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 and is subject to subsections 87(8) of the Act. This subsection and subsection 142(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 87(8), read as follows:
- (7) 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) 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.
- (9) 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.
- (11) No person shall publish or make public information that has the effect of identifying a witness at or a participant in a hearing, or a party to a hearing other than a society.
142.— (3) 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.
Ontario Court of Justice
IN THE MATTER OF the Child, Youth and Family Services Act, S.O. 2017, c.14, Schedule 1
BETWEEN:
CHILDREN’S AID SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN Renee Costantini for the applicant society
— AND —
C.B.R. Nicola Munro, for the mother
S.T.S. Self Represented father
Liisa Parise, counsel for the child
Heard: January 12, 2021 Released: January 21, 2021
Kukurin J.
[1] These are the Reasons for my decision on a motion (at Tab 37) brought by the applicant society in this child protection case. The claim of the society in this motion is for judicial leave for the society to withdraw its Application and to terminate all orders with respect to the child, A, now age 8, on a without costs basis.
[2] The Respondent mother supports the society and consents to the claim.
[3] The Respondent father opposes the claim and wishes the case to proceed.
[4] The child has legal representation by a panel lawyer of the Office of the Children’s Lawyer (OCL). The OCL lawyer, on behalf of the child, is opposed to any leave being granted now, but may be consenting to the claim for leave at a later date.
Issues in this Motion
[5] A number of issues arise in this motion, some raised by the parties, some by the state of the litigation, and some chanced upon by the court. These include:
(a) If the granting of judicial leave to withdraw is an exercise of discretion of the court, what are the criteria that a court, and this court in particular, applies to determine whether or not to grant leave?
(b) If the Child, Youth and Family Services Act (the CYFSA) requires the court to hold a hearing to determine the issue of whether a child is in need of protection, on what facts or circumstances could, or should, a court rely to decline to hold such hearing and/or make that determination?
(c) Is this simply a custody and access dispute or is there some child protection issue involved?
(d) What prejudice, if any, and to whom, would result if leave to withdraw is granted?
(e) If leave is granted, what becomes of the claims made by Respondents (or perhaps a child) in any Answer filed in the proceeding?
(f) Does the history of the litigation play any role in the decision whether or not to grant leave?
(g) Is there a public interest in holding the “finding in need of protection” hearing before granting the society leave to withdraw?
Background
[6] Considering the issue of leave to withdraw, and the attendant issues it raises, cannot be done in a vacuum. Some background is necessary to properly consider these in some factual context.
[7] The child A is now age 8. Her mother has been involved with a succession of men who have fathered children with her. The father of A is the second in that line. The mother has two older daughters, now ages 18 and 16 with father 1. She has another daughter, the child A, with father 2. She has two children, a daughter age 3 and a son, age 2 with father 3.
[8] There has been prior society involvement with the mother. Her first two children have been in the care of their paternal grandparents for over five years and they have custody of them. The child A has been the subject of domestic family law proceedings in this court since 2013 and the current operative order made under the Children’s Law Reform Act (CLRA) is an order dated May 28, 2018 that provides joint custody with week about sharing. Despite this order, and because of this intervening child protection proceeding, the child A has been residing with her father in Sudbury. The mother relocated to Kingston and still resides there, although there is some mention of her intention to return to Sudbury.
[9] There was a previous child protection proceeding that involved the two older daughters as well as the child A. That proceeding is finalized and this court is not aware of the final outcome other than that the two older half siblings of A are now in the custody of their paternal grandparents. The current child protection proceeding resulted mainly, but not totally, because of the mother’s relationship with father 3. The society apprehended the two youngest children of the mother and father 3 on September 7, 2018 when the daughter was one year old and the son was one day old. Whether the child A was apprehended or not (removed by the society from the person who had charge and placed in a place of safety) is a murky question. Officially, the judicial identification of the child indicates that she was not. However, submissions of society counsel at this motion for leave to withdraw are that she was. In any event, A and her younger half siblings are the three children who are the subjects of the society’s child protection application that was first returnable on Sept 12, 2018.
