CITATION: ALB v Durham Children’s Aid Society, 2021 ONSC 8041

DIVISIONAL COURT FILE NO.: 537/20

DATE: 20211209

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kristjanson, Favreau and Nishikawa JJ.

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.

BETWEEN:

ALB

Appellant

– and –

DURHAM CHILDREN’S AID SOCIETY and EB

Respondents

-and-

OFFICE OF THE CHILDREN’S LAWYER

ALB, self represented

Cory B. Deyarmond, counsel for the Respondent Durham Children’s Aid Society

EB, self represented

Jane L. Long and Robert Snell, counsel for the Office of the Children’s Lawyer

HEARD: December 3, 2021, at Oshawa by videoconference

BY THE COURT

[1] This is a judicial appeal from an order issued in a child protection proceeding. The appellant father, ALB, appeals the November 4, 2020, order of Jarvis J. granting summary judgment on a motion brought by the respondent Durham Children’s Aid Society (“CAS”): Durham Children's Aid Society v. EB and ALB, 2020 ONSC 6328 The motion judge made a finding that the two children, DAB and EKB, were in need of protection under s. 74(2) of the Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1 (“CYFSA”). The motion judge ordered, under ss. 102 and 104 of the CYFSA, that the children be placed in the sole custody of their mother EB, which is a deemed custody order under s. 28 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”). The motion judge ordered access with ALB in accordance with the children’s wishes.

[2] The young people at the centre of this proceeding, DAB and EKB, are now17 years old. The Office of the Children’s Lawyer (“OCL”) provided legal representation to the children in the child protection proceeding. On behalf of the children, the OCL supported the order made by the motion judge and supports the decision under appeal. The views and wishes of the children match the order: that decision-making should remain with their mother, and that they should determine access with their father. Given their age, those views are essentially dispositive on issues of parenting time and decision-making. The children have not seen their father for more than four years. While ALB argued that he should have medical decision-making authority, the children are almost adults. There is no evidence that they are incapable; if they are, in a few short months those issues will not be dealt with in child protection proceedings or by decision-making orders in family law, but under other statutes such as the Substitute Decisions Act, 1992, S.O. 1992, c 30.

[3] But this appeal doesn’t really seem to be about the children and their best interests. ALB puts forward 16 grounds of appeal, alleging that various judges, CAS workers, CAS and OCL lawyers, and the mother have violated a panoply of statutes including the Conflict of Interest Act, the CYFSA and the Criminal Code. He refers to judicial council complaints against several judges, complaints made to the Law Society of Ontario about lawyers, and complaints about the other professionals.

[4] The motion judge referred to ALB’s conduct preceding the summary judgment motion as “what may be described as a campaign of accusations, threats and vilification of virtually anyone involved in these proceedings with whose views he disagreed”: para. 17. ALB’s written and oral arguments on appeal continue that pattern of behaviour.

[5] The orders sought by ALB in his notice of appeal and related notice of motion are far outside the jurisdiction of this court sitting on appeal from the order of the motion judge. What the father has failed to do is identify any errors of law or palpable and overriding errors of fact in the decision of the motion judge. The appeal is dismissed.

Background Facts

Family Background and CAS Involvement

[6] The children, DAB and EKB, were born in the summer of 2004 and are now 17 years old. Both children have been diagnosed with high functioning autism.

[7] The father and mother separated in 2011, leading to a very high conflict family law dispute. Many professionals were involved with the family, including the Durham CAS. On April 20, 2014, on consent, Rowsell J. awarded the parents joint custody with a parallel parenting arrangement and gave ALB decision-making authority with respect to the children’s medical care and autism treatment.

[8] The Durham CAS became involved with the family again in April 2015 when an anonymous source and other third-party contacts expressed serious concerns about the emotional health of one of the children, conflict between the children and the father, and conflict between the parents. A Durham CAS worker reported the conflict between the parents as the main source of the children’s anxiety, and that the children expressed a desire to not see their father. At the same time the Durham CAS was concerned about escalating mental health issues of the mother, the children’s involvement in their parent’s dispute, and the parents’ lack of cooperation with the Durham CAS and with each other.

