ONTARIO SUPERIOR COURT OF JUSTICE

2012 ONSC 4529
Peterborough COURT FILE NO.: 316/07
DATE: 20120807

BETWEEN

Kawartha Haliburton Children’s Aid Society

Applicant

— and —

T.G. and R.F.

Respondents

COUNSEL:

Paul Lesarge, for applicant

Paula Armstrong, for respondent R.F.

Nicole Lawson, for M. and C.G.

HEARD: July 19, 2012

McKelvey J.

ENDORSEMENT

Introduction

[ 1 ] This is a motion brought by R.F. who is the biological father of J.G. to set aside a Crown wardship order which was granted on October 4, 2011. The basis for the motion is that Mr. F. did not receive notice of the motion with respect to that order. Mr. F.’s motion is opposed by the Kawartha Haliburton Children’s Aid Society (the “Society”) and by M. and C.G. who are the foster parents for the child.

Factual Background

[ 2 ] Mr. F. had a relationship with T.G. who is the mother of the child starting in around 2007. They did not live together and only saw each other once or twice every other month. In February 2010 Ms. G. told Mr. F. that she was pregnant and implied that he might be the father. On the other hand Mr. F. understood that Ms. G. was also seeing someone else who was the father of one of her other children. There was, therefore, some doubt in his mind as to whether he was the biological father. The child was born on […], 2010.

[ 3 ] Mr. F. was advised about the birth shortly after the child was born. He visited Ms. G. infrequently following the birth. On the occasions when he did visit he was told that the child was staying at a friend’s house because he required therapy. In fact, however, the child had been apprehended by the Society almost immediately following his birth and was placed with foster parents who have taken care of the child since very shortly after birth.

[ 4 ] The foster parents have developed a very close bond with the child and the uncontradicted evidence before me indicates that they have done an exceptional job of caring for the child. Within a few months of the placement the foster parents expressed an interest to adopt the child.

[ 5 ] Since birth J. has presented with significant medical and developmental issues. He was born slightly premature and was kept in hospital for about four weeks after his birth because of difficulties feeding. There were significant developmental delays. The child continues up to the present time to require a variety of healthcare providers to assist in his development. These include a physiotherapist, occupational therapist, infant/toddler development worker, speech and language pathologist as well as a dietician and other medical experts.

[ 6 ] On October 4, 2011 the court granted an order for Crown wardship. This order was taken out on consent. No notice was given to Mr. F.. The information from the Society indicates that they tried to obtain information about the identity and whereabouts of the biological father from the mother. However, Ms. G. refused to provide this. Ms. G. initially told the Society that she did not know who the child’s father was as she had been drinking the night he was conceived. Subsequently she told the Society that there were two potential fathers and that both men knew about the child. She was asked to give the names of the two men she suspected to be the father. However, Ms. G. refused saying that they did not want any involvement with J..

[ 7 ] Following the grant of Crown wardship the Society has been working with the foster parents with a plan to arrange for adoption of the child by the foster parents. However, up to the present time no formal steps have been taken with respect to adoption.

[ 8 ] According to Mr. F. he learned from Ms. G.’s sister in November 2011 that J. was apprehended at birth. He was subsequently told by the sister in December 2011 that Ms. G. had relinquished her parental rights. Mr. F. attempted to contact Ms. G. once he learned that she had relinquished her parental rights. He says that he attempted to contact her during the months of January, February and March 2012 but was not able to speak with her. He then followed up with the Society. The information from the Society is that they were contacted initially by Mr. F. on March 16, 2012. Mr. F. told the Society that he thought he was the biological father and that Ms. G. “had been leading him on” in claiming she had J. in her care. He told the Society that he found out in December, 2011 that all of Ms. G.’s children including J. had been made Crown wards. He requested a paternity test and told the Society that if he was the father he wanted to submit a plan to care for J..

[ 9 ] A DNA test was arranged and conducted on April 13, 2012. This test confirmed that Mr. F. is the biological father of J.. A meeting was held on May 1, 2012 by the Society with Mr. F.. He was advised at this time about the DNA results. Shortly after Mr. F. initiated a motion to set aside the order for Crown wardship.

Position of the Parties

[10] Mr. F. seeks an order setting aside the Crown wardship order on the basis that he was not given any notice of the motion. He states that he was misled by Ms. G. that the child was in her care and that he notified the Society of his interest within a reasonable time after discovering that the child was in the Society’s care. It is also suggested that the Society could easily have found out his identity by speaking with either Ms. G.’ mother or sister. It was also asserted that the Society received information about his identity in January, 2012 and failed to follow up. With respect to this issue counsel for Mr. F. points to the initial affidavit of the CAS representative dated June 12, 2012. In that affidavit she states,

“Up until 16 March 2012 the father of J.G. was unknown. Ms. G. had reported that there were two potential biological fathers for the child and that she had notified both men and that they may be J.’s father however she would not reveal their identity to the Society, nor had either father contacted KHCAS up to and including the court date of 4 October, 2011”.

