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.
(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.
(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.
ONTARIO COURT OF JUSTICE
DATE: 2021 07 30 COURT FILE No.: Toronto CFO-19-15346
BETWEEN:
CHILDREN’S AID SOCIETY OF TORONTO Applicant
— and —
A. J., (father of G.) M. H. (father of Y. and L.) L. M. (maternal aunt and caregiver of G., Y., and L.) Respondents
Before: Justice Sheilagh O’Connell
Heard on: June 17, 2021 Ruling released on: July 30, 2021
Counsel: Kenneth Atkinson, counsel for the applicant society Samir Patel, counsel for the respondent M.H. Tammy Law and Katherine Long, counsel for the respondent L.M. Helen Kurgatnikov Miller, counsel for G., for the Office of the Children’s Lawyer
Introduction
[1] The Children’s Aid Society of Toronto (“the society”) seeks leave to withdraw its protection application and amended protection application relating to the three children, G., age 9, Y., age 6, and L., age 3.
[2] The respondent father, M.H. opposes the society’s request to withdraw its protection application.
[3] The respondent maternal aunt, L.M., and current kin caregiver for all three children, supports the society’s request to withdraw. She has commenced an application under the Children’s Law Reform Act (“CLRA”) for sole decision making responsibility and primary residence for the children, with parenting time to the father “as agreed”.
[4] Counsel for the child G., on behalf of the Office of the Children’s Lawyer, takes no position regarding the society’s request to withdraw.
Background
[5] The Society commenced this protection application on February 26, 2019 following the death of the children’s mother, V.M.
[6] V.M. was the biological mother and primary caregiver of all three children. On February 10, 2019, the mother was the victim of a shooting. She died of her injuries on February 13, 2019. The mother was shot multiple times outside of the condominium where she lived with the children. The children were not present at the time of the shooting.
[7] The maternal aunt is the mother’s sister. She is currently caring for all three children, pursuant to a temporary without prejudice care and custody order made in this proceeding on February 27, 2019.
[8] The respondent father M.H. is the biological father of Y. and L. and the step-father to G. He had parenting time with all three children prior to their mother’s death, although not pursuant to a court order or written agreement.
[9] The father A.J. is the biological father of G. He has had no face to face contact with G. for several years. A.J. has chosen not to participate in this case, despite efforts to engage him. On July 22, 2019, following a motion, the court made an order dispensing with service of the child protection application on A.J.
[10] At the time of the mother’s death, there was no court order, separation agreement or guardianship declaration regarding the care of the children.
[11] At the time the protection application was commenced, the society had serious protection concerns about the respondent father M.H. (“the father”) assuming the role of primary caregiver for the children.
[12] According to the evidence filed, there was a history of violence between the father and the mother. In 2016, the society verified concerns about the children’s exposure to domestic violence, specifically that the father had pushed the mother to the ground and spat on her. Mr. H. was charged with assaulting the mother in 2016. The criminal charge was resolved by a peace bond.
[13] In 2017, the mother contacted Peel Police to report that the father had assaulted her. No charges were laid.
[14] On February 5, 2019, shortly before her death, the mother attended a police station in Toronto and reported to police that the father had threatened to kill her and had sent her angry text messages threatening to kill her after she had gone to a strip club. The father allegedly sent the mother a text message saying: “ I will kill you inside the strip club. Call the cops, anybody. I don’t give a fuck.” The police attended at the father’s home however, he was not there.
[15] On February 7, 2019, the father turned himself in and was charged with uttering death threats against the mother. He was held for a bail hearing because he was on probation relating to a dangerous driving conviction. He was released on bail. According to the evidence of the child protection worker, the father contacted both the mother and the aunt following his release and advised the aunt that she better “fix it”.
[16] On February 10, 2019, the mother was shot outside of her home and was hospitalized. The maternal aunt assumed care of the children while the mother was in the hospital.
[17] On February 11, 2019, the police reported their concerns to the society regarding the father as a caregiver for the children.
[18] Following the death of the mother on February 13, 2019, the police advised the society that the father was “a person of interest” in their investigation of the mother’s death. The father had not been criminally charged.