[10] That did not last very long. Less than three weeks later, there was a finding, on consent of the mother and father 3, that the two younger siblings were children in need of protection [under s.74(2) (b)(i), (b)(ii) and (h) “as supported by the facts set out in the society’s application”]. They were placed with kin, namely the mother’s sister who resides in Kingston, with a nine month supervision order with conditions. The mother was granted access supervised in the discretion of the society. The mother soon thereafter moved to Kingston to be closer to these younger children, She and father 3 apparently separated. The child protection file involving these two younger children was hived off to the City of Kingston where the Kingston society became the applicant. The child protection proceeding in Sudbury involves only the child A. The child A continued to live with her father subject to an interim supervision order. No finding was ever made that A was a child in need of protection. The elapsed time from commencement of the application to date is 2 ¼ years.
[11] Although not comprehensively detailed in the evidence, in that 2 ¼ years, the mother took some steps in Kingston to better her circumstances. She did so to the point that the Kingston society returned her two youngest children to her, apparently with a protection order (supervision order). The mother has had some access with the child A but the global COVID pandemic has intervened to make the exercise of access much more difficult, especially with the child living in Sudbury and the mother living in Kingston.
[12] The society’s child protection application has been amended twice. Although the grounds for finding have remained the same, the society’s claims for disposition and access have changed as follows:
(a) Application 12 Sept 2018 – sought placement of A with the father of A subject to a 9 month supervision order
(b) Amended Application 9 July 2019 – sought s.102 order for deemed custody of A to the father of A
(c) Amended Amended Application 10 March 2020 – seeks joint care and custody with both mother and father of A subject to 6 month supervision order.
The present motion seeking a withdrawal which, if granted, would leave the parties with no child protection order, and would revive the domestic family law order that provides for joint shared week about care of the child with Friday 3:00 pm exchanges.
Positions of the Parties and the Child
[13] The father has filed an Answer and Plan of Care to the society’s applications. In it, his claim for disposition is a s.102 deemed order for sole custody of A. He also wants the mother’s access to the child A to be supervised at a Child and Family Centre. In the alternative, he seeks sole care and custody of A subject to a society supervision order. In either case, a finding that the child A is in need of protection is a pre-requisite.
[14] In fairness, the father’s most current position on custody and access of A is much more generous than set out above. In fact, he has a recent motion for an order of joint custody of A by himself (75%) and the mother (25%) with specific times when the mother will have her 25% care of A, contingent on where the mother may be residing. He wants to be the primary decision maker for A, and proposes that the mother will be consulted. This motion has not yet been heard and is still outstanding. It seems to contemplate a s.102 deemed joint custody order, and if so, will require that a finding is first made that A is a child in need of protection.
[15] The mother’s position, at least on the motion for leave to withdraw, is that she supports an order for such leave. As she and the father have not arrived at a resolution of the custody and access that the father is proposing, the inference is that she wishes the existing domestic family order to once again become operative. In fairness, her submissions at this motion are that she and the father could schedule a settlement conference and try to negotiate terms of custody and access in the domestic family court. It should be noted that the existing order is a consent order and it is a final order. To date, no one has taken any steps to bring a Motion to Change to vary that order. The mother has also filed an Answer and Plan of Care in the society’s child protection case that pertains not only to A but to her younger half siblings as well. With respect to A, the mother did not want A placed with A’s father, and the inference I make (because her claim is not clear) is that she wanted sole custody of A under a s.102 order, alternatively placed with her without, or with, a society supervision order, or in the further alternative with her sister in Kingston subject to society supervision.
[16] The society’s position is that it does not feel that any protection concern exists at this time. The Kingston society evidently agrees as it returned the two youngest children to the mother, although it still has a supervision (protection) order. The society has received information that the mother has taken steps to ameliorate her parenting. Father 3 is allegedly no longer in the picture and he was, in the society’s evidence, a major reason why this case started. It seems content that all child protection orders terminate and that the mother and father of A battle out the issues of custody and access in the domestic family court. The society, in fairness, seems receptive to the father’s proposal for the new custody regime he is proposing. In a nutshell, this society wants out. It has more needy clients than these and it prefers to expend its limited resources in assisting these more needy families and children. It does not intend to seek a finding that the child A is a child in need of protection and believes that she is not. It says that it has been seeking leave for some time. Its motion for leave was returnable Nov 12, 2020 – two months ago.