[11] In response to that evidence an affidavit was obtained by the moving party from the sister of T.G. who reported that in early January, 2012 she contacted the Society and spoke to the caseworker for this matter. She told the caseworker that in December she had found out that her sister had given up her rights to all her children. She told the caseworker that she knew the identity of a possible father for J.G.. She states that she named R.F. as the potential father and also provided her information that Mr. F. lived in Oshawa or Whitby.

[12] In a supplemental affidavit on behalf of the Society there is information set out from the caseworker who had the conversation with Ms. G.’ sister. The caseworker advised that she recalled a conversation with the sister but could not recall when it occurred. She had a vague recollection that Ms. G. spoke about J.’s paternity and mentioned the possible identity of a potential father for J.. She did not recall any other specifics about the conversation. It was indicated that the main topic of conversation related to the fact that Ms. G. might be pregnant again.

[13] I conclude from the affidavit evidence that the Society was advised about the identity of Mr. F. in January 2012 and in this regard there would appear to be a discrepancy from the Society’s earlier affidavit. Somewhat surprisingly the caseworker did not make any note of the discussion with the sister and there is no evidence that there was any follow up conducted by the Society once it received this information.

[14] Mr. F. takes the position that he should be given an opportunity to put forward a plan to take care of J.. His counsel agreed, however, that even if the order for Crown wardship is set aside the child should remain temporarily in the custody of the CAS.

[15] Counsel for the CAS takes the position that the Crown wardship order should not be set aside. He stressed that there is no basis to believe that the Society acted improperly. Notice was not given to Mr. F. about the Crown wardship application because his identity was not known to them at the time.

[16] The Society asserts that Mr. F. did not take reasonable steps to assert his parental rights. They refer to the fact that Mr. F. was told early on by Ms. G. that he might be the father of her child. He visited her on several occasions after the birth of the child but never demanded to see the child or question the explanation given by the mother that the child was always at a friend’s house. They also note there is no evidence Mr. F. made any attempt to assert his parental rights in the time period following the birth of his child. They further refer to the fact that by November and December of 2011 Mr. F. became aware that the child was in the custody of the Society. However, he did not follow up with the Society at that point and in fact there was no contact with the Society until March of 2012.

[17] With respect to the order granting Crown wardship the Society points to the fact that there was no obligation to give notice to Mr. F. as he did not fall within the definition of a “parent” under the Child and Family Services Act.

[18] Finally the Society has submitted that the best interests of the child would be best served by denying the motion. The Society refers to the fact that the child has lived with his foster parents for two years. A strong bond has developed between the child and the family he lives with. They have provided a warm loving home for the child and have indicated their intention to adopt the child. The Society believes the best interests of the child are best served with an adoption by the foster parents.

Was Mr. F. entitled to notice of the motion for Crown wardship

[19] Section 39 of the Child and Family Services Act sets out a list of individuals who are parties to a proceeding under Part III of the Child and Family Services Act which is the part dealing with child protection. Under section 39 a child’s “parent” is a party. However, Mr. F. did not fall under the definition of a parent under section 37 of the Act as he was not married to the mother of the child nor was he co-habiting with the mother of the child in a relationship of some permanence at the time of the birth. Nor had Mr. F. at the time filed a declaration of parentage. Counsel for Mr. F. concedes that Mr. F. would not have fallen within the definition of a parent under the Act at the time the Crown wardship order was taken out.

[20] There would, however, appear to be other factors which need to be considered in making a determination as to whether Mr. F. should have received notice.

[21] Under rule 7(5) of the Family Law Rules the court may order, “that any person who should be a party shall be added as a party”. Counsel for the Society acknowledges that if they had known the identity and whereabouts of Mr. F. they would have notified him of their motion for Crown wardship. I conclude on the information before me that it would be usual for a father to be notified about a Crown wardship application if his identity were known even though he might not, strictly speaking, come within the definition of a “parent” under Section 39 of the Child and Family Services Act.

[22] I have considered whether the Society in this case took reasonable steps to try and identify the father’s identity and whereabouts.

