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: 2020-11-16

Court File No.: Toronto C21604/18

Between:

Jewish Family and Child Service of Greater Toronto Applicant

— AND —

N.S. (Mother) and A.S. (Father) Respondents

Before: Justice Robert J. Spence

Heard on: November 5, 2020

Reasons released on: November 16, 2020

Counsel

Ms. Arthika Srivarapathy — counsel for the applicant society

Mr. A. Sam Zaslavsky — counsel for the respondent mother

Mr. Brian Ludmer — counsel for the respondent father

Decision

R. J. SPENCE J.:

1: INTRODUCTION

[1] On August 27, 2020, the parties appeared before the court by teleconference to argue a summary judgment motion brought by the applicant Jewish Family and Child Service of Greater Toronto (society). In that summary judgment motion the society was seeking a six-month supervision order with the mother with specified terms and conditions for the mother and the father. The society was also seeking an order that the access between Y. (now age 8 years) and the father be at the discretion of the society as to location, duration, frequency, and level of supervision, including whether any access is to take place at all.

[2] Following the conclusion of argument, and upon consideration of the submissions and materials filed, I delivered an endorsement to the parties on August 31, 2020, asking them to consider whether, in the particular circumstances, the society's protection application (Application) ought to be dismissed as an abuse of process, given that there was now a concurrent domestic proceeding ongoing in the Superior Court of Justice.

[3] I invited the parties to file submissions on that issue and I set a date for the hearing of argument.

[4] The parties filed material in which the father argued that the continuation of the society's Application would constitute an abuse of process; the society and the mother argued to the contrary.

[5] At the conclusion of argument, I reserved my decision, which I now set out below.

2: BACKGROUND

2.1 Background leading to the first summary judgment motion

[6] The parties are the parents of a young boy, Y., born September.., 2012.

[7] The parents separated in 2016.

[8] The society's first involvement occurred in January 2016 over concerns respecting allegations of domestic violence within the home.

[9] Shortly thereafter, the society closed its file.

[10] In July 2017, the society re-opened its file over concerns respecting verbal and emotional abuse in the child's presence.

[11] Between October 2017 and February 2018, the parents seemed to be committed to working with the society to address the protection concerns.

[12] In March 2018, Y. was complaining of conflict between his parents. He also told the society that the father constantly blamed the mother for the conflict within the home.

[13] Between April 2018 and June 2018, the father's conduct continued to escalate and, as the court will note shortly, this was having an impact on Y.

[14] In order to address its protection concerns, the society proposed to the parents that they enter into a Voluntary Services Agreement (VSA). The father refused to sign the VSA.

[15] On October 22, 2018, the Superior Court of Justice pronounced a final divorce order granting sole custody to the mother, with access to the father, inter alia, one overnight on alternate weekends, together with holidays as agreed upon by the parents.

[16] On October 30, 2018, the society commenced its Application.

[17] That Application sought a finding that Y. was a child in need of protection pursuant to:

(1) Subclause 74(2)(b)(i) of the Child, Youth and Family Services Act (CYFSA) – failure to care for, provide for, supervise or protect the child adequately;

(2) Clause 74(2)(f) of the CYFSA – the child has suffered emotional harm . . . which results from the actions, failure to act or pattern of neglect on the part of the child's parent; and

(3) Clause 74(2)(h) of the CYFSA – a risk that the child is likely to suffer emotional harm . . . .

[18] The Application also sought an order placing Y. in the care and custody of the mother, supervised by the society for a period of six months.

[19] And finally, the Application sought an order that the father's access to Y. be in the society's discretion with respect to location, duration, frequency, level of supervision and whether the access visits should take place at all.

[20] Following a contested temporary care and custody hearing argued before the case management judge on March 29, 2019, Justice Melanie Sager made a temporary order placing Y. in the care and custody of his mother, subject to society supervision, with certain specified terms and conditions.

[21] Justice Sager also ordered that father's access to Y. be in the society's discretion, as to location, duration, frequency, level of supervision and whether access is to take place at all.

[22] Among the various terms and conditions which Justice Sager ordered, she also required the father to obtain an assessment from a registered mental health professional, to be approved by the society.

[23] Justice Sager made the order for a mental health assessment based on the evidence before her at the time that the father was unable to control his anger towards the mother and would go into rages, in front of Y. And following these episodes he was unremorseful and incapable of considering the harm he had caused or may cause to Y.

[24] Justice Sager concluded that the father was incapable of controlling his anger or that he understood how his uncontrolled emotions negatively impacted on his son. And because of this, the father was incapable of curtailing the offending behavior.