[17] The child has a legal representative, namely a lawyer from the panel of the Office of the Children’s Lawyer, by way of an order made in this CYFSA case by the court. The position of the child put forward by her legal representative is that the child is opposed to the granting of leave to the society to withdraw its application at this point in time. But she is not opposed to doing so indefinitely. Her position is that a withdrawal by the society would put not only the mother and father, but also the child A subject to a joint custody, week about order that cannot possibly be workable with the mother residing in Kingston and the father and child in Sudbury, particularly with the pandemic on the upswing and provincial directives to stay at home. In fact, the submission was made that it is surprising that no effort has been made before now to address the issue of the CLRA order. The withdrawal places the child in an untenable position and is not what the child wants. In addition, while A has legal representation in the CYFSA proceeding, a withdrawal will mean that the CLRA proceeding will be the only active proceeding (assuming a variation is sought) and she will be without legal representation or a voice in that proceeding. The inference I draw is that the child will not object to a withdrawal provided she has assurances that an acceptable order replaces the one presently in force – acceptable mostly to her.
Finding in Need of Protection
[18] An analogy can be made between a finding that a child is in need of protection in a child protection case, and a finding of guilt of a criminal offence in a criminal case. These are the critical findings that move the cases on to their next steps: a disposition (and access) order in the child protection case, and a sentence in the criminal case. Without these pivotal findings these cases (almost) always end.
[19] One large difference between the criminal hearing to determine guilt and the child protection proceeding to determine if a child is in need of protection (the ‘finding hearing’) is that the hearing in the criminal field must take place within a certain time limits, set out by no less than the Supreme Court of Canada, failing which the criminal charge may be stayed on a Charter challenge under the delay provisions in s.11(b) – trial within a reasonable time. While the child protection laws also set out time limits for a hearing to determine if a child is in need of protection, these are more often than not, in a contested case, ignored, and ignored with impunity. Child protection cases do not have the Charter s.11(b) to rely on. The sharp judicial teeth that are brought to bear for a charter violation or infringement in a criminal case are to be contrasted with the dentition of the child protection courts where the process to date has been to gum the case to an eventual resolution.
[20] The present case is a prime example. The CYFSA provides a statutory limitation guide of when a hearing to determine if a child is in need of protection (the ‘protection hearing’) is to take place.
S.96 Where an application is made under subsection 81 (1) or a matter is brought before the court to determine whether a child is in need of protection and the determination has not been made within three months after the commencement of the proceeding, the court,
(a) shall by order fix a date for the hearing of the application, and the date may be the earliest date that is compatible with the just disposition of the application
[21] Had this statutory provision been complied with, the date of the hearing of whether the child A was a child in need of protection should have been set by Jan 1, 2019. It is now January 2021 – two years later - and not only is no date set, no attempt has been made by anyone to do so, and the society, which has the burden of proving that the child A is a child in need of protection has no intention to prove that she is.
[22] Section 96(a) actually places the obligation on the court to fix a date for the protection hearing. It is fair that the court accept the blame for not doing what clearly it should have done long ago. The setting of a date for the finding hearing is not limited to the CYFSA. The Family Law Rules, which also apply to child protection proceedings also have a Rule that governs proceedings under the CYFSA. In particular, Rule 33 contains a timetable that provides when certain steps are to be completed.
Rule 33. (1) Every child protection case, including a status review application, is governed by the following timetable:
[23] According to this subrule, the case involving the child A should have been completed – that means a finding in need of protection, a disposition order, and an access order should all have been made – by the end of January 2019. While the court can, and should, accept the blame for this blatant non-compliance with the timelines, its shoulders are not the only ones to bear the blame. It is indisputable that the temporal statutory and rule provisions that apply in a case like this are just. The court’s primary objective is to deal with cases justly. [See Rule 2(2)]. It is required to apply all of the Family Law Rules to promote this primary objective. It is also the obligation of the parties and their counsel to help the court to promote this primary objective [See Rule 2(4)]. Everyone has dropped the ball.
[24] This self reprimand and castigation does not advance the issue here. The finding in need of protection is not a big deal on the facts of this case. By this, I mean that the society was successful in having the court make this finding within three weeks of when the case started. It did so with respect to two of the three children. Moreover, it did so on the consent of both the mother and the father 3. The mother was represented by her counsel at that time the same counsel as is representing her today. Additionally, the same grounds for a finding in need of protection were relied upon for all three children. The finding for the two youngest were made on the grounds specified in the society’s Application. Finally, there was a consent that the factual basis for the findings were the facts set out in the society’s Application on the date of the consent. How difficult would a finding for the child A be today with this history? And how could the mother possibly contest such a finding? The hearing of the protection finding for the child A in this case, seems to line up squarely with the purpose of a summary judgment motion. It also falls in line with the preferred bifurcation of child protection proceedings (that the finding in need of protection be dealt with first). It also would allow the court what it is mandated to do in a child protection case, namely determine if the child is in need of protection.
