WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to ss. 87(8) and 87(9) of this legislation. These subsections and s. 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the 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.
Court File and Parties
CITATION: J.L. v. Children’s Aid Society of Ottawa, 2021 ONSC 6412
DIVISIONAL COURT FILE NO.: 21-26-28
Ottawa
DATE: 20210928
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Kristjanson and Swartz JJ.
B E T W E E N:
J.L.
Cedric Nahum, for the Appellant
Appellant
- and -
CHILDREN’S AID SOCIETY OF OTTAWA
Hayley Marrison-Shaw, for the Respondent
and S.D.
Respondent
Heard by Videoconference: Aug. 19, 2021
REASONS FOR DECISION
the court:
[1] The appellant appeals the decisions of O’Bonsawin J. finding that the appellant’s two-year-old child is in need of protection (November 24, 2020: 2020 ONSC 7224), and placing the child in the extended care of the Children's Aid Society of Ottawa, establishing the mother and the child as access rights holders and the appellant father, J.L., as an access recipient (December 11, 2020, amended December 14, 2021: 2020 ONSC 7662).
[2] This appeal was expedited in May 2021 for hearing before us in August 2021 as a special panel because of urgency. This is consistent with this court’s practice to give high scheduling priority to appeals in child protection cases.
Summary and Disposition
[3] For the reasons that follow we would allow the appeal and direct that there be a new trial scheduled on an expedited basis. The child has been in care since birth, is now two years old, and every reasonable effort should be made to bring these proceedings to a conclusion.
Issues on Appeal
[4] The appellant, J.L., is the child’s father and raises multiple issues on this appeal. However, it is only necessary to deal with one of these issues. At the end of the Society’s evidence at the trial, the father moved for a non-suit, asking the trial judge to dismiss the case because the Society had not established a prima facie case for a protection order. The trial judge did not put the father to his election whether to call evidence on the protection issue. The trial judge heard arguments from both sides on the non-suit motion, reserved her decision, and adjourned the trial until the following week.
[5] When the trial resumed, the trial judge delivered her decision on the non-suit motion. In it, she decided, on a final basis, that the child is in need of protection. The trial then proceeded on the basis that the only remaining trial issues concerned the proper disposition for the child, given that he was in need of protection.
[6] During the disposition phase of the trial, the father called evidence supporting his claim that the child should be placed with him, with or without terms such as Society supervision. In her final ruling, the trial judge rejected the father’s arguments and placed the child in the care of the Society, with access visits between the father and the child limited to six visits per year, with the child being the access-holder.
[7] Non-suit motions are rarely brought in child protection proceedings. This is as it should be. As we note below, non-suit motions seldom add value to the trial process in civil non-jury, family and child protection matters.
[8] Although non-suit motions are rarely brought in child protection proceedings, when they are brought, they must be heard and decided following the practice established by the appellate jurisprudence. That did not happen here, and in the result the appellant did not get his proper “day in court” on the protection issue. He was entitled to have his evidence heard and considered on the protection issue.
[9] We do not come to this conclusion lightly. While the error is one of procedural fairness, and it is the trial judge’s responsibility to ensure trial fairness, the error arose because counsel failed to address the non-suit issue with the trial judge properly. Then, when it should have been clear to counsel that an error had been made, no objection was made to the trial judge. This conduct by counsel disabled the trial judge from correcting the error and redirecting herself as to the proper process. If this case concerned a claim for damages, we would likely uphold the decision on the basis that counsel failed to raise these issues in a timely way. However, this case concerns the interests of a small child and his connection with his biological father. Both the child and the father are entitled to have these decisions made fairly.
Analysis
Jurisdiction and Standard of Review
[10] The decisions below were made pursuant to the Child, Youth and Family Services Act.[^1] Appeal lies to this court pursuant to s.121(2.1)(b) of that Act.
[11] An appellate standard of review applies to this appeal: correctness on questions of law, palpable and overriding error on questions of fact, and “fairness” on matters of procedural fairness. The issue on which this appeal turns concerns an error in law (failure to follow binding precedent on the process to be followed on a non-suit motion) and procedural fairness (the error of law resulted in fundamental procedural unfairness).
