WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(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: 2024 03 19 Court File No.: Sudbury C-224-19, ext. 05

Between:

KINA GBEZHGOMI CHILD AND FAMILY SERVICES Applicant

— AND —

L.P. Respondent

— AND —

WIKWEMKOONG UNCEDED TERRITORY Respondent

Before: Justice J. Restoule-Mallozzi

Motion Heard on: March 18, 2024 Decision on Motion Released on: March 19, 2024

Counsel: Rejean Parise, counsel for the applicant, Kina Gbezhgomi Child and Family Services L.P., did not participate Wikwemkoong Unceded Territory, did not participate Gerald D. Brouillette, counsel for the Office of the Children’s Lawyer, legal representative for the Child

RESTOULE-MALLOZZI J.:

Introduction

[1] On March 18, 2024, the Office of the Children’s Lawyer (OCL) filed an urgent 14B Motion on notice to the parties seeking an order setting aside the Summons to Witness served by Kina Gbezhgomi Child and Family Services (Kina) upon the child A.L.P. on March 15, 2024.

[2] The Summons to Witness is in relation to a Secure Treatment Application filed by Kina, to have the child A.L.P. committed to secure treatment for six months. The Secure Treatment Application proceeding is scheduled for March 22, 25, 26, 27, 28, 2024, before me.

[3] The motion could not be determined in chambers due to its substantive and complex legal arguments. The parties were ordered to appear in court to argue this motion, which they did the same day. This is my decision on the motion.

Position of the Parties

[4] The Secure Treatment Application was issued and served on the parties and the OCL on March 15, 2024.

[5] The OCL submitted that questioning is not a right of a party as these proceedings are a Secure Treatment Application and not a Child Protection Application.

[6] The OCL argued Rule 2 defines “child protection cases” as a case under Part V of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA). The OCL maintained that Secure Treatment Applications do not come within this definition as they are under Part VII of the CYFSA.

[7] The OCL submitted children are not parties in child protection proceedings pursuant to section 79, Part V of the CYFSA.

[8] The OCL argued Rule 20(3) of the Family Law Rules, O. Reg. 114/99 (the Rules) does not apply as this is not a child protection case. Kina should have properly brought a motion under Rule 20(5) for an order for questioning of the child but has not done so.

[9] The OCL seeks the order for the Summons to Witness of the child A.L.P. be set aside.

[10] The OCL was unable to provide the court with case law on questioning in a Secure Treatment Application proceeding. It stated it is likely because a Secure Treatment Application is not a Child Protection Application, where questioning is a right under Rule 20(3).

[11] Kina argued Rule 1 states that the Rules apply to all family law cases in the Family Court of the Superior Court of Justice, the Superior Court of Justice and the Ontario Court of Justice, and applies to Parts V, VII and VIII of the CYFSA.

[12] Kina submitted under Rule 1(7.2)(d), the court may make procedural orders that give directions or impose such conditions respecting procedural matters as are just, including an order that a statement setting out what material facts are not in dispute be filed within a specified time (in which case the facts are deemed to be established unless a judge orders otherwise).

[13] Kina served a Request for Information under Rule 20(3)(b) on the OCL on March 12, 2024, to determine what material facts were in dispute to have a more productive and focused Secure Treatment Application proceeding.

[14] Kina argued the OCL is a party to these proceedings through the Child Protection Order – Office of the Children’s Lawyer granted by Justice Bradley on August 15, 2023. As a party, the OCL had a responsibility to respond to the Request for Information.

[15] As the OCL did not respond to the Request for Information, Kina filed a Summons to Witness on the child A.L.P. and on the OCL on March 15, 2024.

[16] Kina seeks to question the child A.L.P. on Appendix A of its Secure Treatment Application and to do a document review. Kina maintained questioning would allow the Secure Treatment Application proceeding to be more just, cost effective, and efficient as Kina would not need to present evidence as to the contextual background and just focus on the Secure Treatment Application criteria under section 164 of the CYFSA.

[17] Kina scheduled an appointment for questioning at the Examiner’s Office for March 18, 2024, at 1:00 p.m.

[18] Kina maintained it gave notice to the OCL on March 12, 2024, of its intention to serve the Summons to Witness. However, Kina conceded proper notice of the Summons to Witness could not have been done until the Secure Treatment Application was issued on March 15, 2024.

[19] Kina further conceded the required notice under Rule 20(13) was not complied with as the Summons to Witness was served on March 15, 2024, yet questioning was scheduled for March 18, 2024.

[20] Kina was unable to present the court with any case law on questioning in relation to a Secure Treatment Application.

Analysis

[21] Secure Treatment Applications are under Part VII: Extraordinary Measures of the CYFSA, and not under Part V: Child Protection of the CYFSA.

[22] As a Secure Treatment Application is not a Child Protection Application, Rule 20(3) does not apply where a party is entitled to obtain information from another party about any issue in the case. Accordingly, Kina did not have the right to serve a Request for Information on the OCL, nor to serve a Summons to Witness on the child A.L.P. and the OCL.

[23] Kina could have brought a motion under Rule 20(5) seeking an order that the child A.L.P. be questioned. It did not do so.

[24] Kina argued the court may make procedural orders under Rule 1(7.2)(d) that a statement setting out what material facts are not in dispute be filed within a specified time (in which case the facts are deemed to be established unless a judge orders otherwise). These proceedings are in relation to a Secure Treatment Application. I am not prepared to make such an order as it would not be just.

Disposition and Order

[25] The OCL’s motion is granted.

[26] The Summons to Witness served on March 15, 2024, upon the child A.L.P. by Kina for questioning in relation to the Secure Treatment Application is set aside.

[27] The OCL requested costs for this motion. As costs submissions were not made at the motion, I reserve my decision on costs until after the Secure Treatment Application.

Released: March 19, 2024 Signed: Justice J. Restoule-Mallozzi