[25] Not so fast claims the society. The society’s position is that the child is not in need of protection today. Moreover, the society ought not provide services where a child is not in need of protection.
[26] In Children's Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754, 114 A.C.W.S. (3d) 71, Justice Czutrin stated the following with respect to the timing of a need for protection finding.
“I have come to the conclusion that the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date. This is consistent with the Act and certainly consistent with the Supreme Court of Canada decision.” [at paragraph 50]
[27] This statement as to timing is, I submit, the correct statement as to when a need of protection is to be considered at a finding hearing. Prior to this decision, the case law was unclear, perhaps even contradictory. Justice Wallace in Re: B.N., [1996] O.J. No. 4428, 21 O.T.C. 308, 67 A.C.W.S. (3d) 945, an earlier decision stated:
“Despite the statute's use of present tense, I find that the only reasonable time to consider in determining whether the children are in need of protection is when the protection application is initiated.” [at paragraph 12]
[28] However, there is a conflicting opinion of Justice J.M. Wilson, and an appellate one, that is later in time than either the B.N. or the K.R decisions. In N.V.C. v. Catholic Children's Aid Society of Toronto, [2017] O.J. No. 525, 2017 ONSC 796, Justice Wilson specifically refers to Justice Czutrin’s reasoning and states the following:
“I conclude that the wording of the section, common sense, and the case law support the interpretation that the finding of risk of harm, and hence the child's need for protection, must be determined at the time of the hearing.” [at paragraph 57]
“ I conclude that section 37(2)(b) of the CFSA is clear that the Society's onus is to prove on a balance of probabilities that a risk of harm is present at the time of the trial based upon relevant sufficient evidence. This evidence may date from both pre- and post-apprehension.” [at paragraph 71]
[29] Justice Wilson’s rationale on the timing of the risk that forms the ground for a finding in need of protection has been mentioned in several decisions subsequent to her decision in N.V.C. and more often than not, it has not been followed. While it is certainly deserving of respect, it is also deserving of some caution in its application by the child protection courts. Criticisms of Justice Wilson’s decision on timing are set out by Justice Pawagi in CAS of Toronto v. S.A., 2017 ONCJ 366, [2017] O.J. No. 2919, by Justice O’Connell in CAS of Toronto v. S.M.T,. [2018] O.J. No. 4200, by Justice Paulseth in CAS of Toronto v. R.M., [2018] O.J. No. 5194, by Justice Zisman in CCAS of Toronto v. N.N., [2019] O.J. No. 116, and by Justice O’Bonsawin in CAS of Ottawa v. S.D., [2020] O.J. No. 5091. These are all trial decisions but they post date the N.V.C. decision of Justice Wilson. Finally, although Justice Wilson’s decision is an appeal decision, there is a conflicting decision, also an appeal decision from the same court level as N.V.C. namely, the decision of Justice Horkins in CAS of Toronto v. R.M., [2019] O.J. No. 1836. Justice Horkins was dealing with a ground of appeal in the R.M. decision of Justice Paulseth (above). The appeal relied on her failure to follow the N.V.C. decision with respect to timing. Justice Horkins reviewed all of the foregoing, as well as other cases and ultimately decided [at paragraph 99]
“In summary, the trial judge's decision not to follow N.V.C. was not an error in law. This ground of appeal is dismissed.”
“The CYFSA is remedial legislation and should be interpreted broadly with a view to achieving the purpose of this Act. The N.V.C. approach does not follow this direction.” [at paragraph 91]
[30] I am unsure what binds this court by way of the doctrine of stare decisis in the circumstances where two appellate courts from the same court level have opposed decisions on a legal issue. I prefer the decision of Justice Horkins and the rationale of Justice Czutrin, also followed by most other jurists, because it make the most sense. It is a flexible approach that follows the Supreme Court of Canada's direction in Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 SCR 165. It makes more sense in the context of child protection litigation than the more rigid approach set out in N.V.C. As mentioned in the critiques of those that advocate the relevant time to be the time of hearing, this would render s.101 (8) CYFSA useless as a dispositional option.
S.101(8) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.