Litigation History

[9] The Durham CAS began child protection proceedings in August 2016. On August 17, 2016, Nicholson J. made an order that the OCL provide representation for the children, that the children reside with their mother, and that the father’s access be subject to the discretion of the Durham CAS. By order dated May 10, 2017, Nicholson J. made an order under s. 54 of the Child and Family Services Act, RSO 1990, c C.11, which is now s. 98 of the CYFSA, that an assessment be conducted by Dr. Rex Collins of the Willow Centre in Toronto. That report, dated November 8, 2018, is called the “Collins Assessment” or the “Willow Centre Report” in this decision. ALB brought a motion to dismiss the assessor before completion of the Collins Assessment. Fryer J. dismissed the motion in June 2018.

[10] In August 2017, the father had a supervised visit with the children. The next day, the father emailed a Durham CAS worker and advised that “to protect my children from behaviours of some individuals, I am not going to attend Durham CAS visitations with my children going forward.” The motion judge found that the children had not seen or had any contact with their father since August 2017.

[11] ALB brought two motions without notice to the Durham CAS or the mother in December 2018. He brought two more with notice in January 2019. In a written endorsement in February 2019 Fryer J. noted the number of motions being brought by ALB and made an order requiring the father to obtain leave to bring any further motions. ALB’s motions were to be heard in April 2019 and the Durham CAS’s summary judgment motion was scheduled for May 2019.

[12] ALB brought three more motions in March 2019 seeking the appointment of a different case management judge, and leave for an order to direct the “Executives of Justice”, identified by the father as the Minister of Justice of Canada, the Attorney-General of Ontario, the Chief Justice of Canada, the Chief Justice of Ontario, and the Ontario Judicial Council, to investigate Fryer J., Durham CAS employees involved in the proceedings, the mother and other third parties. Rowsell J. dismissed the motion to appoint a different case management judge and Fryer J. later dismissed the father’s other motions.

[13] The Durham CAS’s summary judgment motion was to be heard on July 9, 2019. It was adjourned several times, as discussed below, and was eventually heard in September 2020. ALB did not file responding material on the summary judgment motion.

Summary Judgment Decision

[14] In a decision released on November 4, 2020, the motion judge held that DAB and EKB were children in need of protection under ss. 74(2)(b)(i) and (ii) and 74(2)(h) of the CYFSA, and that DAB was also in need of protection under s. 74(2)(f). He made an order placing DAB and EKB in the sole custody of the mother, under ss. 102 and 104 of the CYFSA, which is deemed to be a custody order under s. 28 of the CLRA.

Procedural Background to the Appeal

[15] This appeal was set for argument on September 20, 2021. The OCL sought leave to file the Collins Assessment that was referred to in the OCL factum dated July 15, 2021 but was not uploaded to Caselines.

[16] The Collins Assessment was before the motion judge. He referred to it at para. 4, 13, 14, 18, 22-25, and 35(f) of the decision. Indeed, an entire section of the decision is entitled “Dr. Collins’ Assessment.” The Collins Assessment was in ALB’s possession. Indeed, ALB had brought a motion to have Dr. Collins removed as the assessor. Yet ALB requested an adjournment to allow him to file material in response to the Collins Assessment. The Divisional Court appeal was thus adjourned to October 29, 2021. ALB was ordered to file responding materials by October 12th. The panel granted a further extension of time to October 25th following a request by ALB. No evidence was filed in response to the Collins Assessment.

[17] ALB requested an adjournment of the October 29th appeal date for medical reasons, first by contacting the Divisional Court Office on October 20, then by motion in writing October 25. The panel granted the adjournment of the appeal to December 3, 2021. The balance of relief sought on the October 25 motion was argued before the panel on December 3, as discussed below.