[19] On February 15, 2021, the maternal aunt advised the society’s intake worker that she wanted to provided long term care for all three children. She planned to do so with the support of her fiancé and mother.
[20] On February 21, 2021, the society met with the father. He reported that he had anxiety and depression for three to four years and that he was not on any medication or seeking treatment. He reported being on probation for dangerous driving for “flipping” a car the morning after he had been drinking.
[21] The father vehemently denied being involved in the mother’s death and further denied threatening to kill her. He reported being devastated by her death.
[22] The father acknowledged telling the mother, “I’ll end you” if he saw her working at a strip club but denied that this was a threat of physical harm, rather that he was going to report her to the society. He was agreeable to supervised access at the society’s office.
Procedural and Litigation History
[23] In the original protection application dated February 26, 2019, the society sought protection findings under sections 74 (2) (b) (i) (risk of physical harm), 74 (2) (h) (risk of emotional harm), and 74 (2) (k) (the child’s parent has died).
[24] The society asked for an order that the children be placed in the care of the maternal aunt subject to the supervision of the society, and an order that the father’s access be at the discretion of the society as to frequency, duration, location and level of supervision.
[25] At that time, the society verified protection concerns related to the impact of intimate partner violence posing a risk of physical and emotional harm to the children.
[26] On February 27, 2019, shortly after the protection application was commenced, the court made the orders requested by the society on a temporary ‘without prejudice’ basis.
[27] The temporary without prejudice care and custody order to the maternal aunt continues to be the governing order today.
[28] On June 5, 2019, the society brought a motion for the production of the father’s police records. This was opposed by the father. Following a contested hearing, for oral reasons given, the court ordered that copies of the father’s police records be produced to counsel for the society, in accordance with section 130 of the Child, Youth and Family Services Act (“CYFSA”), subject to a number of conditions set out in the Court Order.
[29] At the June 5th hearing, the court was advised that the police were apparently moving in “a different direction” in their investigation of the mother’s death, however, no further information was provided.
[30] On July 16, 2019, the charges pertaining to the father’s threatening death against the mother were withdrawn by the Crown.
[31] This matter returned before me on July 22, 2019. The society had now received the father’s police records, which documented the history of domestic violence between Mr. H. and the mother during their relationship.
[32] On August 1, 2019, the society followed up with the police investigation into the mother’s death. The police reiterated that they were no longer looking at the father as a suspect in the mother’s death.
The Father’s Access with the Children
[33] The father began supervised access with the children at the society’s offices on March 7, 2019. According to the society’s evidence, it was readily apparent during the access that all three children knew the father and had a strong connection with him. There were no concerns relating to the father’s ability to care for the children and meet their needs. The children were observed to be outgoing and affectionate with the father, who demonstrated strong parenting skills.
[34] In May of 2019, the society decided, in consultation with the maternal aunt, that the father’s visits would move to the community and be unsupervised. This decision was based on the father’s consistent attendance, combined with his positive interaction with the children, who looked forward to and enjoyed their visits with the father. Further, the police had now indicated that they no longer considered the father as a suspect in the mother’s death.
[35] In June of 2019, on the consent of all parties, the father began unsupervised weekend visits with the children in the community. The visits were four hours in length. The father would pick the children up at the maternal aunt’s home and return them to her home.
[36] The children reported that they enjoyed these visit with their father and no concerns were raised.
[37] In July of 2019, the society began to explore overnight visits with the father at his home. The society appeared to be moving towards a plan of unsupervised overnight access between the father and the two younger children while further investigating the father’s plan.
[38] At the hearing before me on July 22, 2020, the society advised the court of this position and that it wished to exercise its discretion in this manner. The maternal aunt did not agree to any overnight visits between the father and the children at that time and stated that she was fearful of the father.
[39] The court advised the society that before it considers moving towards any unsupervised overnight access with the father, it will need to bring a motion with supporting evidence of this request, which should include further information, if possible, regarding the status of the ongoing police investigation into the mother’s death. The court also directed the society to include a copy of the father’s police records in the motion materials.