[31] In the present case, there is the compounding factor of the delay in obtaining a finding with respect to the child A. There is no explanation given why a finding with respect to A was not made at the same time as a finding was made with respect to her two younger siblings. Nor is there any explanation why a finding hearing was not held. Delay is rampant in this case. The society initially obtained a “without prejudice” temporary care and custody order on the first return date of its application. Although the governing timelines in Rule 33 call for a temporary care and custody hearing within 35 days from the commencement of the proceeding, none was held – ever. There was ample opportunity. The mother brought motions to obtain Christmas access to A in 2018 and in 2019. The society could easily have sought to have the temporary care and custody hearing held contemporaneously with either of them. It didn’t. It was not until March 2020 that it sought to have a temporary care and custody hearing – one that has not been set for hearing to date. The “without prejudice” order made 2 ¼ years ago has remained the operative order since that time.
[32] Why raise temporary care and custody in a motion to withdraw? And why raise delay in temporary care and custody hearing? It is because the society which has carriage of this case has the main responsibility to conduct it within the procedure of the Child, Youth and Family Services Act. This is, by far, the main statute under which societies operate, and they should be keenly aware of the time limits in its provisions.
[33] Granting leave to withdraw at this stage sends the message that a society can let a case linger in a quasi limbo with a “without prejudice” order for well over two years, that it can delay a finding hearing virtually forever, and ultimately ask the court not to hold one at all. This is not a message that this court wants to send. The society should do what it should have done two years ago, and it should permit the court to do what it should have done two years ago.
Criteria for Granting Leave to Withdraw
[34] The most often cited decision on the factors a court should consider when deciding whether or not to grant leave to withdraw is CAS of Toronto v. D.B., [2002] O.J. No. 2318 a decision of Justice P. Jones of this court. She states that
“…factors might be relevant to a determination that a withdrawal would be the appropriate
- whether any continuing protection concerns exist;
- whether all parties consent to the withdrawal;
- the reasons for the withdrawal; and,
- how the withdrawal would affect the fairness of any other pending custody litigation”
[35] In Children's Aid Society of Algoma v. A.S., [2011] O.J. No. 5612, 2011 ONCJ 393, I added several other factors that might be relevant.
- what is the real battle in the case about and what are the possible outcomes
- at what stage is the litigation, what are the timelines expectations and what demands on judicial resources;
- if the withdrawal is opposed, what is the reason for the opposition and what is the evidence to support the reason; and
- is there an alternative venue for resolving the issues.
[36] Firstly, in the present case, the parties do not agree to the granting of leave to withdraw. The father is strongly opposed. The legal counsel for the child A is also opposed. This criterion supports denying leave to withdraw.
[37] Secondly, the reason for the withdrawal is that the society does not see that there is any protection concern at present for the child A. However, whether there is or isn’t is not necessarily relevant to this motion for leave, nor is it determinative of whether the child A is a child in need of protection under the statute. The timing of that determination, under the predominant case law, is not necessarily “the present”. The finding in need of protection can just as well be made on the facts that existed at the time the application was brought. Or at any time in between.
[38] The society’s position is that because it does not believe that there is a present protection concern for A, then there isn’t. The father in this case disagrees vehemently with the society. He says that there is a protection concern and, in fact, has filed considerable evidence to substantiate this concern. So these two parties, at least, are not ad idem on this critical issue. This court cannot make any pronouncement one way or the other as it is not asked to in this motion for leave. However, it is trite that societies and respondents often rely on grounds that they are unable to prove, and courts have often found children in need of protection on grounds that have not been pleaded. The society may be wrong in its belief.
[39] In addition, as I mentioned, the father disagrees that there is no protection concern now. He has not only the historical evidence of the child protection proceeding of the mother’s first two children, the pejorative evidence (albeit unsworn) of one of them that paints the mother’s parenting in a very poor light, the evidence of his own relationship with the mother, including her accusations that he sexually assaulted her, the subsequent police charge, and the fact that he was not criminally convicted, all of the society’s evidence of the mother’s dismal and violent relationship with father 3, supplemented by evidence of his own as to what he knew to have taken place between them. Failing to proceed with a finding hearing with respect to A when a finding was made with respect to her two younger siblings in the same case grates on the court. It is like watching a film where an expected and necessary part of the story is just left out with no ostensible reason provided.