Court’s Jurisdiction and Standard of Review

[18] The decision below was made under the CYFSA. An appeal lies to this court under s.121(2.1)(b) of the CYFSA.

[19] There are two aspects to the standard of review on child protection appeals. First, the court owes a special duty to protect the safety and well-being of children. The best interests of the children are the paramount concern in child protection proceedings: Children’s Aid Society of Toronto v. V. L., 2012 ONCA 890, 249 O.A.C. 388. at para. 15.

[20] Second, the appellate standards of review which apply to child protection appeals are set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, and on questions of mixed fact and law where there is no extricable legal issue, the standard is palpable and overriding error.

Ruling on October 25 Motion

[21] In his motion of October 25, ALB sought disclosure and production orders from several parties as described below. ALB submitted that these materials would help him establish the wrongdoing of a variety of CAS, OCL and judicial actors, as well as the mother, and would show why the motion judge erred in his disposition.

[22] The disclosure and production orders sought were for:

(a) orders that ALB could obtain an April 2014 transcript from the family law proceedings to establish a statement made by an OCL lawyer in court, on the record, about both the mother’s conduct and a referral to the Durham CAS by the OCL’s clinical assist, and that the OCL and Durham CAS submit their records to the Divisional Court about that statement;

(b) orders directing the CAS and the OCL to submit their records to the Divisional Court about the alleged offer of a bribe to ALB by the mother, and ALB’s report of the bribe to the Durham CAS;

(c) orders directing the Durham CAS and the OCL to submit their records to Divisional Court about an audio recording of the children talking to ALB, which was recorded by ALB and allegedly listened to by a Durham CAS lawyer. ALB did not seek to admit a transcript of the audio recording;

(d) orders directing the CAS and OCL to provide records about a statement allegedly made by OCL counsel to the children; and

(e) orders for Kinark Child and Family Services to submit information on events from 2016 involving the family to the Divisional Court.

[23] This is an appeal from a decision on a summary judgment motion argued in 2020. The Divisional Court is an appellate court. This court does not order disclosure and production to be made to the court to establish a different factual foundation for the decision below. This court reviews decisions on the record – that is, the record before the motion judge, together with other materials if a motion to admit new or fresh evidence is brought and succeeds.

[24] The time for collecting this evidence was before the motion was argued. ALB faced a summary judgment motion. He had an obligation to file evidence at that time so the evidence could be considered by the motion judge. He failed to do so.

[25] All the orders sought seek disclosure or production of information that existed before the summary judgment motion. Some materials date back to 2014. If ALB believed that these records existed and were relevant, he had a chance to obtain disclosure and production orders in the child protection proceeding. He failed to avail himself of the appropriate procedural mechanisms.

[26] In the October 25 motion, ALB also seeks “enforcement” of the July 12, 2019 order of Bale J. sitting in Divisional Court. ALB had brought a motion in Divisional Court to extend time to perfect his appeals from the orders of Fryer J. dated June 5, 2018 and February 19, 2019 and sought to adjourn the extension of time motion. Meanwhile, the Durham CAS had brought a motion under section 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 seeking to declare ALB a vexatious litigant, and to stay the two appeals from the orders of Fryer J. The motions had been consolidated. Bale J. ordered the motions to be heard in Oshawa in the November 2019 trial sittings, to be organized by the Oshawa trial coordinator. He recommended, but did not order, that the motions be heard by a judge of the Family Court from outside the Durham Region.

