WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act , which deal with the consequences of failure to comply with subsection 45(8), read as follows:
– (8) 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.
– (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)( c ) or subsection 45(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 Superior Court of Justice
DATE: 20120629
DOCKET: FS-12-17994
BETWEEN:
J.F.C.S. Applicant/ Respondent in Appeal - and - L. K. Respondent in Appeal - and -
Lorne Glass , for the Applicant/Respondent in Appeal
Ian Mang , for the Respondent (mother) in Appeal
M. (M) B . Appellant
Jeffrey Wilson , for the Appellant (father) Katharina Janczaruk , O.C.L., for the child J.B. William Sullivan , O.C.L., for the child S.B.
HEARD: May 29, 2012
Czutrin j. :
[ 1 ] The father of two children, aged 14 and 12, appeals the order made at settlement conference, not on consent, in the proceeding before the Ontario Court of Justice (“OCJ”) under the Child and Family Services Act (“ CFSA ”). His appeal is supported by counsel for the children and opposed by the Jewish Family and Child Service of Greater Toronto (“JFCS”) and the mother of the two children.
[ 2 ] On January 5, 2012, the younger child was placed in mother’s care and the older is now placed in the care of JFCS (although with family).
[ 3 ] On March 14, 2012, at a s. 51 CFSA attendances (commonly called a temporary care and custody hearing), this order was continued. At the s. 51 hearing, a settlement conference was set for April 16, 2012 and the case was also placed on the trial assignment court of April 18, 2012. All parties agree that the OCJ judge advised that it was unlikely that the case could be reached because other cases involving infants and Crown wardship trials would take priority.
[ 4 ] Settlement conference briefs were filed for the Settlement Conference heard by the same OCJ judge who had dealt with previous attendances. While one judge, one family is desirable and provides for consistency and familiarity, the rules place restrictions on what may occur at a Settlement Conference, the use of Settlement Conference briefs, when and what orders may be made and the role of a judge who presides over the Settlement Conference thereafter.
[ 5 ] The father’s appeal factum refers to the Settlement Conference and what transpired at the Settlement Conference.
[ 6 ] At the Settlement Conference the OCJ judge removed the matter from the Trial Assignment Court and, as a result, changed the timetable required under Rule 33 of the Family Law Rules (a trial within 120 days of the commencement of the application). He did so without previous notice of such request being made by any party.
[ 7 ] He endorsed that it was in the best interests of the children to do so, and directed the parties to return before the same judge before any further steps take place in the proceeding. The judge subsequently gave reasons.
[ 8 ] At the heart of this appeal is whether at a settlement conference, a judge can lengthen the time set out under Rule 33 pursuant to rule 33(3) if it is in the best interests of the child. There is no dispute that no one served notice of an intention to seek an order under rule 33(3).
[ 9 ] In his reasons, the OCJ judge quoted from the father’s settlement conference brief. I do not intend to quote from the brief as it refers to the father’s offer and to do so would continue to taint the process.
[ 10 ] In his reasons, the OCJ judge referred to the father retaining counsel and that three days prior to the settlement conference, the father advised that he was withdrawing his offer contained in the settlement conference brief.
[ 11 ] In his reasons for removing the case from the Assignment Court and extending the time under rule 33(3) the judge concluded:
... it is not open to a party to lull the other parties into believing that a trial will not be necessary and then, at the virtual last minute, resile from that position, and then complain he that he was not given notice to the Society would be seeking an order which, in this case, the father had led everyone to believe it could not be unnecessary.
[ 12 ] The judge referred to Rule 2 and concluded that this gives him authority to do what is “just and fair” and if he acceded to the father’s argument it would not be fair and just to the other parties. I respectfully disagree.
[ 13 ] He refers to the children’s therapy just beginning in addition to the “fair and just” reasoning to explain why the extension would be in “the children’s best interests.”
[ 14 ] The father puts these questions for my consideration on this appeal:
What are the reasonable or legitimate expectations of parties to litigation when they attend a family law settlement conference before a judge in Ontario?
Even if a judge is of the view that a party’s conduct requires sanctioning, censorship or regulation, can the judge rely upon the material filed at the Settlement Conference to make an adjudicative Order that is not on consent?
Can an Order be made at a Settlement Conference without any prior notice to the other parties, and apparently on motion at the judge’s own initiative?
