ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-11-189
DATE: 2012/06/11

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF B.P., born […], 2005 and T.P.-G., born […] , 2008

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant

– and –

J. P., the mother and G.G., the father
Respondents

Mark Hecht, for the Applicant

Audra Bennett, for the Respondent Mother
Wendy Rogers, for the Respondent Father (by her agent Ms. V. Naik)

HEARD: June 6, 2012

REASONS FOR JUDGMENT

Kane J.

[ 1 ] There were three motions returnable on June 6, 2012. Each parent presented a motion to adjourn the trial in this application for Crown Wardship. The trial is scheduled for two weeks commencing June 18, 2012.

[ 2 ] As counsel for the father, Ms. Wendy Rogers advised the court that her health prevented her from acting as counsel for the trial starting June 18, 2012. Ms. Rogers in addition, presented a motion to be removed as solicitor of record due to a breakdown in her relationship with Mr. G.

DECISION

[ 3 ] Each of the parents’ motion to adjourn the trial is dismissed.

[ 4 ] I adjourn the trial however in order to permit the father to retain and instruct new counsel. I am not however prepared to grant an open ended adjournment without fixing a new trial date.

[ 5 ] I grant the order removing Ms. Rogers as solicitor of record for the father.

[ 6 ] The earliest two weeks available from the court is at the end of August, 2012. Counsel for the mother is not available during that time period. The next two week period available from the court will be the new trial date of this action, namely November 13, 2012. Mr. G.’s selection of new counsel must be limited to counsel available to proceed with this two week trial commencing on November 13, 2012.

[ 7 ] The current trial dates of two weeks commencing June 18, 2012 are vacated. In anticipation of this decision, a return date was scheduled for June 18, 2012 at 09:30 hours. With the consent of the parties, that date may be cancelled in advance given the decision herein.

FACTS

[ 8 ] The two children who are the subject of this application are B.P. and T. P.-G. Currently they are 6 and 4 years of age. Both children were apprehended and have remained in the care and custody of the Ottawa Children’s Aid Society (the “CAS”), in a single foster home, since January 21, 2011. There has been no access between the parents and the children since that apprehension.

[ 9 ] The CAS originally opened a file involving these children due to a concern regarding their mother’s care of them in 2008. In August, 2010, CAS again became and has remained involved due to a concern regarding the mother’s parental capacity and her risk of causing emotional harm to the children.

[ 10 ] Until July 11, 2011, the children remained in the care of their parents, J.P. and G.G. These parents voluntarily agreed to ongoing involvement by CAS and to completing certain parental training programs.

[ 11 ] CAS apprehended the children from the parents on January 21, 2011, based on communication from police of their investigation of possible sexual abuse by each parent of an 11 year old babysitter of their two children in issue. Each parent has been charged criminally with sexual offences against a child victim.

[ 12 ] CAS has prohibited any access between the parents and these children since the July 21, 2011 apprehension. Further allegations were subsequently made by one of the children involving these parents and the 11 year old complainant in the criminal charges.

[ 13 ] The trial of the criminal charges against these parents is scheduled to last two weeks and commences October 29, 2012.

[ 14 ] The original January, 2011 CAS application sought six months wardship of these children. The trial dates herein, commencing June 18, 2012, were set on December 6, 2011. CAS states that the parents were advised on that date that CAS would be amending its application to seek Crown Wardship. That amended application was issued on May 16, 2012, and served on May 22, 2012.

ANALYSIS

PARENTS’ MOTION TO ADJOURN BEYOND OCTOBER 31, 2012

[ 15 ] It is settled law that the parents can, without prejudice to their rights in the criminal trial, testify with protection in this CAS application. See Native Child and Family Services of Toronto v. P. (S.), 2009 ONCJ 473, [2010] W.D.F.L. 489; Children’s Aid Society of Thunder Bay v. D. (S.), 2010 ONCJ 721, [2011] W.D.F.L. 2521. See in particular the Evidence Act, R.S.O. 1990, c.E-23 and the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982, (U.K.), 1982, c. 11.

