continuing to have a relationship with VF knowing that he was charged with possession and making child pornography that included taking surreptitious recordings of his young neighbour's genitals.
[41] Further, the mother has not only continued in a relationship with VF but is now pregnant with another child as a result of that relationship. In view of this relationship and the mother and VF wish to "normalize" their relationship it is quite conceivable that VF would request a variation in his prohibition order and that the mother would permit him to move back into her home.
[42] In the Status Review Application before the court wherein the society is seeking a further 6 month supervision order, the mother and VF are opposed to that order.
[43] WO supports an order for a further supervision order. If the society changed its position with respect to SF, there would be no opposition to a termination which would then permit VF to have access to SF without any supervision and permit him to attend or even reside in the home. There would be nothing to prevent VF from using that decision to request a further variation to his criminal prohibition order.
[44] With respect to AO and IO, WO would continue to pursue a supervision order. There is a possibility that if both cases are not resolved that there would be two trials and those trials being heard by two different judges who could come to different conclusions.
[45] The protection issues with respect to all the children relate to VF. I do not agree that splitting the cases would result in a saving of time and would unduly complicate the competing claims. The court can and will control the proceedings and not permit counsel on behalf of WO to relitigate parenting issues that are litigated in the SCJ. It may very well be that the decision or agreement of the mother and WO in the SCJ will simply be incorporated into any decision made in these child protection proceedings.
[46] I note that the recommendations of Ms Ngy in the OCL report state that they are based on the fact that VF will have no contact with AO and IO, that the orders in place to protect them against access remain in place and that the mother and VF do not violate those orders in any way. There is a recommendation that VF follow all of the conditions and/or instructions related to access to AO and IO such as the child protection order, prohibition order and that the mother and WO follow all recommendations of the society workers.
[47] However, at present the terms of supervision are contested by VF and the mother. It appears from the OCL recommendations that there is an assumption that the supervision order will continue. It is not clear from the OCL report that the investigator was aware that there is no agreement for ongoing supervision.
[48] Although there is a restraining order made by Justice Paisley on August 1, 2017 in the SCJ proceedings, there is some confusion if this is a temporary or final order. The issued and entered order states it is a temporary order whereas the endorsement states it is a final order. Accordingly, it is possible that the mother in the SCJ trial may take the position that there be no restraining order.
[49] Further, VF could at any time bring a further motion to vary the terms of the criminal prohibition order without notice to WO. As VF did not provide his consent to permit contact with the Crown Attorney, investigating police officer or even the society, Ms Ngy had limited information about him. Further, it indicates that VF is not forthcoming with relevant information with respect to any risk of harm to WO's children.
[50] There was a previous order made on consent on June 7, 2018 that any information from the child protection proceeding cannot be divulged in the SCJ. Therefore, VF's privacy rights are protected unless there is a motion in the SCJ for disclosure or society witnesses are summonsed for that trial. Sealing orders can always be obtained in domestic trials with respect to any sensitive information.
[51] This is not the only case where there is a mother before the court and there are multiple fathers and where there are different protection concerns. This case is therefore not unique. It is also not unusual that the different fathers are aware of information with respect to each other. It is also not unusual that there is sensitive information as this is a child protection proceeding where issues regarding physical, emotional and sexual harm are unfortunately common place.
[52] In fact, the usual procedure in child protection proceedings is that there is one application with multiple children regardless of how many respondents this may necessitate.
[53] The court is able to control its own process to ensure that proceedings are fair to all parties. In this case, it is important that the proceeding is not just fair to VF but to WO and to all the children.
[54] The central and common issue is VF's criminal convictions, his rehabilitation and whether he continues to pose a risk to any child. This determination of ongoing risk applies to his contact with all of the children and the same evidence would be required if the cases were split.
[55] I do not agree that there would be any savings in judicial resources or that it would be more expeditious to split the cases. No specific evidence was presented on this issue. There seems to be an assumption that counsel for WO would be permitted to litigate parenting issues that are not protection issues such as which school the children should attend.
[56] If the child protection proceedings are not settled, then the court can and will determine what issues are to be litigated at a trial and what evidence and witnesses will be permitted. The court can also order that any issues that are resolved in the SCJ be incorporated into terms of ongoing supervision, if such an order is made by the court.
[57] At this time there is no final order from the SCJ, it may be that after a decision is reached in that proceeding (either on consent or after a trial) that there will be no ongoing need for a supervision order in this court with respect to AO's children.
[58] But until that time, WO should have access to all information about the mother and VF as it impacts the potential risk of harm to his children.
[59] There is a pending motion by the society for a further independent risk assessment of VF. If the cases are split, then WO would not be served with the motion and supporting materials, would not be present to hear submissions or permitted to make submissions with respect to this motion. I fail to see how this protects the interests of his children.
[60] I am surprised that the society counsel and OCL counsel took a position not opposing the splitting of these cases. It would have been helpful if they had explained the reason for their positions to the court.
Conclusion
[61] In conclusion, I find the counsel for VF has not met the high onus on him to support a splitting of these cases.
[62] There will be an order as follows:
1. The motion by the Respondent VF to split the case into two cases in this Status Review Application is dismissed.
[63] As this is a child protection proceeding there is no presumption that costs are payable even to a successful party. However, if counsel for WO is seeking costs, brief cost submissions, not to exceed 3 pages with any offer to settle and bill of costs attached, are to be submitted to the trial coordinator's office within 30 days and any response on the same terms, within 30 days of receipt of the cost submissions. Any reference to case law should be referred to in the cost submissions with reference to the page and paragraph being relied upon. No copies of the case law should be provided.
Released: October 22, 2020
Signed: Justice Roselyn Zisman