Motions For Non-suit
[12] Motions for non-suit are rare in child protection cases. However, they may be brought. When they are, they are to be addressed in accordance with the practice for non-suit motions that applies to all civil and family trials. This process is set out in the Court of Appeal’s decision in FL Receivables Trust [^2] as follows:
I want to say a few words about non-suit motions in civil non-jury trials. The term "non-suit" refers to a motion brought by the defendant at the close of the plaintiff's evidence to dismiss the action on the ground that the plaintiff has failed to make out a case for the defendant to answer. Neither the Courts of Justice Act, RSO 1990, c. C.43, nor the Rules of Civil Procedure, RRO 1990, Reg. 194, [page566] specifically provides for non-suit motions, but judges continue to have a recognized jurisdiction to entertain these motions.
Still, I question whether in this province a non-suit motion in a civil non-jury trial has much value. In Ontario, when a defendant moves for a non-suit, the defendant must elect whether to call evidence. See Ontario v. Ontario Public Service Employees Union (OPSEU), [1990] O.J. No. 635, 37 O.A.C. 218 (Div. Ct.), at para. 40. If the defendant elects to call evidence, the judge reserves on the motion until the end of the case. If the defendant elects to call no evidence… then the judge rules on the motion immediately after it has been made.
A non-suit motion adds to the time and expense of a trial. And because of the election requirement, it has little practical value. Perhaps a defendant bringing the motion sees a tactical advantage in being able to argue first. To succeed on the motion, however, the defendant must show that the plaintiff has put forward no case to answer, in most lawsuits an onerous task. Why not simply take on the less onerous task of showing that the plaintiff's claim should fail? It is small wonder that most commentators consider that in civil judge alone trials, non-suit motions gain little and are becoming obsolete. See Phipson on Evidence, 16th ed. (London: Sweet & Maxwell, 2005) at 274, and John Sopinka, Donald B. Houston & Melanie Sopinka, The Trial of an Action, 2nd ed. (Toronto: Butterworths Canada, 1999) at 151-52.
[13] These principles apply in child protection cases. Non-suit motions are generally of little value to the process. When these motions are brought, the trial court should observe the following process:
(1) The moving party is to be put to its election whether to call evidence.
(2) Where the moving party elects to call evidence, the trial judge hears the non-suit motion but reserves decision until the end of the case – that is – until all evidence and arguments have been completed on all issues.
(3) Where the moving party elects to call no evidence, then, and only then, should the trial judge provide a final decision on the non-suit issue.
(4) All the evidence is heard on both the protection and the disposition issues in one stage of the trial. A non-suit motion on the “protection” issue is not a basis on which to bifurcate the trial into separate hearings on the “protection” and “disposition” issues. Thus, even where a moving party elects to call no evidence on the protection issue, if the moving party intends to call evidence on the disposition issue, the trial judge is to reserve on the non-suit until after all the evidence has been completed.
[14] Evidence related to disposition and protection issues are often related. Truncating the trial process, as happened here, leads to risks that a second trial may be required if an appellate court disagrees with a decision granting a non-suit. The task of the trial court is to decide all the issues required for the matter to be laid to rest after a full trial. We appreciate that there are cases where some trial efficiency could be gained by ruling on the protection issue first, before spending trial time to hear evidence on disposition. The same can be said in civil proceedings, where the time spent hearing evidence on damages could be saved if the court first decides the issue of liability. “Some efficiency” in the trial process, though, comes at the price of the overall efficiency of the system – the risk of multiple appeals and orders for new trials, where a trial court has not heard evidence and decided all the issues raised at trial. Our model of trial practice generally rejects bifurcated proceedings, and this model is to be followed in trial protection proceedings.
[15] In the case at bar, the appellant brought the non-suit motion at the close of the Society’s case. His counsel provided the trial judge with several authorities at the outset of argument, but no break was taken to review that law before argument was heard.[^3] Counsel for the appellant did not state the test to be applied on a non-suit motion. He did not reference the requirement that the moving party be put to an election as to whether to call evidence. He did not state whether the appellant did, or did not, elect to call evidence. In argument on the merits of the motion, counsel for the appellant framed his submissions on what the evidence establishes, on a balance of probability, and did not frame his submissions around the test for a non-suit: whether the evidence was sufficient, if believed, to establish a prima facie case that the child is in need of protection.