[40] The court also directed Legal Aid Ontario to provide state funded counsel for the aunt prior to the motion being heard. The aunt was granted a legal aid certificate and retained counsel [^1].
[41] On November 28, 2019, the society brought its motion to expand the father’s access to unsupervised overnight visits.
[42] The hearing was lengthy and contested. The court reserved its decision, which was then very regrettably delayed.
[43] Prior to the release of its decision, the government declared a state of emergency as a result of the Covid-19 global pandemic. The court then requested further submissions from the parties regarding the impact of the pandemic on the father’s access and the parties’ positions regarding an expansion of access at that time.
[44] In March of 2020, the court learned that the father’s in-person community access had been suspended and that the father was having virtual visits with the children.
[45] In May of 2020, the father requested that in-person visits resume at the society’s offices because he was worried that if the children became ill, he would be suspected of not following Covid-19 protocols. Society workers again observed that the father’s access with the children was child focused, nurturing and fun.
[46] As restrictions in the province lifted, the father resumed visits with the children at his home for four hours on the weekends. The children reported enjoying the visits with their father and extended family and no concerns were noted or raised.
[47] On August 31, 2020, the court released its decision relating to the expansion of access between the father and the children. For detailed reasons, the court granted the father unsupervised overnight access twice per month at the father’s home subject to the father and his family complying with all Covid-19 government protocols and directives.
[48] The first overnight visit occurred on September 11, 2020. The visits were going well, however, on October 8, 2020, the visits had to be cancelled because the paternal grandfather had suffered a heart attack resulting in surgery. The family was worried about Covid-19 issues with the children given the paternal grandfather’s fragile medical status at that time. (The father lives with the paternal grandparents).
[49] The visits resumed in late October 2020 and on November 23, 2020, following further negotiations, the parties reached an agreement that the father’s parenting time with the children be increased to three out of four weekends each month at his home, from Saturday at 1:00 PM to Sunday at 1:00 PM, which the court approved.
[50] According to the society and the father, the father’s weekend visits with the children have been going well.
Ongoing Concerns Raised by Maternal Aunt and the Father
[51] Despite the significant expansion of the father’s access or parenting time with the children, the maternal aunt does not agree with the society that the father’s visits are going well. She continued to express concerns about the father’s history of violence and threats made by him against the mother and herself. She has expressed worries that the father treats the oldest child G. differently because he is not G.’s biological father. She has further expressed concerns about the father’s consistency with access visits, and that the children have behavioral issues after the weekend visits.
[52] More recently, on March 29, 2021, the maternal aunt reported to the society that following an access visit, the middle child Y. apparently reported that the father stated: “ I am going to get a knife and kill [the maternal aunt]. The society investigated this alleged disclosure and did not verify it. The father was very upset about this report and denied making any such statements during his interviews with child protection workers.
[53] The father has also reported his concerns to the society that the maternal aunt continues to believe that he was involved on the mother’s death and that she is telling the children this. He believes that the maternal aunt is exposing the children to negative information and conversations in an attempt to alienate them from him. On April 21, 2021, the father reported to the society that during an access visit the youngest child got very upset and started crying and stated, “ Daddy, I don’t want you to go to jail.” On another occasion the oldest child G. asked the father, “Did you shoot my Mommy in the head?”
[54] On another occasion, the father states that the middle child Y. approached him and informed him that the maternal family has told her that he used to “beat up Mommy and fight with her all the time.”
[55] The father has also reported concerns to the society that the aunt’s fiancé grabbed G. by the arm and dragged him after becoming angry with him, based on statements made by G. during a recent visit. The society investigated this incident and did not verify protection concerns.
[56] The father strongly believes that the maternal aunt and the extended maternal family are speaking freely about the court case in front of the children and impressing upon them their very negative views about the father.
Child Protection Mediation and the Aunt’s CLRA Application, dated January 26, 2021
[57] On January 15, 2021, following the expansion of the father’s weekend access in November of 2020, the parties appeared before the court. They were unable to resolve a final parenting plan and any further expansion of the father’s access. The parties agreed to child protection mediation.