[23] It is apparent that the only steps taken by the Society to try and identify Mr. F. was to make enquiries of the mother. In argument, counsel for the Society suggested that financial resource limitations precluded the Society from making any further enquiries. Subsequently he suggested that the enquiries made by the Society were reasonable in the circumstances. In my view the Society’s efforts to identify the biological father were not adequate. Ms. G. had a long history with the Society and had a number of children who were all being cared for by the Society. Given the contradictory information which was provided by Ms. G. by the Society it is hard to understand why the Society did not make further enquiries with other members of the family who might reasonably have had some relevant information. It appears to me that there was a lack of interest on the part of the Society in following up on the issue of the father’s identity. This is reflected in the fact that the Society took no steps to follow up in January, 2012 once they were advised of Mr. F.’s identity.

[24] I accept that the Society has a difficult and challenging role and it is required to carry out its responsibility with finite resources. Nevertheless an order for Crown wardship is an important step and carries very serious consequences for the child and the family. It requires the Society in my view to make reasonable efforts to identify and notify a biological father of a Crown wardship application.

[25] In the Supreme Court of Canada decision in Children’s Aid Society of Metropolitan Toronto v. Lyttle (1973), 1973 13 (SCC) , 34 D.L.R. (3d) 127 the court dealt with a situation where the mother requested that her children be made wards of the Crown so that they could be considered for adoption. The father of the child left the mother some two years after the child’s birth. The mother took the infant with her, lived with another man and had another child. Unknown to the father, the mother went to the Children’s Aid Society and had the children admitted to care. An order was obtained making the two children wards of the Crown. No notice was given to the father. About six months later the father learned that his son had been given away to the Society by the mother. He was told that a wardship order had been made, that more than six months had elapsed and there was nothing more he could do about it.

[26] One of the issues considered by the court was the entitlement of the father to notice of the Crown wardship motion. The court stated,

“I am of the opinion, as was the Ontario Court of Appeal, that the father in this case was entitled to notice of the wardship proceedings. This is so either under ss.19(1)(e) (definition of “parent”) and 24(4) or as a matter of common-law entitlement”.

While the statutory framework for Crown wardship may have changed since the Supreme Court of Canada decision in 1973 their comments about a common-law entitlement to notice remain applicable to the circumstances of this case and reflects fact that an order for Crown wardship is one of the most serious orders a court can make in the child protection area. It also supports a conclusion that a child’s biological father has a legitimate interest to be considered on such an important decision. I therefore conclude that Mr. F. was entitled to notice of the Crown wardship motion.

Is there a prima facie right for Mr. F. to obtain an order setting aside the Crown wardship

[27] The circumstances considered by the Supreme Court of Canada in the Children’s Aid Society of Metropolitan Toronto v. Lyttle (supra) appear to be very similar to the circumstances in the present case. The court held in that case that the father was entitled to assert the nullity of the Crown wardship order in the custody proceedings. This reflects the necessity that the state can remove a child from parental custody only in accordance with the principles of fundamental justice. In the Supreme Court of Canada decision in New Brunswick (Minister of Health and Community Services) v. G(J) , 1999 653 (SCC) , [1999] 3 S.C.R. 46 the court stated,

“Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural. The state may only relieve a parent of custody when it is necessary to protect the best interest of the child, provided there is a fair procedure for making this determination….

For the hearing to be fair, the parent must have an opportunity to present his or her case effectively….if [they are] denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s best interests. There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child’s best interest to remain in his or her care”.

[28] The importance of parental input is also reflected in section 57(4) of the Child and Family Services Act which is the provision which provides for an order for Crown wardship. This subsection states,

“Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this part, the court shall, before making an order for Society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person”.

[29] It is apparent, therefore, that one of the criteria a court is required to consider in a Crown wardship order is the availability of a placement with extended family. As the father had no opportunity for input the court would have no opportunity to consider completely its obligations under subsection 4.

[30] A recent decision in the case of Children’s Aid Society , Region of Halton v. S.N.S. , [2011] O.J. No.5497 also supports a conclusion that the Crown wardship order should be set aside. In this case the court made a final order on consent of the mother that her child be made a Crown ward. However, the respondent father named in the final order was not the true father of the child, a fact that was confirmed by DNA testing six months after the final order was made. The court concluded that the order of the court was a nullity against the biological father and that he should be given a reasonable opportunity to set aside the Crown wardship order.

[31] Based on the above analysis I conclude that, subject to the consideration of any extraordinary circumstances, the Crown wardship order should be treated as a nullity against Mr. F.. I accept that there may come a point when it is too late to question a Crown wardship order. This possibility is referenced in the Lyttle decision (supra) where the court states:

“What concerns me here is whether it is not too late to question the Crown wardship order and whether, in any event it can be questioned in proceedings which do not attack it directly. I do not refer to timely appeal or review when I speak of lateness, because, in my opinion, a nullity gains no validity merely because time has run in respect to procedures prescribed for challenging it. By lateness here I have in mind supervening events which may reasonably be taken to preclude a direct or a collateral attack. I postulate the situation of an adoption order having been made before the father learns of the fate of his child, but with all the parties involved in wardship and adoption proceedings having acted in good faith. There may be doubt in such case whether there would be any way in which the nullity of the wardship order as to the father alone could be pressed to permit him to seek to reclaim his child. It may be that the child’s status would have been altered beyond recall unless it became a child in need of protection and hence subject to wardship proceedings”.