[16] In responding submissions, counsel for the Society did not state the proper test on a non-suit motion for the court. She did not raise the requirement that the moving party be put to his election. She framed her responding submissions around the findings that could be made, on a balance of probabilities, rather than on the basis of the test for a motion for a non-suit.
[17] In short, neither counsel made submissions on the test to be applied or the process to be followed for the non-suit motion. The arguments made to the trial judge were the kind of arguments a judge would expect to hear in final argument on the protection issue.
[18] The trial judge did not raise these points with counsel. She did not state the applicable test herself, nor did she ask counsel to state the test. She did not state the proper process to be followed on the motion for a non-suit, nor did she ask counsel to provide submissions respecting that process. During argument of the motion, the trial judge did not raise any questions about how the substance of the arguments being raised related to the task before her – the non-suit motion.
[19] At the conclusion of argument on the non-suit motion, the trial judge reserved her decision. She advised that she intended to deliver her decision before the trial resumed and that the parties should be prepared to proceed on the disposition issues after she had rendered her decision on the protection issue. Neither counsel raised any concerns about this process with the trial judge. They should have done so. If counsel and the court had been proceeding on the basis of some misunderstanding of the test to be applied and the process to be followed on the non-suit motion, it should have been clear that this was the case when the trial judge took her decision under reserve.
[20] In her decision on the non-suit motion, the trial judge found as follows:
(a) “J.L. argues that the Society has failed in its evidence to establish a prima facie case. It has not established that, on a balance of probabilities, the child is in need of protection and therefore the Society’s Application must be dismissed.” (para. 6)
(b) “I turn to the burden of proof. The Society has the burden of proving, on a balance of probabilities, that the child is in need of protection.” (para. 17)
(c) “the child is in need of protection because there is a risk that he is likely to suffer physical harm by J.L.’s failure to care for, provide for, supervise or protect the child adequately or a pattern of neglect in care for, providing for, supervising or protecting the child. I find that there is a risk that the child is likely to suffer emotional harm resulting from J.L.’s actions.” (para. 24)
(d) “J.L. has self-reported a history of some forms of abuse in his relationships. He also self-reported that he has triggers. There is no evidence to support that his behaviour has improved.” (para. 25)
(e) “What is most concerning is that J.L. lied very recently to Mr. Bondy about having the child in his care half of the time. Furthermore, I question some of the excuses that he provided for missing his access visits.” (para. 28)
(f) “It is real and likely that J.L.’s behaviour and/or the conflict in his life will cause a risk to the child and that he will likely suffer physical harm or a pattern of neglect and emotional harm if he were to be placed in his care.” (para. 30)
The trial judge then concluded as follows: “[f]or the reasons noted above, I dismiss J.L.’s motion for a non-suit. I have concluded in the adjudicative stage that the child is in need of protection. The dispositional stage may now proceed where the court will determine which, if any, of the orders listed in s. 101 of the CYFSA should be made in the child’s best interests. (para. 31)
[21] The protection issue turns on evidence respecting J.L.’s ability to parent. It includes evidence respecting J.L.’s alleged bad behaviour, troubled past, inability to work with others, and dishonesty. J.L. had no opportunity to testify, to respond to this evidence, to give his side of the story, and to face cross examination.
[22] In para. 4 of her reasons, the trial judge stated as follows: “J.L. did not present his evidence. Instead, on November 20, 2020, counsel for J.L. made an oral motion for a non-suit.” This language implies that bringing a motion for a non-suit was an election not to call evidence. That is not the law. The trial judge erred in concluding that the appellant moved for a non-suit “instead” of presenting his evidence. The trial judge erred in not putting the appellant to his election, as to whether to call evidence, and this error, in the result, deprived the appellant of the opportunity to call evidence on the protection issue.
[23] Counsel for the Society argued that, even if it was an error to fail to put the appellant to his election, the appellant called all his evidence during the disposition phase of the trial. The trial judge found in her disposition decision that none of this evidence would have led to a different conclusion on the protection issue. Further, the Society argued, on the basis of the overall record, this was not a “close call” and the result would have been the same in any event. In these circumstances, the Society argued, even if there was unfairness to the appellant in the manner in which the trial unfolded after the non-suit motion was brought, that did not affect the overall decision.
[24] We do not accept this argument. Adverse findings were made against the appellant, on a final basis, before he had testified or called his witnesses. This was fundamentally unfair. That unfairness can be remedied only by a new trial during which the appellant has an opportunity to present evidence before a decision is made.