[58] An OCL counsel was assigned for all three children in the mediation and the court also made an order for legal representation for the oldest child, G. (now 9 years old) in the child protection proceeding. A mediator had been agreed upon and was available to start.
[59] However, on January 30, 2021, following the January 15th court appearance, before mediation had started, the maternal aunt served the father with a private domestic application under the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as amended (the “CLRA”) seeking temporary and final orders for sole custody of all three children and access to the father only as agreed. [^2] The first appearance in this application was March 15, 2021 in this court.
[60] In reviewing the CLRA application and the alleged facts supporting her claims, the maternal aunt states that the father is a violent and abusive man with a history of serious violence against the mother. It seems apparent that the aunt believes or continues to suspect that the father was involved in the mother’s death. She sets out the history leading up to the mother’s death and states that “approximately eight days before the death of the children’s mother, [the mother] had received angry text messages from the [father] where he threatened to kill her”. She further sets out that the father was a ‘person of interest’ in the police investigation. She alleges that after the children were placed in her care, the father communicated with her in an inappropriate and aggressive manner. She also seeks a restraining order against the father.
[61] Following the receipt of the aunt’s CLRA application, the child protection mediation did not proceed.
[62] This aunt’s application is currently stayed pending the protection application, by operation of law. However, the aunt intends to bring a motion to lift the stay of her application if the court does not grant the society’s motion to withdraw. She also intends to bring an immediate motion for the temporary orders that she is seeking under the CLRA application.
The Society’s Amended Protection Application dated March 21, 2021
[63] On March 26, 2021, the society amended its protection application. The society sought the same protection findings, however, relating to disposition, it sought final section 102 custody orders that the children Y. and L. be placed in the custody of their father, and that the child G. be placed in the custody of his maternal aunt, along with the usual incidents of custody for both the father and maternal aunt and that the orders be deemed parenting and decision making responsibility orders under the CLRA.
[64] Detailed additional orders for access between the siblings, the maternal aunt and the father are also sought by the society in the amended application.
[65] The father, through his counsel, has served an amended answer and plan of care regarding the children. The father wants the two younger children (his biological children) eventually placed in his care. He states that he will facilitate generous weekend access between G., the oldest child (his step-son) and the two younger children. The father acknowledges that the oldest child G. has had a very strong connection to the maternal family since his birth and has expressed concern about being removed from their care. The father he does not want to take G. away from the maternal family if those are G.’s wishes.
[66] In her amended answer and plan, the maternal aunt is seeking to permanently plan for all three children, with access to the father. She does not believe it is in the children’s best interests to be placed in the father’s care or that the siblings should be separated.
[67] The father lives with the paternal grandparents and has the support of extended family. He has successfully completed parenting courses during this proceeding at the society’s request. The maternal aunt lives with her fiancé and the maternal grandmother, who also support her in caring for the children.
[68] A settlement conference in the child protection proceeding was scheduled for June 17, 2021. If the matter did not resolve in that date, parties are proceeding to a trial.
The Society’s Request to Withdraw and the Parties’ Respective Positions
[69] On May 20, 2021, approximately eight weeks after the society’s decision to amend the application, the society brought a 14b motion advising that it had now reconsidered it position and was seeking to withdraw the protection application. It sought to bring a motion for this request on the June 17th hearing date.
[70] It is now the society’s position that there are no ongoing child protection concerns that require continued society intervention and that all of the protection concerns have been adequately addressed and resolved. The father does not pose a risk to his children’s safety and well-being based on his very positive access with the children over the past two years, his participation in programming to address the historical domestic violence, his extended family support, and the fact that he is no longer a suspect in the police investigation of the mother’s death.
[71] According to the affidavit of the family service worker “the father has worked diligently to address the initial child protection concerns and has demonstrated his love and commitment to long-term parenting”. Further, there have been no protection concerns identified related to the aunt’s care of the children and the children have continued to do well in her care.
[72] The society further submits that although both the father and the aunt have expressed ongoing concerns about each other, the society has reviewed their concerns and believes that they do not meet the threshold for continued child protection intervention.