[25] The child continues to remain in mother's care.

[26] Justice Sager subsequently scheduled a summary judgment motion to be argued on the issue whether the child was in need of protection, to be heard by me on November 13, 2019.

[27] The society's summary judgment motion was supported by the mother and opposed by the father.

[28] At the conclusion of argument, the court delivered oral reasons, finding that the child was in need of protection pursuant to Clauses 74(2)(f) and 74(2)(h) of the CYFSA – specifically, that Y. had suffered actual emotional harm and that he was at risk of continuing to suffer emotional harm, as a result of the father's conduct which was directed primarily to the mother, but took place often in the child's presence.

[29] The court found that the father's abusive language toward the mother, his accusations about her and his persistence in blaming her for everything was carried on without regard to the child's presence during his outbursts.

[30] Some of the evidence which was placed before the court in that summary judgment motion, and which the court relied upon in arriving at its decision included the father calling the mother an "asshole" and a "pig of a mother" in front of Y.

2.2: Background leading to the second summary judgment motion

[31] The matter returned before me on December 9, 2019. At that appearance, the society advised the court that access by father was mostly going well and the society was expanding father's access.

[32] The society also advised the court that Y. was reporting the access as positive.

[33] The court was told that the father had yet to comply with Justice Sager's order for a mental health assessment despite the society having provided the father with the names of three potential assessors. The court ordered the father to comply forthwith.

[34] During this attendance, the father's behaviour escalated to the point where he accused the court of acting "fraudulently". When the father refused to act in a civil and respectful manner, the court required the father to remove himself from the courtroom.

[35] The father subsequently brought a motion for the appointment of the Office of the Children's Lawyer (OCL) to represent the child in order to obtain the child's views and preferences. Justice Sager heard that motion on April 29, 2020.

[36] Neither the mother nor the society strenuously opposed the father's motion. However, Justice Sager declined to order the appointment of the OCL because Her Honour found that there was no disagreement between the parties as to what Y.'s views and preferences were.

[37] All parties agreed that Y. loves his father and wants contact with him. So, in that respect, the child's views and preferences were already before the court.

[38] Justice Sager noted that because a finding in need of protection had been made, the court was then required to make a disposition order, including access to father, based on the child's best interests. Justice Sager concluded that because Y. was only seven years old, his age would impact on the weight a court would give to his views.

[39] The amount of contact between Y. and his father would necessarily be driven by what was in the child's best interests, having regard to the potential for further risk of harm. For all these reasons, Justice Sager dismissed the motion for the appointment of the OCL.

[40] On June 18, 2020 Justice Sager scheduled a summary judgment motion to be heard by me on the issue of disposition, and Her Honour set filing timelines for the motion material.

[41] The parties subsequently filed extensive material. The mother supported the society's motion, while the father opposed the motion.

[42] As I noted at the outset of these reasons, the court heard the summary judgment motion on August 27, 2020 and reserved judgment.

3: CONCURRENT PROCEEDINGS IN THE SUPERIOR COURT OF JUSTICE

[43] In the meantime, unbeknownst to the court, the mother had brought a motion to change the divorce order of Justice Paisley (SCJ motion) which had granted unsupervised overnight access to the father.

[44] The SCJ motion came before Justice Hood on February 25, 2020 at which time Justice Hood granted mother leave to proceed with the motion to change, notwithstanding the existence of the child protection proceeding. He ordered the SCJ motion file to be sealed, as well as a publication ban which accompanies all child protection cases.

[45] The parties argued the substantive motion on August 12, 2020 before Justice Kristjanson. On that date, the parents were each represented by their present counsel and the society was represented by its present counsel.

[46] The mother sought an order varying Justice Paisley's divorce order by changing father's access from unsupervised access, to access which would be supervised by her, and in her discretion as to frequency and duration, including whether access would take place at all.

[47] Counsel for the society advised the court that the society was in support of mother's motion and that the society would seek to withdraw its protection application if the mother's relief were granted in the SCJ motion.

[48] On August 17, 2020, Justice Kristjanson released her decision. Her Honour found there to be "exceptional circumstances and a pressing and immediate urgency to vary" the order of Justice Paisley, as there had been material changes since Justice Paisley made his final order on October 22, 2018. Justice Kristjanson noted the following as constituting material changes in circumstances:

(1) The existence of the child protection proceeding and the finding that Y. is in need of protection which, in turn, poses "real and significant concerns" that the existing access order would pose a "significant risk of harm" to Y.'s safety and well-being;

(2) The society's continuing concern that there are issues regarding the safety and well-being of Y. if he were to have unsupervised access with his father;

(3) Y. has not had overnight visits since the making of Justice Paisley's order, and the order does not reflect the access situation of Y. and father for the past two years;

(4) There have been significant periods of only supervised access since 2018, with restrictions expanding and contracting with changes in father's behaviour;

(5) The criminal charges and threats against society workers by the father in May 2020;

(6) Anger management issues acknowledged by father; and

(7) Father's failure to undergo the court-ordered mental health assessment, and the failure to pursue counselling/therapy with a licensed mental health professional.