[27] Bale J. ordered ALB to file responding materials on the vexatious litigant motion by September 25 and ordered that cross-examinations on the vexatious litigant motion were to be conducted by October 15, 2019. ALB does not seem to appreciate that the ball was in his court. It doesn’t appear that he perfected the appeals, or that he sought a date to argue the motions to extend time. He did not seek to cross-examine the Durham CAS affiants on the vexatious litigant motion before the deadline of October 15, 2019. It appears the Durham CAS did not seek a date to argue the vexatious litigant motion. The order of Bale J. created the conditions for each of the parties to proceed with their motions; neither party appears to have pursued their motions. There is nothing to “enforce” on this appeal about Bale, J.’s order, as it does not apply to the summary judgment order under appeal before this Court.

[28] As a result, the October 25 motion is dismissed.

The Appeal

[29] ALB puts forward 16 grounds of appeal, for which he seeks 27 orders. These grounds, slightly reorganized, using quotes from the Notice of Appeal, are:

1. Alleged errors of law: The motion judge “failed to consider and erred s. 15(1) Constitution Act, 1982,” “failed to consider and erred s. 241(1) of the Criminal Code (counseling suicide to an autistic child),” “failed to consider and erred Child, Youth and Family Services Act (Child Abuse, Child Alienation toward two autistic children),” “failed to consider and erred s. 132 of the Criminal Code (Perjury),” “failed to consider and erred s. 219 of the Criminal Code (Criminal Negligence),” “failed to consider and erred s. 139 of the Criminal Code (Obstructing Justice),” “failed to consider and erred” Conflict of Interest Act, S.O. 2006, c.9, subsections 2, 2.6(1) and 2(iv), and “failed to consider the Rules of Professional Conduct of the Law Society of Ontario.”

2. Alleged errors of fact: The motion judge “failed to consider the indisputable facts which caused serious harm to two autistic children,” and “failed to consider important court records of this child protection case.”

3. Three Durham judges who ruled on the file “intentionally violated the law and committed to professional misconduct to cover up criminal acts of three high ranking employees of Durham CAS.”

4. The motion judge refused to consider the Applicant’s adjournment request made due to COVID-19 symptoms.

5. A named lawyer from the OCL violated the Child, Youth and Family Services Act (child abuse, child alienation toward two autistic children), violated s. 129 of the Criminal Code (obstructing justice), violated s. 219 of the Criminal Code (criminal negligence), violated professional conduct rules of the Law Society of Ontario.

6. A named Durham CAS lawyer violated s. 139 of the Criminal Code (obstructing justice), violated s. 219 of the Criminal Code (criminal negligence), and violated professional conduct rules of Law Society of Ontario.

7. A named worker of the Durham CAS violated s. 219 of the Criminal Code (criminal negligence), violated the Code of Ethics and Standard of Practice of Ontario College of Social Workers and Social Service Workers, and violated s. 139 of the Criminal Code (obstructing justice).

8. The mother EB violated s. 241(1) of the Criminal Code (counselling suicide to an autistic child), violated the Child, Youth and Family Services Act (child abuse, child alienation toward two autistic children), violated s. 132 of the Criminal Code (perjury), violated s. 366 of the Criminal Code (forgery), and violated s. 139 of the Criminal Code (obstructing justice).

[30] In addition to setting aside the order under appeal, ALB seeks 26 orders which generally relate to:

• setting aside a number of earlier decisions and endorsement and directing that three named judges not be involved in the child protection file in the future.
• dismissing an OCL lawyer, a Durham CAS lawyer and a Durham CAS worker from the child protection file.
• removing Durham CAS from the child protection file.
• appointing a new assessor.
• directing a five day trial.
• directing the OCL and the Durham CAS to produce records to this court and to explain their actions in the file to the court.
• allowing ALB to obtain documents from third parties, and to submit transcripts of audio recordings and a video recording.
• allowing ALB to obtain court transcripts of all Divisional Court hearings to submit for investigation to various authorities.