[40] Moreover, the society evidently was convinced that the child A was a child in need of protection when this proceeding was commenced. It stated at the hearing of this motion that the child A was apprehended (as were her younger siblings). The evidence is that no warrant was obtained. One of the criteria for apprehension without a warrant is the belief of the apprehending society worker, on reasonable and probable grounds, that the child is in need of protection. Moreover, the society clearly believed that A was in need of protection when it specified the grounds it was relying upon in its first application. It surely must have received corroboration of its belief when the mother and the father 3 of the two youngest children signed a consent to a finding that these two children were in need of protection. This corroboration must have been accentuated by the fact that the consent for such findings was based on the facts set out in the society’s first application. Those facts applied to all three children, including the child A. Additionally, the society twice amended its application, one year and two years later, yet did not change the grounds it was relying on for a finding that A, the only child remaining in this proceeding was a child in need of protection. If the jurisprudence is correct, and if the factual circumstances at time of intervention can form the basis for a finding in need of protection, then the society’s reason that no protection concern exists now is not a good reason to grant leave to withdraw.
[41] Thirdly, is the criterion that I describe as fairness. The first aspect of fairness is fairness to the child A. Her OCL counsel very clearly states that the child A is opposed to the weekabout joint custody regime re-emerging. This is precisely what a leave to withdraw will bring about. The child will be caught either in an untenable and distressing quandary of an unworkable order or in the middle of a family law variation proceeding that may go one for an unknown duration. Neither of these, says her counsel, is what she wants and this is why she opposes the society’s claim for leave to withdraw. The CYFSA states in its opening provision that the paramount purpose of the statute is to promote the well being of the child. It also gives to children like A, the right to engage in dialogue about how and why decisions affecting them are made, and to have their views given due weight, in accordance with their age and maturity. I am not sure if the society discussed with the child and her legal representative its plan to seek leave to withdraw. But the court has to be cognizant that the best interest of the child pervades the CYFSA by virtue of s.1, and the court has to listen to and give due weight to the child’s views not just on substantive issues but also on what may be perceived by some as procedural issue like granting leave to withdraw. I do accord some considerable weight to the child’s wishes on this motion, mainly because the outcome will impact the child.
[42] I am mindful of an appellate decision of Justice Kiteley in Children's Aid Society of Toronto v. C.M., [2018] O.J. No. 1384, 2018 ONSC 1431 in which she overturned a decision of motion Justice Weagant who had denied a society’s motion request for leave to withdraw a protection application, and she granted such leave. Justice Kiteley adopted the criteria in both D.B and A.S. but felt that the denial of leave was wrong because the motion judge
(a) focussed on an ongoing (but apparently statutorily stayed) domestic family law proceedings in another court between the parents;
(b) had no evidence before him that a withdrawal would affect the fairness of the domestic family law proceeding;
(c) speculated that the children would be at risk if all temporary child protection order “evaporated”, a consequence if leave to withdraw had been granted by him;
(d) failed to consider the uncontradicted and unchallenged evidence on behalf of the Society that the Society had no ongoing protection concerns, and “on the basis of that evidence, the court could not seek an order that the children were in need of protection’
(e) denied leave even though all parties and OCL counsel agreed, or acquiesced in the society’s claim.
The appeal court also refused to consider the submission that the motion judger had failed to consider that 760 days had elapsed since the application (in which the society sought leave to withdraw) was commenced, well beyond the allowable time limits. This was apparently not argued before the motion judge.
[43] I believe that the C.M. decision of Justice Kiteley can be distinguished. For one thing, this case, unlike her case, is not one where all parties and OCL counsel agree to the withdrawal. Secondly, there is no ongoing parallel domestic proceeding with outstanding temporary orders in the present case as there was in the C.M. case. There is a final order in the domestic case here between the mother and father that no one has sought to vary, and which clearly is not a sustainable order in the present circumstances. To vary it, a Motion to Change would have to be brought, and while I decline to speculate on the duration of any variation proceeding, I can at least conclude that it is unlikely, given the positions of the mother and father, that it will be resolved anywhere close to quickly and on consent. Justice Kiteley seemed to accept the society’s uncontradicted evidence that it had no protection concerns when it sought leave to withdraw. Moreover, she seemed to agree that the society could not, in those circumstances, seek a finding that the children were in need of protection. She did not refer to any decisions relating to timing of the risk of harm. She clearly did not have the decision of Justice Horkins in R.M. which was not released until April 2019, over a year after the C.M. decision. While the society may have been correct that it could not pursue a finding in need of protection when it was before Justice Kitely in February 2018, it is not correct that the society in the case before this court cannot pursue a finding today. Additionally, the finding in need of protection is a live issue in the case before this court. Finally, the children’s lawyer in the C.M case appeared to agree with the withdrawal. Here, the child A, through her lawyer expressed her views that she did not want the society’s application withdrawn. and wanted the domestic order varied first – or at least wanted a legal order to exist with which she could be comfortable. Finally, there are submissions and there is evidence before me with respect to the age of this case. It is 840 days from date of commencement and plenty of both trial and appellate courts have reproached parties and courts that allow child protection cases to age so long without finality. There are sufficient differences between the C.M decision and the present case that I do not find it is binding upon this court.