Child Protection Trials Are Not Bifurcated Proceedings
[25] Child protection trials often used to follow a bifurcated trial process. Some of the language of the trial judge (distinguishing between the “adjudicative” and “dispositional” stages of the trial) hearkens back to this old practice. Such a two-stage process is not contemplated in the legislation and is not sound trial practice. The distinct issues of protection and disposition are addressed by the trial judge in her decision after hearing all of the evidence. In this respect, a child protection trial follows the same trial process that is followed in civil non-jury and family trials. The trial judge hears all the evidence – on liability and on remedies – and then decides all issues. Where a non-suit motion is brought, the court is not to revert to the old practice of a bifurcated proceeding.
Other Issues on Appeal
[26] We would not address the other issues raised by the appellant. In respect to the evidentiary issues raised on this appeal, the rulings at the first trial are not binding at the second trial.
Order and Costs
[27] We allow the appeal, set aside the two impugned decisions, and remit the matter for a new trial before a different trial judge. Every reasonable effort should be made to expedite the hearing of the trial, and the trial court and the parties are exhorted to make efficient use of transcripts from the first trial, supplemented as may be appropriate by further examinations-in-chief and cross examinations.
[28] As should be clear from our reasons, although we have found that the trial judge erred and that this error led to fundamental trial unfairness, we place primary responsibility for this situation on the shoulders of trial counsel. It is noteworthy that Family Law Rule 2(4) places an obligation on parties and lawyers to help the court promote the primary objective. In child protection cases, where the court is asked to consider very serious and highly intrusive orders and where families and children are in crisis, the role of counsel in promoting the primary objective is crucial.
[29] The trial judge was entitled to more assistance than she received from counsel. Counsel for the appellant brought the non-suit motion and handed up caselaw at the outset. It was his responsibility to state the issue before the court on the motion and to provide the law that set out the proper process to be followed. When it appeared that the trial judge intended to follow a process that was inconsistent with the law, it was incumbent on counsel for the moving party to draw this to the trial judge’s attention. When the trial judge advised that she intended to rule on the non-suit motion before hearing evidence from the moving party, it was incumbent on counsel to object and to point out to the trial judge that she should reserve her decision until after hearing the moving party’s evidence. And then, when the trial judge gave her ruling, and went beyond dismissing the non-suit motion to providing a decision on a final basis on the issue of protection, counsel should have objected. When pressed on this point during oral argument before us, counsel noted that it was not proper to argue with a judge after she has made a ruling. That is so. But it is also improper for counsel to fail to raise timely objection so that the court may consider the point and, where the court realizes that a mistake has been made, take steps to try to redress the error without imperilling the entire trial.
[30] Counsel for the Society shares some blame for this situation but based on the transcripts it appears that she was not aware of the proper process to be followed on the non-suit motion. This is understandable given that non-suit motions are rare in child protection proceedings. On the other hand, it is important that the proper test be applied on issues that arise during a child protection trial, and the failure of counsel for the moving party to state the test or make argument organized around the test was a warning sign. With great respect, more rigour must be brought to bear in these situations.
[31] In these circumstances, we would make no order as to costs of the appeal.
D.L. Corbett J.
Kristjanson J.
Swartz J.
Released: September 28, 2021
CITATION: J.L. v. Children’s Aid Society of Ottawa, 2021 ONSC 6412
DIVISIONAL COURT FILE NO.: 21-26-28
Ottawa
DATE: 20210928
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Kristjanson and Swartz JJ.
BETWEEN:
J.L.
Appellant
- and –
Children’s Aid Society of Ottawa and S.D.
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: September 28, 2021
[^1]: Child, Youth and Family Services Act, 2017, SO 2017, c. 14, Sch. 1.
[^2]: FL Receivables Trust 2002-A v. Cobrand Foods Ltd., 2007 ONCA 425, 85 OR (3d) 561, 46 CPC (6th) 23, paras. 12-14, per Laskin J.A.
[^3]: The parties did not provide the court with transcripts of argument on the non-suit motion. This court ordered and reviewed those transcripts. This court did not invite further submissions from the parties, in light of the transcripts, because the transcripts reflected counsel’s submissions in oral argument as to what did – and did not – happen during the non-suit motion.