[31] The Divisional Court lacks jurisdiction over most of these allegations and the associated orders sought on this appeal. The allegations were not raised before the motion judge by way of evidence or argument and should not be considered by the appellate court for the first time. As set out by the Court of Appeal in Mroz v. Mroz, 2015 ONCA 171 at para. 83: “In the normal course, appeals are not the proper forum in which to raise brand new issues which significantly expand or alter the landscape of the litigation”. The appellant had the chance to raise these issues on the summary judgment motion and he declined to do so. He should not be granted the opportunity to expand the litigation on appeal, without any opportunity for the parties to call evidence, particularly given the serious nature of the allegations of wrongdoing. In any event, even if the appellant had put forward evidence in support of these grounds and orders, the motion judge would have had no jurisdiction to grant the relief requested. The sole issue before the motion judge was whether to grant the Durham CAS’s motion for summary judgment.

[32] We move on to consider whether the motion judge erred in law or made palpable and overriding errors of fact in granting the relief he did on the motion for summary judgment. We also consider whether the motion judge erred in refusing to grant ALB’s adjournment request.

No Error on Summary Judgment Motion

[33] The motion judge did not err in law in his articulation of the standards to be applied on the summary judgment motion. The motion judge referred to the summary judgment procedure in Rule 16 of the Family Law Rules, O.Reg. 114/99. He cited the standard for granting summary judgment set out by the Supreme Court of Canada in Hyrniak v Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 43. He then cited the approach to summary judgment in child protection proceedings set out by the Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W. et al., 2019 ONCA 316, [2014] O.J. No. 2029 at para. 80. He considered the best interests of the children as required by s. 74(3) of the CYFSA.

[34] The motion judge did not make any palpable and overriding errors in his application of the legal standards to the facts before him. He made no palpable and overriding errors in his findings of fact. He set out extensive reasons for his decision. All his findings of fact were grounded in the evidence before him. The motion judge found that the Durham CAS had met the evidentiary burden for summary judgment and concluded “the evidence that there is no genuine issue for trial is overwhelming.” The motion judge’s key findings are summarized in paragraph 35 of his decision. All these findings were available to the motion judge on the evidence before him. He found that:

(a) The unchallenged evidence of the mother, supporting and supported by the children as conveyed to the court by OCL counsel and the Durham CAS, was that the children are happy, healthy and living in a far more stable and safe environment since these proceedings started and, most likely, for much of their lives before then.

(b) The evidence of the Society’s workers was clear, consistent, convincing and extensively supported by contemporaneous notes, records and, where appropriate, medical (including therapeutic) records. ALB had continually expressed concerns about the children’s healthcare, and concerns about the children’s health issues were frequently expressed in the father’s outreach to politicians and the media. The affidavits contained reports and updating notes from Dr. Lewis, the children’s pediatrician, and other treating physicians (June 12, 2017; October 23, 2017; May 22, 2018; December 5, 2018; and February 8, 2019). In her February report to the Society, Dr. Lewis advised that neither child had “high medical needs any longer”, that the mother was “very compliant with doctor’s appointments for her sons”, that their allergies were stable, their asthma well-controlled, neither was on medication for autism any longer and that neither had been hospitalized in the preceding three years. Dr. Lewis’ report was prepared in response to one of the father’s January 2019 motions expressing concerns about the children’s care.

(c) The Society’s workers acted properly throughout these proceedings with the safety and well-being of the children being their primary focus despite the family’s challenges, particularly the father’s behaviour. The workers attempted to implement (not always successfully), and did implement, services for the children and their parents, monitored the children at home, at school and their activities, worked with the mother on her behaviour, followed up with the father’s concerns about the children’s health and “heroically tried to collaborate with the father in good faith, but without much reciprocity”.

(d) The unchallenged and convincing evidence was that the children have thrived when not exposed to the conflict between their parents. This was supported by the reported reduction in their stress, anxiety, school performance (especially DAB) and their self-reporting.

(e) Despite his expressed concerns about the children’s emotional well-being the father decided on August 3, 2017 to no longer have any contact with them. In the motion judge’s view, this is not the behaviour of a parent wishing to have a relationship with his children or in their best interests. ALB terminated any meaningful contact with the Durham CAS worker dealing with the children in November 2017.