[44] Fourthly, there is a second aspect to fairness, namely prejudice. The present proceeding has Answers filed by each of the mother and the father of A. They each seek a s.102 custody order in this CYFSA proceeding. That has not changed since September 2018. What becomes of these claims if the society is granted leave to withdraw? If a domestic applicant seeks sole custody, and the respondent, in his or her Answer also seeks sole custody, the withdrawal of the Application by the applicant does not mean that the Respondent’s claim for custody is automatically defeated and that the case is at an end. In the child protection application, the prevailing view seems to be that on leave to withdraw being granted, and a Notice of Withdrawal filed by the society, all orders made in the case terminate, and the case is at an end. There is no response to what becomes of outstanding claims of other parties. For them to go ahead, a finding in need of protection is a pre-requisite.
[45] Without traipsing overly into the area of speculation, it is almost inevitable that withdrawal will result in some prejudice to an opposed party. For one thing, all of the evidence to support a finding is already available in the case sought to be withdrawn. Not only that evidence, but evidence that relates to disposition (ie the same issues that are involved in a custody and access case) is also filed in the case sought to be withdrawn. If it is permitted to be withdrawn, and the statutory stay on an impractical domestic order is removed, the litigation to vary the domestic order will have to start from scratch, will require the parties to duplicate in the variation proceeding all of their evidence which they had already filed in the case that was withdrawn, and in addition, file much of the society’s evidence in the variation case as well. Additionally, the applicant for variation of the domestic order will have to satisfy the domestic court that a material change of circumstances has taken place, a threshold that is not a requirement for a s.102 custody order under the CYFSA. More importantly, the withdrawal of the society’s child protection application will result in the end of the temporary care and custody order that places the child A in the temporary care and custody of the father. I can hardly envision any cases that would be more prejudicial to the respondent father in this child protection case if it is allowed to be withdrawn.
[46] A fifth criterion is whether the legal fight is a custody and access dispute, or does it involve a child protection issue. While the society is tasked with proving that a child is in need of protection when it starts a child protection proceeding, it is also under a duty to re-assess its position as time elapses to determine if what it is asking for is still appropriate or needs be changed. The society argues that this is what it has done, and the succession of applications with different claims seem to confirm that. However, the society must also be aware that other parties, like the father, in this case, may agree when it advances a claim that is acceptable to him, and disagrees when it changes that claim to one that he opposes. He opposes the society’s most recent claim for joint custody in the CYFSA proceeding under s.102, and is even more opposed to the society withdrawing from this case. He seems, in fact, ready to show that A is a child is in need of protection if she is returned to the joint custody regime that is reflected in the current order of the domestic family court. It is clear that this is not just a custody and access dispute between parents.
[47] Sixthly, this court has to examine the possible outcomes, the various contingencies, the judicial resources and the parties. The Court of Appeal decision of Kawartha-Haliburton Children's Aid Society v. M.W., [2019] O.J. No. 2029, 2019 ONCA 316, speaks by way of example taken from Report of the Motherisk Commission (2018: Ontario Ministry of the Attorney General) about the “reality of the child protection litigant” and to the “significant imbalance between parents and Children's Aid Societies, noting that parents, even when represented by counsel, were "simply overpowered”. …Fairness in the child protection context demands recognition of these dynamics.” [at paragraph 69]. In the present case, the record shows that the father is self represented and he has been in this litigation for 2 ¼ years already. He is clearly not intimate with the complexities of the CYFSA statute: if he had been, he would long ago have brought a motion to force a finding hearing, or brought a summary judgment motion himself on the issue of a finding, or would have brought a variation of the domestic joint custody order and sought judicial lifting of the statutory stay in that court. He had plenty of options but no legal advice or representation. He is boxing against professionals and going nowhere.