[49] As to mother's claim that the father's access be supervised in her discretion, Justice Kristjanson had the following to say:

At the same time, the mother's proposal – that access be in her discretion – is inappropriate. Mother is presently a complainant in criminal charges against father and is proceeding with a motion to reduce his access. It would be completely inappropriate to allow the mother to set the father's access in these circumstances. It would not be in Y.'s best interests to leave undefined access with his father in his mother's discretion as to duration, frequency, or whether it occurs at all.

[50] Justice Kristjanson reviewed the steps that father said he was now intending to take to address the various protection concerns, with the goal of eventually moving toward unsupervised access at some point in the future.

[51] Her Honour noted that while Justice Hood had granted leave for the society to file its records in the motion before her, those records were not yet before the court.

[52] Because of the intertwining of the child protection proceedings and domestic proceedings, Justice Kristjanson stated:

I am of the view that a Case Management judge should be appointed to take this family to the hearing of the motion to change, given the high level of conflict and serious concerns regarding Y.'s health, safety and well-being.

[53] Her Honour concluded by making a temporary without prejudice order varying Justice Paisley's divorce order, to provide for specified supervised access to the father with strict terms and conditions, including a requirement that father undergo the mental health assessment which had been ordered by Justice Sager in the proceedings before her on March 29, 2019 – as well as other terms and conditions.

4: CONCURRENT PROCEEDINGS – AN ABUSE OF PROCESS?

4.1: The law on abuse of process

[54] Father argues that the continuation of the concurrent proceedings constitutes an abuse of process. He submits that what is now taking place in the SCJ motion is a duplication of what is occurring in the child protection proceeding in this court. He seeks an order from this court that the Application be dismissed.

[55] He notes that the SCJ motion is now proceeding with a judicial awareness of the child protection action, including an awareness of the past finding that Y. is in need of protection, and the need for father to change his behaviour before the court will consider that unsupervised access by the father is in Y.'s best interests.

[56] In other words, the father's argument goes, the SCJ motion has all the important pieces which it requires in order to make access decisions in the child's best interests.

[57] In Canam Enterprises Inc. v. Coles, (2000) 51 OR (3d) 48, the Ontario Court of Appeal had the following to say about the doctrine of abuse of process, at paragraph 31:

Abuse of process is a discretionary principle that is not limited by any set number of categories. It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy.

[58] And at paragraph 34, the Court continued:

Maintaining open and ready access to the courts by all legitimate suitors is fundamental to our system of justice. However, to achieve this worthy purpose, the courts must be vigilant to ensure that our system does not become clogged with unnecessary, repetitious litigation.

[59] In Toronto (City) v. Canadian Union of Public Employees (CUPE), Local 79, 2003 SCC 63, the Supreme Court of Canada made the following comments about the doctrine of abuse of process, at paragraph 35:

Judges have an inherent and residual discretion to prevent an abuse of the court's process. This concept of abuse of process was described at common law as proceedings "unfair to the point that they are contrary to the interest of justice" (R. v. Power, [1994] 1 S.C.R. 601, at p. 616), and as "oppressive treatment" (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667).

... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.

[60] Mr. Ludmer, in his submissions arguing that this court should find that an abuse of process would exist if the Application remained alive, refers to the case of Behn v. Moulton Contracting Ltd., 2013 SCC 26. At paragraph 41, the Court stated:

As can be seen from the case law, the administration of justice and fairness are at the heart of the doctrine of abuse of process. In Canam Enterprises and in C.U.P.E., the doctrine was used to preclude relitigation of an issue in circumstances in which the requirements for issue estoppel were not met. But it is not limited to preventing relitigation. For example, in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, the Court held that an unreasonable delay that causes serious prejudice could amount to an abuse of process (paras. 101-21). The doctrine of abuse of process is flexible, and it exists to ensure that the administration of justice is not brought into disrepute.