[73] It is the father’s position that contrary to the society’s assertions, there does exist ongoing protection concerns regarding the maternal aunt’s care of the children and the impact of her care on his relationship with the children. These concerns include, according the father, the children being encouraged to fabricate allegations against him, the aunt regularly involving the children in the ongoing court proceedings, and the aunt and the maternal family’s attempts to “impress upon the children their personal belief of the father’s involvement in their mother’s death, among other concerns.
[74] The father further submits that the withdrawal of the child protection proceeding at this stage in the process would be very prejudicial to both him and the children. It would certainly affect the fairness of the pending custody litigation and would give the aunt an unfair litigation advantage.
[75] Somewhat surprisingly (or perhaps not), the maternal aunt supports the society’s withdrawal. During submissions, the maternal aunt’s counsel asserted that there are “ongoing parenting issues, but not ongoing child protection concerns,” notwithstanding the aunt’s belief that the father is a violent and abusive man who was involved in the mother’s death. The aunt’s counsel submits that the family does not need the ongoing “check-ins” and intervention by the society in the family’s life. She points out that the family (domestic) court deals with family violence issues all of the time and it is very familiar with addressing these issues as well as more complex family dynamics. She submits that the family court has a “more extensive toolkit” in dealing with family violence issues than the child protection court, particularly under the new amendments to the CLRA legislation.
The Law and Governing Principles
[76] The society’s motion to withdraw is governed by the Child Youth and Family Services Act, S.O. 2017, c. 14, Sched. 1 (the "CYFSA"). Rule 12 of the Family Law Rules, which provides for a unilateral withdrawal of a case by a party, does not apply to child protection proceedings: See Children’s Aid Society of Hamilton-Wentworth v. N.(K.), [2002] O.J. No. 4014, 2002 CarswellOnt 3409; Catholic Children’s Aid Society of Toronto v. B.(D.), [2002] O.J. No. 2318; 2002 CarswellOnt. 1868 (Ont. C.J.).
[77] Section 90 (1) of the CYFSA provides that where a child protection 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, the court shall hold a hearing to determine the issue and make an order under section 101.
[78] The Act does not define “hearing”. A hearing may be a summary judgment motion or motion on affidavit evidence, an agreed statement of facts, or a viva voce trial. See: Catholic Children’s Aid Society of Toronto v. B.(D.), supra, at paragraph 10.
[79] The case law is clear that once a children’s aid society has commenced a protection application, the wording of subsection 90(1) requires that the society accede to the court's power to have the determination of protection made by the court. To allow the Society to unilaterally withdraw an application would usurp the court’s function to decide if a child is in need of protection. See: Windsor-Essex Children’s Aid Society v. J.W., 2015 ONCJ 297 per Justice Barry Tobin, at paragraph 14.
[80] This means that the court has the obligation to make such a determination in the remainder of the process, whether that determination of protection is to be made by the court in the case of the society's wishing to withdraw an application or in the case of the society and parents seeking approval of minutes of settlement, or in the case of the parties seeking a determination of protection by way of a full hearing. See: Children’s Aid Society of Hamilton-Wentworth v. N.(K.), supra, per Justice R.J. Mazza at paragraph 27.
[81] The legislation does not set out what factors a court must consider when determining whether a withdrawal would be an appropriate disposition, but these factors have been developed in the case law.
[82] In Catholic Children’s Aid Society of Toronto v. D.B., [2002] O.J. No. 2318; CarswellOnt. 1868 (Ont. C.J.), Justice Penny Jones identified the following factors that a court should consider when determining a society’s request to withdraw, at paragraph 11 of her decision:
- Whether any continuing child 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.
[83] In considering the above factors, Justice Jones states the following at paragraphs 12 to 16 of her decision:
“[12] If I were satisfied that there were no continuing grounds for protection, I would permit a withdrawal of the protection application regardless of whether all parties consented. Trial time is valuable and a protection trial is not a forum for a parent to prove a point or obtain vindication.
[13] The consent of the parties to a withdrawal would be persuasive, but not determinative. Similarly, in appropriate circumstances, the lack of consent would not be a bar to such relief, provided I were satisfied that the proposed disposition or plan addressed the significant societal interest in the welfare of children apparently in need of protection.