Can a Settlement Conference Judge decide he or she has jurisdiction to extend the prescribed Family Law Rules timetable for the hearing of the trial based upon the events within the Settlement Conference?
Are the materials filed within a Settlement Conference information upon which a judge can rely to make an order without notice?
Can a judge accept materials at a Settlement Conference, not filed as evidence, review them, and then make an Order?
What is the purpose of rules 17 (23) and 17 (24) (to which the judge did not refer in his “reasons for judgment”) if a Settlement Conference Judge can do so as was done on April 16, 2012?
And having done so, how does the judge then decide to retain jurisdiction as the Case Conference Judge?
[ 15 ] The father submits that if the order is upheld then there is no difference between a settlement conference and a motion or a hearing.
[ 16 ] In considering this appeal, I narrow the issues raised specifically to the facts of this case and that this is a Child and Family Services Act proceeding.
[ 17 ] I do not intend to address the merits of this case itself, but restrict the issues of this appeal to the question of whether, in this case, the settlement conference judge had the jurisdiction, on the material before him, to extend the time prescribed in absence of notice, explicit consent and, in effect change the timetable that was previously set by the judge based on the contents of a settlement conference brief and what transpired at the conference.
[ 18 ] This CFSA application was commenced by JFCS on December 30, 2011.
[ 19 ] It is the unfortunate reality that the courts struggle to meet the 120-day timeline for several reasons including, the volume of work, trial readiness of parties, counsel, the availability and readiness of potential assessors under s. 54 of CFSA , and the coordination of counsel’s schedules.
[ 20 ] With this background and in spite of my respect and high regard of the judge, an experienced and knowledgeable judge, I find that he erred in law and acted contrary to the Rules and as a result the process was unfair to the father. He failed to refer to rules 17(23) and 17(24). I agree with the father that these Rules create a legitimate expectation of certain procedures to assure fairness of process. Parties should be able to complete Settlement Conference Briefs and speak openly at the Settlement Conference without fear that as a result, orders will result. There was no urgency to making an order or a need to protect any party or an order to move things along. (I say this, as there might arise certain limited circumstances, but this was not one.)
[ 21 ] While Rule 2 does allow, and in fact requires judges, parties and counsel at all times to manage cases and the promote the primary objectives of the Rules. Rule 33 is specific and the timelines cannot be extended at a Settlement Conference as it was in this case.
[ 22 ] Having previously placed the case on the assignment court, the judge appeared to be upset at the father, relied on a settlement conference brief as the basis for extending and then somehow connected that to the child’s best interests.
[ 23 ] As counsel for the children correctly submitted, since the appeal deals with a settlement conference judge’s order extending the timelines for a hearing, this requires the judge to consider best interests beyond Rules 2 , 17 and 33 within the context of s. 37 (3) (best interests considerations and factors) of the CFSA . No proper material could have been before the judge for the proper exercise of this consideration.
[ 24 ] An extension of the time lines could have been considered on proper material by a different judge while respecting the Rules (17 (23) and 17 (24)) allowing for procedural fairness, and giving proper best interests considerations.
[ 25 ] It was not fair and just; quite the contrary.
[ 26 ] The cases of Chand v. Chand, 2010 CarswellOnt 1638 (ONT. SCJ) and C.C.A.S.T. v. G.S , 2004 ON SC and other such cases relied on by the JCFS and the mother are distinguishable on their facts and do not address the issues presented by this appeal.
[ 27 ] Here there was no notice, no consent, implied or otherwise. I find that in the circumstances there was procedural unfairness that is not cured by application of Rule 2. If the order was necessary to protect the child’s best interests, it remained open to seek an extension of the time table before another judge who should not look at or consider settlement conference briefs or rely on them to determine best interests.
[ 28 ] I allow the appeal.
[ 29 ] In the circumstances, any consideration of extending the time lines, if requested on motion, and the trial shall considered by a different judge.
[ 30 ] Pending any further order at the OCJ, this case should be placed on the next Assignment Court at the OCJ or such earlier date that may be fixed by an OCJ judge on motion.
Czutrin J.
Released: June 29, 2012
DATE: 20120629
DOCKET: FS-12-17994
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
J.F.C.S. Applicant/Respondent in Appeal - and - L. K. Respondent in Appeal - and – M. (M) B. Appellant
REASONS FOR JUDGMENT
CZUTRIN J.
Released: June 29, 2012