[ 16 ] I am confident that the parents are able to word their answer broadly enough in this application to present the relevant issues without prejudicing their rights in the criminal proceedings. Sufficient time remains available to prepare and file such answer before June 18, 2012.

[ 17 ] I was provided with no evidence as to what specific evidence would not be available to the parents in this upcoming trial because the criminal trial will not be commencing until October 29, 2012, other than the transcripts of evidence from the criminal trial. Those transcripts, although relevant in this proceeding, may or may not be used by the parents in this proceeding. Such evidence therefore only represents a potential source of evidence.

[ 18 ] CAS advises that it will proceed with this trial if adjourned until after the criminal trial, even if either or both parents are acquitted in the criminal trial. The parents are not offering their consent to the children being made Crown Wards if they are convicted of the criminal charges. There is therefore no potential reduction in the number of trials or public resources.

[ 19 ] CAS confirms that it is not seeking to have an assessment of the children conducted before trial. The parents are not seeking permission to nor are they undertaking at this point to have an assessment of the children conducted.

[ 20 ] It appears the parents’ primary immediate focus is on their upcoming criminal trial. If found not guilty however, this trial will still continue.

[ 21 ] The determinative issue remains what is in the best interests of these children and the relevant time requirements under s. 70 of the Child and Family Services Act, R.S.O. 1990, c. C-11 (“ CFSA ”) as amended and Rule 33 of the Family Law Rules, O. Reg. 114/99 (the “Rules”).

[ 22 ] The children have been in apprehension now for 16 months. An order granting an extension today beyond October 31, 2012, would extend that time beyond the statutory limit of 18 months under s. 70 and ss. 70(4). Those statutory provisions on their face direct this court against granting an extension of a temporary wardship order beyond 18 months. I have been provided with no authority to the contrary. The decision of Blishen J. in Children’s Aid Society of Ottawa v. C.A. (22 December 2011), Ottawa, 10-2215 (Ont. Sup. Ct.) is not authority for so doing. That court did not extend the time in that case beyond the relevant s. 70 time limits.

[ 23 ] The Rule 33 timetable of 120 days for a protection hearing has already expired.

[ 24 ] There is in addition no reason to further delay the determination of this proceeding other than the preference of the parents to dispose of their criminal trial before this trial. Criminal trials do not take precedence over or justify an extension of time contrary to s.70 of the Act.

[ 25 ] The parents’ motions for an adjournment of this trial on the grounds argued are therefore dismissed.

ADJOURNMENT AND REMOVAL OF COUNSEL

[ 26 ] The current and apparent lack of health of Ms. Rogers prevents her from continuing as counsel of this trial. Counsel is to be commended, but for health reasons, should not have been present to argue this motion. Mr. G. accordingly finds himself without counsel on the eve of this June 18 th trial and wishes to retain counsel. New counsel cannot be retained and ready to proceed with this trial within one or two weeks.

[ 27 ] Given the above circumstances, I am not prepared to force Mr. G. on to trial without counsel given the nature of relief sought by CAS and the fact that the best interests of the children may potentially be impacted if their father is obliged to proceed without counsel. Independent of s. 70 (4) of the CFSA, this court is responsible to administer the proceedings before it and to do so in a manner which respects the rights of parties to counsel.

[ 28 ] Mr. G. is not responsible for the inability of his counsel to proceed for health reasons. The earliest dates available by the court and counsel are November 13, 2012.

[ 29 ] The motion by Ms. Rogers to withdraw as counsel due to a breakdown in the relationship with Mr. G. is granted.

Kane J.

Released: June 11, 2012

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF B.P., born […], 2005 and T.P-G., born […], 2008 BETWEEN: THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – J. P., the mother and G.G., the father Respondents REASONS FOR JUDGMENT Kane J.

Released: June 11, 2012