(f) Dr. Collins opined that the father could be “quite rigid and inflexible in his beliefs” and that “this rigidity along with some paranoid thinking” was also reflected in a 2012 psychological assessment of the father. The motion judge found that it was “profoundly unfortunate that most of [the father’s] energies are currently directed to persistently seeking redress through the legal system, leaving little energy available to maintain a relationship with his boys.”

(g) While both parents had significant psychological difficulties, the mother provided “a benign and caring presence” for the children. In her care, the conflict between them had diminished and they had developed “a close and sustaining relationship”.

[35] There was evidence to support the finding that the children were in need of protection. The evidence shows that the children had made progress since they had stopped seeing ALB and were doing well in the care of their mother. There was evidence to support the finding that an order placing the children in the sole custody of their mother with access to their father based on their wishes was in their best interests.

[36] As much as he pleads errors of fact, ALB failed to put evidence before the court on the motion for summary judgment. ALB argues that he did provide evidence on the summary judgment motion, through a Form 14C confirmation of motion provided in September 2020 with several attachments. The Form 14C with its attachments does not constitute evidence. There is no affidavit. The Form 14C attachments allege wrongdoing by a variety of professionals involved in the child protection proceedings and a failure to disclose information. But the Form 14C allegations do not address the central issues in the summary judgment proceeding, and a summary judgment decision must be based on relevant, cogent, admissible evidence. Moreover, none of the information in the 14C could have made a difference in the result of the motion for summary judgment given the credible, admissible affidavit evidence filed by the Durham CAS.

No Error in Refusing Adjournment in September 2020

[37] Finally, we do not find that the motion judge erred in failing to grant an adjournment at the return of the summary judgment motion in September 2020, considering the extensive delays in the child protection proceedings, the father’s failure to participate in the motion, and prior adjournments of the summary judgment motion.

[38] As discussed below, ALB had sought an adjournment by a Form 14C (confirmation of motion form) with attachments. The Notice of Appeal alleges that the motion judge “intentionally refused to consider the applicants adjournment request” because the Form 14C attachments included evidence submitted to the Attorney General, the Chief Justice of the Court of Appeal, and the Ontario Judicial Council regarding three named judges who had been involved earlier in the proceedings, and the attachments showed that the judges committed “unlawful and unethical acts.”

[39] The following facts regarding delay and ALB’s failure to participate in the motion are relevant. The Durham CAS commenced the child protection application in August 2016. At the time, the Durham CAS was seeking a finding that the children were in need of protection, that they be placed in the care of the mother subject to supervision for six months, and that access with ALB take place at the discretion of the Durham CAS. Both the mother and ALB filed Plans of Care in September 2016. The Durham CAS worked with the family under temporary supervision orders until the spring of 2019, although ALB ceased contact with the children in August 2017 and did not work with the CAS after November 2017.

[40] In March 2019, the Durham CAS filed an amended protection application. While still seeking a finding that the children were in need of protection, they now sought orders that the children be placed in the sole custody of their mother which would be deemed to be an order under the CLRA, so there would no longer be supervision of the mother, and the children would have access with ALB in accordance with their wishes. The mother filed her answer and plan of care on the amended application in April 2019. ALB never filed an answer or plan of care in response to the amended protection application.

[41] On June 14, 2019, Durham CAS brought a motion returnable July 9, 2019 seeking summary judgment on the amended protection application. ALB failed to attend court for the original return date for the motion for summary judgment, and he filed no response to the motion for summary judgment. He suggested he was ill. No medical evidence was provided to the court. The Durham CAS’s motion was adjourned to the sittings in September 2019. Again, ALB did not file responding material on the summary judgment motion.

