Court File and Parties

CITATION: Simcoe Muskoka Child, Youth and Family Services v. L.V., 2019 ONSC 1366

DIVISIONAL COURT FILE NO.: 1010-DC-16

DATE: 20190125

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Simcoe Muskoka Child, Youth and Family Services, Applicant

AND:

D.H., Appellant

AND:

L.V., Respondent

BEFORE: D.L. Corbett, Myers and Sheard JJ.

COUNSEL: Rachel Leck, lawyer for SMCYFS

S. Stephen Sands, lawyer for DH

Jason Herbert, lawyer for LV

Ian Ross, lawyer for OCL

HEARD at Oshawa: January 25, 2019

Endorsement

W A R N I N G

This is a case subject to the Child, Youth and Family Services Act, 2017, and specifically to the publication prohibitions in subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deal with the penal consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(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.

THE COURT (Orally)

[1] The OCL seeks an order to admit fresh evidence, being an affidavit of Tashana Aziz sworn January 4, 2019, reporting the views and preferences of the child. The appellant does not object, but requests an adjournment to file responding evidence from the appellant and to cross-examine Ms Aziz.

[2] The appellant has had the evidence for at least two weeks. This is a child protection appeal involving estrangement between father and daughter. The daughter is nearly 16 years old. It is to be expected that evidence will be provided to the appeal panel to update the court on the child’s situation. In this case, the proceedings before the motions judge concluded more than 2.0 years ago. The appellant and his counsel should have expected an updating affidavit such as the one tendered by the OCL. Two weeks is plenty of time to provide a responding affidavit, which could have been walked into court today – a process which the OCL suggested when it learned of the appellant’s adjournment request.

[3] In respect to the request to cross-examine Ms Aziz, the OCL offered to make her available before today’s hearing, or to make her available at the hearing. The appellant rejected this request. We do not accept the appellant’s argument that he was not available for the past two weeks because of counsel’s work obligations for other clients or because the appellant himself was apparently out-of-province, and unavailable to meet with counsel. Child protection cases must take priority. The work required to respond could not have been substantial. Skype, email and the telephone are available to facilitate client-counsel communications over long distances. Two weeks is more than enough time to respond, exercising “reasonable diligence”: R.39.02(3). We considered permitting the appellant to testify before us today. In truly exigent circumstances, where justice so demands, we would not preclude such a process. But in the case before us, the failure to put an affidavit before us today is not explained by truly “exigent circumstances” but by a failure to anticipate and appropriately prioritize a response to the OCL fresh evidence.

[4] Finally, we wish to note the argument that this evidence could have been provided earlier. The court wants current information. An updated interview with the child was conducted in January, 2019, and this was appropriate. Often an updated OCL report is provided immediately before a hearing or even at the hearing itself. Delivery of the report more than 2 weeks before the hearing showed diligence by the OCL and should be the sort of disclosure that should be addressed by other parties promptly rather than being a basis for delay.

[5] The fresh evidence is admitted. The adjournment request is denied.

“D.L. Corbett J.”

D.L. Corbett J.

“Myers J.”

I agree _______________________________

Myers J.

“Sheard J.”

I agree _______________________________

Sheard J.

Date: January 25, 2019