[61] The courts which discuss the doctrine of abuse of process all note similar underlying precepts, namely, it is a flexible doctrine aimed at preventing:

• litigation which would be contrary to public policy
• re-litigation of disputes previously decided
• a multiplicity of proceedings
• proceedings which are contrary to public interest and fairness

[62] In its consideration of fairness in the context of family proceedings, the court is also aided by the Family Law Rules (FLR).

[63] The FLR apply to all family law cases, including cases under the CYFSA, in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice.

[64] The notions of justice and fairness are imported directly into the FLR, specifically:

(1) Subrule 2(2) which states that the primary objective of the rules is to enable the courts to deal with cases justly; and

(2) Subrule 2(3) which provides that dealing with cases justly, includes:

• Saving expense and time, and
• Giving appropriate court resources to the case while taking into account the need to give resources to other cases.

[65] It is all these considerations which the father says should lead to the conclusion that two parallel proceedings ought not to be taking place at the same time, concerning the same parents, and about the same child.

[66] As I noted earlier, in the society's second summary judgment motion, the society requested a six-month supervision order with the mother on certain terms and conditions, including terms for the father. It requested an order that the father's access to Y., be at the society's discretion as to location, duration, frequency, level of supervision and whether access is to take place at all.

[67] The father argues that this is the same relief that the mother seeks in the SCJ motion and which is now being case managed pursuant to the order of Justice Kristjanson.

[68] And because of this overlapping or duplication of the two proceedings, the father argues it would be unfair for him to have to litigate in this court, in the context of the existing Application while, at the same time, having to litigate in the SCJ motion.

4.2: Addressing the alleged unfairness

[69] There is some merit to the father's argument. However, in the court's view the co-existence of the two court proceedings does not rise to the level of an abuse of process such that this court is required to dismiss the society's Application.

[70] It is well-established that protection applications should not be summarily dismissed nor, indeed, cannot simply be withdrawn by a society without leave of the court.

[71] In that respect, child protection proceedings differ from private domestic disputes which can be withdrawn at any time pursuant to Rule 12 of the FLR.

[72] There are public policy reasons for vesting in the court – not the applicant society – the ultimate authority for determining the outcome of a protection application. The protection of children from harm is in a special category of proceedings, such that it is deemed to be inappropriate to simply allow one party to effectively walk away from that proceeding without the court's oversight.

[73] In Catholic Children's Aid Society of Toronto v. B.(D.), Justice Penny Jones had the following to say in cases where consideration was being given to withdrawing a protection application in favour of a domestic proceeding, at paragraphs 15 and 16:

[15] In cases in which the society wishes to withdraw in favour of a pending private custody proceeding, I would consider factors such as the nature of the allegations giving rise to the apparent need for protection, the perceived degree of risk to the child, the nature of the claims asserted in the private custody litigation (for example, has the parent identified by the society as the person who harmed or placed the child at risk, put forth a claim for custody) and, last, the position of the parties on whether a withdrawal should be allowed.

[16] Generally, in situations in which there are serious ongoing protection concerns, I would be reluctant to grant leave to withdraw the protection application. I would see the society's request to divest itself of the protection matter as a "handing off" of its responsibility to ensure the protection of that child or those children to a private litigant. I could have no confidence that a private person would appreciate and be guided by the same public responsibility to protect children that is currently vested in the society. It has been my experience that private litigants can generally be expected to make decisions in their own best interests and frequently see no difference between their interests and their child's interests even when such may not be the case. Nor could I expect the expertise, evidence-gathering abilities, and the resources enjoyed by the society to be shared equally by an individual litigant. Given the shortcomings inherent in such a "handing off" of the society's responsibility, the society would be unable to predict with certainty the outcome of an application to which it is not a party.

[74] In the present case, it is not the society which is seeking leave to withdraw its Application, but a request by the father to dismiss the Application as an abuse of process. It is the father who, historically, has been in conflict with the society since the commencement of the Application two years ago.

[75] To Justice Jones' observations, I would add the following. In the current Application, the mother is better able to be an litigation participant given that, to date, she has to a large extent been riding on the litigation "coattails" of the society. It is the society which is tasked with the investigative duties and responsibilities, responsibilities which involve family service workers, children's service workers and other specialized individuals employed by the society.

[76] As a private individual, the mother simply does not have the resources enjoyed by the society. If the Application were dismissed in favour of the SCJ motion, the mother would be forced into the untenable position of having to replicate the society's resources. Even if this were theoretically possible, the cost to the mother, both in terms of time as well as money, would be exorbitant.

[77] The mother has made it clear in her submissions in the present motion that she has neither the ability nor the means to fight protracted litigation against the father in the SCJ motion if the society were out of the picture.