[42] The Durham CAS’s motion was scheduled to proceed on November 19, 2019. ALB appeared but had a medical emergency during a preliminary ruling and was hospitalized. The motion judge ordered that if for any health reason the father could not attend court on the date to be scheduled then ALB had to provide a medical report from a physician confirming his inability to attend court, the physician’s concerns (if any) about the father being able to participate in these proceedings and, if so, a prognosis. A doctor’s note would not be acceptable. This November 19th endorsement was later typed and forwarded to the parties.

[43] The proceedings were adjourned to January 2020.

[44] Because of the pandemic, regular proceedings of the Ontario Superior Court of Justice were suspended on March 16, 2020. On June 26, 2020, a Central East Notice to the Profession and Family Law Litigants directed that child protection matters be heard.

[45] While he still had filed no response to the motion for summary judgment, ALB did file other unrelated motions.

[46] The Durham CAS’s summary judgment motion was scheduled for September 21, 2020. ALB did not attend the hearing of the motion on September 21, 2020. He sent a confirmation form requesting an adjournment, claiming that he could not attend due to illness. No medical report or even a doctor's note accompanied the request, nor did an agent appear to request an adjournment. This conflicted with the November 2019 endorsement. The motion judge ruled the Durham CAS’s motion would proceed.

[47] ALB chose not to file any evidence on the summary judgment motion in the year between the commencement of the summary judgment motion and argument. ALB was aware of the requirement for medical evidence for adjournments.

[48] Adjournments are discretionary decisions. This court owes deference to the decision by the motion judge not to adjourn, absent an error in principle. We find no error in principle. Given the importance of proceeding without delay in child protection proceedings, the failure to provide medical evidence despite the November 2019 endorsement, and the failure of ALB to participate in any meaningful way in the summary judgment motion, the motion judge’s exercise of discretion to proceed with the summary judgment motion was a reasonable exercise of his discretion.

Motion in Writing Brought After the Hearing

[49] ALB brought a motion in writing on December 7, 2021, after the hearing. ALB seeks an order that the counsel appearing on the appeal “misstated the facts during court hearing on December 3, 2021, they withheld important evidence from the court and they did breach their duty to this court based on the Professional Conduct of the Law Society of Ontario.” ALB restates a request for the balance of the relief sought in his October 25 motion.

[50] ALB sent his notice of motion and affidavit to the Divisional Court and uploaded them into Caselines after the hearing. This was improper. No materials can be filed or uploaded into a Caselines file after a hearing without express direction from the judge.

[51] The motion in writing generally raises the same issues that were argued on the appeal. With respect to submissions made by counsel, ALB was given a right of reply and did address some of the issues now raised in the motion. All issues raised are irrelevant to the disposition of the appeal. The motion is dismissed.

Order

[52] The appeal is dismissed.

[53] While costs are usually not sought by the Durham CAS and the OCL in child protection matters, given the substantive allegations of wrongdoing made by the appellant each party seeks nominal costs in this appeal. The Durham CAS seeks $5,000 and the OCL seeks a “few hundred dollars”. We agree that they should be awarded costs. The costs orders sought are proportionate and reasonable and reflect the concern of this court with the conduct of the appellant on this appeal, particularly the wide-ranging attacks on numerous justice system and child welfare system participants, raised repeatedly in these proceedings. The appellant is to pay the Durham CAS costs of $5,000 all inclusive, and the OCL costs of $500 all inclusive. Costs are to be paid within 30 days of the release of this decision.

“Kristjanson J.”

“Favreau J.”

“Nishikawa J.”

Released: December 9, 2021

CITATION: ALB v Durham Children’s Aid Society, 2021 ONSC 8041

DIVISIONAL COURT FILE NO.: 537/20

DATE: 20211209

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kristjanson, Favreau and Nishikawa JJ.

BETWEEN:

ALB

Appellant

– and –

DURHAM CHILDREN’S AID SOCIETY

Respondent

-and –

EB

Respondent

REASONS FOR JUDGMENT

Released: December 9, 2021