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.
CITATION: Children’s Aid Society of Toronto v. S.G., 2023 ONCJ 47
DATE: January 30, 2023
COURT FILE NO. C43476/23
ONTARIO COURT OF JUSTICE
B E T W E E N:
CHILDREN’S AID SOCIETY OF TORONTO
JUSTINE SHERMAN, for the APPLICANT
APPLICANT
- and -
S.G. and D.G.
The RESPONDENT, S.G., acting in person
O. OPREA, for the RESPONDENT, D.G.
RESPONDENTS
HEARD: JANUARY 30, 2023
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
[1] The Children’s Aid Society of Toronto (the society) brought a motion returnable today within its protection application seeking to place the subject child, N.G. (age 5), in the temporary care of the respondent S.G. (the father), subject to eleven terms of supervision. It sought an order that temporary parenting time by the respondent D.G. (the mother), take place a minimum of once each week with the level of supervision, location and duration at the society’s discretion.
[2] The child has resided with the father since March 2022.
[3] The society set out that it is seeking this relief because:
a) The father is imposing unreasonable barriers and restrictions on the mother’s parenting time with the child.
b) The father does not support the child having parenting time with the child, placing the child at emotional risk of harm.
c) The father continues to make unverified allegations against the mother.
d) The father is unwilling to work with the society to make a plan for safe and meaningful parenting time between the mother and the child.
Part Two – Discussion
[4] The court adjourned the protection application and motion today and indicated that short written reasons would follow.
[5] Subsection 94 (2) of the Child, Youth and Family Services Act, 2017 (the CYFSA) states that where a hearing is adjourned, the court shall make a temporary order for care and custody of the child. However, the court is not required to make an access order when it adjourns a protection application, nor is it required to order terms of supervision. See: Nogdawindamin Family and Community Services v. A.K., 2021 ONCJ 394.
[6] On an unopposed, temporary without prejudice basis, the court orders that the child shall remain in the temporary care and custody of the father.
[7] The court advised the parties that, at this time, it was not prepared to make temporary parenting time or supervision orders.
[8] This case has been before the Superior Court of Justice pursuant to the Children’s Law Reform Act (the CLRA) since March 2022. This court was advised that there have been at least six appearances in that court.
[9] The case had come before three different judges at the Superior Court of Justice before it came before Justice James F. Diamond on October 27, 2022, who appears to now be case managing the matter.
[10] Justice Diamond ordered on October 27, 2022 that the mother have temporary supervised parenting time at Access for Parents and Children in Ontario (APCO) every Sunday for two hours.
[11] This court was advised that this parenting time has not taken place due to APCO’s policy of not accepting cases where the society is involved.
[12] On December 1, 2022, Justice Diamond adjourned the temporary parenting time motions until February 7, 2023. This court was also advised that a case conference is scheduled in the Superior Court of Justice for February 22, 2023.
[13] This family requires a consistent judicial approach, both with respect to determining what temporary parenting orders are in the child’s best interests and how best to enforce them. Justice Diamond has started a case management process. At this point, he is the judge who knows the most about this family. He has met the respondents twice. He has the benefit of having received affidavit material from both respondents – this court only has the society’s material. It does not help the child to have the parenting and enforcement issues placed before a fifth judge who does not know the family.
[14] It is also very confusing for parties to appear before different judges who might take different approaches, particularly judges at different court levels.
[15] Multiple proceedings are to be avoided unless necessary. Here, they are not necessary at this time, particularly since the parenting time issue will be before the Superior Court of Justice next week.
[16] The mother should ensure that the society’s affidavit material is before Justice Diamond for the February 7, 2023 court appearance. It also makes sense for the society’s counsel and society worker to be available at that appearance, in the event that Justice Diamond seeks input from them.
[17] The society can assist this family by offering options for Justice Diamond at the next court date. Perhaps the society can provide short-term supervision of the mother’s parenting time. It can provide its observation notes of such visits to the court. It can set out what services it can provide to the family and report to the court on whether the parties are receptive to such services and if they are meaningfully engaging in them.
[18] Under section 103 of the CYFSA, this proceeding stays any proceeding under the CLRA respecting decision-making responsibility and parenting time, except by leave of the court hearing that matter – in this case the Superior Court of Justice.
[19] For the reasons set out above, this might be an appropriate case to grant leave to continue the matter in the Superior Court of Justice. Or, Justice Diamond may decide that there are a wider range of options for a court hearing the matter under the CYFSA than there are for a court under the CLRA, to ensure that parenting time takes place and to protect the child from emotional harm. If so, leave may not be granted.
[20] The court is also adjourning this matter because of the short notice given to the parties of this motion – six days. The father is self-represented. He needs more time to file responding material. This was not an urgent motion. The matter can best be described as chronic. The respondents should have first been provided with 30 days to file their Answers/Plans of Care and a case conference should have been scheduled before a motion was brought. See the comments of Justice John Kukurin in paragraphs 8-15 of Nogdawindamin Family and Community Services v. A.K., supra..
Part Three – Conclusion
[21] A temporary without prejudice order will go on the following terms:
a) The protection application and motion are adjourned until April 6, 2023 at 10:00 a.m., to be heard by videoconference – 45 minutes.
b) The child shall remain in the temporary care and custody of the father pending further court order.
c) On the return date counsel are to provide this court with copies of any endorsements made in the Superior Court of Justice.
[22] This case is another example of the need for a Unified Family Court in Toronto where one court can co-ordinate and case manage both the domestic and child protection cases. This process is costly and confusing for the parties and risks having the best interests of children lost in that confusion.
[23] Court staff are directed to send a copy of this endorsement to Justice Diamond at the Superior Court of Justice.
Released: January 30, 2023
Justice Stanley B. Sherr