[78] The father argues that the mother's assertion to this effect is strictly speculative, that there is no evidence she would walk away from the domestic proceeding if the entire litigation were handed off to her, as the moving party in the SCJ motion. I am not persuaded by that submission.

[79] Given the enormous cost in time and money that would be imposed on the mother if the society were no longer involved, I accept the mother's submission that the burden on her would be excessive, unreasonable and, ultimately, unfair to impose on her.

[80] Furthermore, the society in this case fulfills a unique role which the mother would be unable to replicate in the SCJ motion. The court is mindful that the Application arose from the intense conflict between the mother and the father. The court's finding that the child is in need of protection stems from the father's abusive conduct, not only toward the mother but also the child.

[81] In circumstances such as this, the society's legal mandate is to act as the protective agency whose only interests are the child himself.

[82] In a domestic proceeding, the mother represents her interests only, not the interests of the child. She will not be recognized by the court in a domestic proceeding as a litigant who represents solely the child's interests – in the way a society does - rather than her own interests.

[83] And in the present case, the focus is not only the best interests of the child but also the ongoing protection concerns. It is the society, not the mother, who is best positioned to address protection issues. That is the society's legal mandate. It is not the mother's mandate.

[84] Moreover, the protection concerns for this child remain very much alive, as both this court as well as Justice Kristjanson have noted. While the father has made certain promises to begin to address his behavioural dysfunctions which led this court to conclude that he inflicted emotional harm on his child, that process is just at the very early stages. Justice Kristjanson listed a number of steps which the father was required to take if he hopes to eventually move his access from supervised to unsupervised.

[85] In my view, the society must remain as an integral party to ensure that the protection issues are adequately addressed. Over the past two years, the society has accumulated notes, records and observations from its workers. It has established relationships with third-party collaterals and with the child himself. Given its legal mandate, the society positions itself in court proceedings as a third-party neutral, representing only the child's interests, rather than as an advocate for one parent or the other.

[86] If the society were forced out, the competition would then devolve into a battle of mother versus father, with neither party representing solely the interests of the child.

[87] As I stated at the outset of this section of my reasons, there is certainly overlap between the two proceedings. Undoubtedly, it would be costly in terms of resources if the two proceedings continue to be actively litigated. The cost in terms of time and money, as well as court resources would be substantial.

[88] The outcome of the society's summary judgment motion which I heard on August 27, 2020 remains open. If I were to dismiss that motion, the next step in the Application would be to set this matter down for a trial, something which could require 1-2 weeks of court time, possibly more. Not only would this impact on court resources but it would be very costly in terms of time and expense for the parties.

[89] If I were to grant the summary judgment motion, that would not put an end to the proceedings, as the motion requested a six-month supervision order with the mother. The matter would then return to the court by way of status review prior to the expiry of that six-month order.

[90] In all the circumstances, I have concluded that notwithstanding overlap between the two proceedings, it would not be appropriate to dismiss the society's Application.

[91] Rather, the solution is to craft an order which minimizes the expense of overlapping proceedings while, at the same time, ensuring that the child can be protected from harm.

[92] The order which I now make attempts to address the cost of duplication, both in terms of its impact on time as well as resources to the parties and to the court.

5: CONCLUSION

[93] The court makes the following order:

(1) The father's motion for a finding that the society's existing protection application constitutes an abuse of process is dismissed.

(2) The society's summary judgment motion is adjourned sine die.

(3) The society's protection application is adjourned to a date to be set by the trial coordinator, to be spoken to, for the purpose of advising the case management judge of the progress of the motion to change in the Superior Court of Justice.

(4) Except with leave of the court, the society will take no further steps in the protection application for so long as the motion to change continues to progress in the Superior Court of Justice.

(5) In making this order, the court is exercising its discretion to lengthen the timetable for hearings as set out in Subrule 33(3) of the Family Law Rules, in the best interests of the child.

(6) To the extent that it would be helpful in furthering the child's best interests, protection and well-being, and to the extent that the Superior Court of Justice permits, the court strongly encourages the society to actively participate in the motion to change in the Superior Court of Justice.

[94] In crafting this order, the court's expectation is that the otherwise enormous cost of litigating two parallel proceedings will be either eliminated or significantly reduced while, at the same time, ensuring that the outstanding protection concerns can be sufficiently mitigated.

[95] In all the circumstances, there will be no order as to costs in respect of either the summary judgment motion or the present motion.

[96] The court thanks all three counsel who provided organized and helpful written and oral submissions in this motion.

Released: November 16, 2020

Justice Robert J. Spence

(Signed electronically)