[14] The reason or reasons given for the request to withdraw the application must be considered in each case. I can anticipate situations in which I would agree to an application’s being withdrawn even when the grounds for a protection finding remain outstanding. For example, I might agree to a withdrawal if an allegedly abusive parent had been sentenced to a lengthy jail term on a totally unrelated matter or the grounds for protection still exist but were apparently manageable given the co-operative approach adopted by the parent to society involvement.
[15] In cases 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.”
[84] In Children’s Aid Society of Algoma v. A.S., [2011] O.J. No. 5612, 2011 ONCJ 393, Justice John Kukurin set out the following additional factors that a court should consider, at paragraphs 35 of his decision:
- 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 are the 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?
[85] In Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.R., 2021 ONCJ 41, a recent decision which reviewed all of the above factors, Justice Kukurin held that a court should also consider the following when determining a society’s request to withdraw:
- If the Child, Youth and Family Services Act, 2017, requires the court to hold a hearing to determine 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?
- What prejudice, if any, and to whom, would result if leave to withdraw is granted?
- If leave is granted, what becomes of the claims made by respondents (or perhaps a child) in any Answer filed in the proceeding?
- Does the history of the litigation play any role in the decision whether or not to grant leave?
- Is there a public interest in holding the "finding in need of protection" hearing before granting the society leave to withdraw?
[86] In the case before Justice Kukurin (similar to the case before this court), no finding of protection had been made regarding the subject child after more than two years of litigation. The operative order continued to be the temporary ‘without prejudice” order made at the commencement of the proceeding when the society requested leave to withdraw. In expressing his concern about granting leave to withdraw at that stage in the proceeding, Justice Kukurin stated the following:
“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 it at all. This is not a message that this court want 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.” See Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.R., supra, at paragraph 33.
Application of the Law to the Facts of this Case
[87] For the reasons that follow, the society’s motion to withdraw is not granted.
[88] In my view, there are serious ongoing protection concerns in this case. This case commenced following the mother’s murder by a still unknown suspect. There is a documented history of violence between the mother and father to which the children, in particular the oldest child, were exposed. The maternal aunt still believes that the father was involved in the mother’s murder. The father vehemently denies this.
[89] Both the father and the maternal aunt have competing plans for primary residence and care for the children. The society has supported the father’s plan in its amended protection application, but its position and how it will participate, if at all, in the pending CLRA application is very unclear, which is a private dispute between two individual litigants.
[90] It is clear that the CLRA application judge will need to make findings of fact regarding the history of domestic violence between the father and the mother, the father’s alleged threats to the mother and the aunt and whether the father had any involvement in the mother’s death, based on a review of the aunt’s application, and the facts that she has set out in support of her claim for sole decision making responsibility and primary care.
[91] I am concerned that the society’s request to divest itself of the protection matter is, as Justice Jones described it, “a handing off” [^3] of its responsibility to ensure the protection of children to a private litigant. I do not anticipate or expect that the expertise, evidence-gathering abilities, and resources enjoyed by the society to be shared equally by an individual litigant. I expect that the case management judge in the private dispute would want to hear from the society, understand its position, and review society records, given the very serious circumstances in which the child protection application arose, and the very serious allegations made by the maternal aunt in the CLRA application.
[92] On the facts of this case, the father’s claims for parenting orders involving the primary care and residence of the children will be compromised or prejudiced by a withdrawal of the protection application, as the withdrawal would leave unresolved the outstanding protection issues and leave the domestic court judge to rule on the validity of the aunt’s claims that the father is a violent and abusive man, with little assistance from the society.
[93] The society is in the best position to continue to investigate the aunt’s claims and protect the children from the ongoing risk of emotional and psychological harm if these claims are not valid, or in fact they, ae valid. The failure to have a protection finding and a full investigation of these claims puts the domestic court judge in a very difficult position in a full and fair hearing of the parties’ competing claims for decision making responsibly and primary care.
[94] I am also concerned that the children will be prejudiced by the society’s withdrawal. The society has been actively involved in monitoring the children’s’ health and safety throughout this proceeding and in providing the services and support that the children need to deal with the trauma they experienced following the death of their mother and the possibility that their father was a suspect.