[48] The outcome of the CYFSA proceeding depends entirely on a finding that the child A is in need of protection. If no such finding is made, because of a withdrawal of the society’s amended child protection application, the only outcome is a return of the child to whoever had charge when this case started. If a finding is made, however, any one of the four orders set out in s.101 CYFSA, or set out in s.101(8) CYFSA or set out in s.102 CYFSA are all available options. A withdrawal severely limits what this court can do. It more than worth mentioning that the option in s.101(8) is a response to the society’s argument that it prefers to spend its resources with other more needy families rather than this one where it sees no protection concerns. It wouldn’t have to.
S.101 (8) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.
[49] All that the society would have to do is to persuade the court, after a finding in need of protection is made, that no further court order is necessary, and it would be in the same position as it seeks to reach by way of withdrawal of its application. It would be entirely out of this case. If no finding in need of protection is made, the society is similarly in exactly the same position as the case is effectively ended. It makes more sense to hold a finding hearing in a case that is this aged.
[50] Seventhly, the issue of variation of the existing domestic order can be decided in this proceeding, but only if a finding is made that the child A is a child in need of protection. If a s.102 order is made in favour of either the mother or the father or both, each will have had an input in the making of that order as each is a party in this CYFSA proceeding. I assume that an order of this court under s.102 that grants custody and access overrides an existing prior order of this same court made under the CLRA. The existing domestic order is an order of this court. To the extent that a s.102 custody order is different than a prior CLRA custody order, it effectively varies it. In this proceeding it would do so without the necessity of a brand new proceeding, of duplication of evidence, of the procedural time and expense inherent in the litigation process, and without more court time and judicial resources needed to be expended.
Comments
[51] There is one other factor that plays into this motion for leave to withdraw. That is the dictate of the CYFSA statute to judges to hold a hearing to make a determination of whether a child is in need of protection when society commences a child protection application. That hearing, in the past, was traditionally a trial. However, court rules and jurisprudence have developed other “hearings” that are acceptable substitutes for a trial. The summary judgment motion is the prime example. So too are focussed hearing or mini trials, usually with judicial directions. Some trials are conducted wholly or partly on Statements of Agreed Facts. I have even encountered shortcut motions (in Form 14) seeking identification findings, findings in need of protection, disposition orders, and access orders brought in child protection applications – the whole gamut of what is sought in the child protection application.
[52] The motion for leave to withdraw a child protection application, when one considers it carefully, is another form of the hearing mandated by s. 90(1) CYFSA. Basically, it seeks to persuade the court that there is no need for the court to do what it is supposed to do under s.90(1) because the society no longer feels that there is a need of protection and /or the society no longer feels it should provide services within the confines of a protection order. That a society may make this argument by an affidavit is more a statement of its decision after re-assessing the case, which it is admittedly required to do periodically. However, simply stating that it no longer sees any protection concern is more a statement of opinion than fact. The only cogent facts that the society has presented why no further protection concern exists is that the mother has her two younger children back in her care, that the Kingston society is satisfied that she have them with a society supervision order, that she has made sufficient progress in her parenting, and that the father of these children is no longer in the picture. And it has presented these facts mostly by hearsay in this case of what a Sudbury child protection worker learned from a Kingston society.
[53] It may well be that the society has no further role in the issues of disposition or access. However, the court cannot hold a finding hearing in the guise of a motion for leave to withdraw a child protection application, particularly on the kind of affidavit evidence that the society presents in this case. It has to address why its evidence supporting a finding in need of protection filed throughout this 2 ¼ year proceeding should be ignored or discounted by the court, and why the father’s evidence supporting a finding in need of protection should be disbelieved and discounted. Then perhaps the court might consider granting leave to withdraw. Courts have been said to provide oversight to children’s aid societies which are given extensive powers to intervene in the homes and families of our province. The main justification for doing so is to protect the children in this province. This is a laudable and a noble purpose. But the actions of a society are prescribed by the law. The court is also required to comply with the law and in addition, it is entrusted with ensuring that societies act in accordance with the law. The community has an interest in whether a child is in need of protection whenever that determination is placed before the court. This court needs more in this case than the society has provided to grant a leave that will exempt the society and the court from carrying out their respective mandates relating to a finding in need of protection.
[54] I dismiss the society’s motion at Tab 37 for leave to withdraw its twice amended child protection application.
Released: January 21, 2021 Signed: “Justice John Kukurin”