[95] There is continuing evidence that both the aunt and the father have made multiple reports to the society about the other parent. The reports are serious and involve alleged threats by the father to the aunt, alleged parental alienation by the aunt against the father, and alleged physical abuse by the aunt’s fiancé. The society has investigated all of these reports and have conducted regular check-ins to evaluate the safety and wellbeing of the children.
[96] If the court grants the society’s request to withdraw, it will be far more difficult for the court and the parties to rely on any updating evidence from the society regarding the children’s welfare, as has been the case in the child protection proceeding.
[97] Although the society and the police appear to no longer view the father as a suspect in the mother’s death, the aunt clearly does, as set out in the facts alleged in her CRLA application. She is seeking a restraining order against the father in the CLRA application, as confirmed by her counsel in submissions, and parenting time “as agreed” which allows the aunt to control the father’s parenting time.
[98] This could significantly reduce the father’s current parenting time under the child protection orders. If the society withdraws, all child protection orders with respect to the children terminate.
[99] There is some evidence that the children are being influenced by the maternal aunt’s and the extended maternal family’s views of the father, as set out in this ruling. There is clearly a risk of emotion harm to these children if they believe that their father shot and killed their mother if this is not the case. There is a potential for significant conflict between the father and the maternal aunt if the society withdraws in favour of the pending private custody dispute. The exposure of the children to this conflict could also place the children at risk of emotional harm.
[100] Further, as noted, if the child protection proceeding is withdrawn at this very late stage, shortly before trial, there will be no operative order before the court. The parties will immediately have to argue a temporary parenting motion in the CLRA application. There is a significant risk that the father will be potentially prejudiced by the length of time the children have remained under the aunt’s care under the “without prejudice” order in the child protection proceeding.
[101] The father’s legal representation may also be compromised if the society withdraws. Currently the father has experienced counsel assisting him in the child protection proceeding. However, counsel has only been authorized by Legal Aid Ontario to represent the father in the child protection case given the Charter issues engaged and the expanded financial eligibility guidelines in child protection cases.
[102] The father is at significant risk of losing counsel in a domestic proceeding as he may be deemed financially ineligible for a new certificate at his current income level. The father does not have the resources to retain a lawyer for a domestic proceeding and will be disadvantaged as an unrepresented litigant. The aunt’s very experienced counsel will continue to represent her, as confirmed in submissions.
[103] Finally, OCL counsel’s appointment will also be terminated if the society is granted leave to withdraw. ‘Section 78’ orders appointing OCL counsel in child protection proceedings are mandatory, unlike domestic proceedings in which the court only has the jurisdiction to make a referral to the Office the of the Children’s Lawyer for counsel, which could be potentially be declined by the Children’s Lawyer.
[104] This case has been before the child protection court for more than two years. The case was understandably delayed by the Covid-19 pandemic, the police investigation and for the other reasons set out earlier in this decision. However, there has yet to be a finding that the children are in need of protection by this court, well beyond the statutory timelines set out in the legislation, and the current order continues to be a temporary “without prejudice” one.
[105] I agree with Justice Kukurin’s previously cited comments in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.R., supra, that granting leave to withdraw at this stage in the child protection proceeding does not send a good message to the children’s aid society, nor to the public, and in fact, ultimately usurps the court’s function in determining whether these children are in need of protection, which is in the public’s interest to do before granting the society leave to withdraw.
Conclusion
[106] For all of the above reasons, the society’s motion for leave to withdraw this protection application is dismissed. The parties are returning before me on Wednesday, August 4, 2021 to address the next steps.
[107] I thank counsel for their advocacy and very helpful submissions.
Dated: July 30, 2021
Justice Sheilagh O’Connell
Footnotes
[^1]: See my previous ruling Children’s Aid Society of Toronto v. A.J., M.H., L.M., 2019 ONCJ 537. [^2]: What is now known as “sole decision making responsibility”, “parenting time” and “parenting orders” under the amendments to the CLRA on March 1, 2021. [^3]: Catholic Children’s Aid Society v. D.B., supra, at paragraph 16.