Are there any circumstances such as delay or best interests of the child which would preclude such an order

[32] I have concluded that Mr. F. has a prima facie right to set aside the order of Crown wardship. I now proceed to consider whether there are any circumstances such as his delay, the best interests of the child or an intervening act which should preclude my granting of such an order.

[33] The Society and the foster parents point to the fact that Mr. F. did not take any steps to contact the Society before March 16, 2012. They point to the fact that Mr. F. did not take a serious parental interest in the child following his birth and then failed to promptly contact the Society once he knew of their involvement. It is true that Mr. F. did not “demand” to see the child when he visited Mrs. G. after the birth of the child. However, the information before me indicates that he did visit her on a number of occasions. He was misled about the child’s whereabouts by the mother. Taking into account that there was a real issue as to whether Mr. F. was the actual father I do not believe he acted unreasonably. I also take into account that Mr. F. may well have deferred to the mother’s wishes with respect to his access to the child. Mr. F. did not find out about the Society’s involvement until November or December 2011. He did not take immediate steps to contact the Society but was trying to get in touch with the mother to get further information as to what had happened. This amounted to a delay of about three months which I do not believe is excessive. I also note that to some extent the responsibility for the delay has to be shared with the Children’s Aid Society who were advised of Mr. F.’s identity in early January, 2012. I accept that time is of the essence in dealing with custody issues for a young child. However, I do not accept that a delay of approximately three months when the child was approximately 18 months old should affect Mr. F.’s right to participate in the hearing. The close bonds between the child and the foster parents were well established prior to October 2011 when the wardship order was granted and a delay of three months should not override Mr. F.’s right to challenge the Crown wardship order.

[34] I have also considered whether the best interests of the child should preclude setting aside the order. The opinions of the Society need to be given careful consideration. They are clearly of the view that the child’s best interests are served by an adoption by the foster parents. However, I note that on a Crown wardship application the test is not necessarily whether the child will be better off with parents other than the biological parents. As noted by the court in Saskachewan Minister of Social Services v. S.E. , 1992 8071 (SK KB) , [1992] 5 W.W.R. 289 if that was the criteria for child protection orders, not many children would remain with their natural parents. There is also a growing recognition about the importance of a child’s connection to their biological roots.

[35] It is also significant that following the Crown wardship order there have been no steps taken such as adoption which might reasonably be considered to preclude a direct or collateral attack on the Crown wardship order.

[36] It may well turn out that the Society is successful in satisfying a court that an order for Crown wardship is appropriate. At the present time, however, I believe for the reasons outlined above that the biological father should be given an opportunity to be heard and to present his plan for care.

[37] I agree with the comments of the Supreme Court in Lyttle (supra) where the court states,

“It is difficult, if not impossible, in a case of this kind, involving the welfare of a child to make a decision that will satisfy the conflicting interests of the various parties. Although the courts as well as the legislature hold the best interests of the child to be paramount, the determination of where those best interests lie cannot be an arbitrary one, foreclosing a parent, not shown to be disqualified, from an opportunity to show that he will and can serve his child’s best interests. The legislative policy in protection of adopting parents, reflected in section 31(3), is a commendable one, but although it goes a long way in clearing their claim to a Crown ward, their interest at the point of a mere intention to adopt is not so superior to a parent in the father’s position in this case to warrant denial to him of an opportunity to prove his fitness for custody”.

[38] I therefore conclude that there are no extraordinary circumstances that would mitigate against setting aside the order for Crown wardship.

Service on T.G.

[39] The mother, T.G., was not served with a copy of the motion to set aside the Crown wardship order. As part of the relief in the motion Mr. F. sought an order dispensing with service. An affidavit of service was filed indicating that attempts had been made to serve Ms. G. but she could not be located. There is obviously some urgency in moving forward and dealing with the Crown wardship issue. I have concluded that in the circumstances it is appropriate for me to issue my order. However, to protect Ms. G.’ rights I am going to include a requirement that all of the motion documentation together with a copy of my order and reasons be served on her. Ms. G. is to have 10 days from the date of service to bring a motion to vary this order. She is also to receive copies of any further motions relating to the Crown wardship issue. If it is still not possible to identify the whereabouts for service of Ms. G. a motion may be brought to dispense with service.

Order

[40] For the above noted reasons I make the following order.

(1) The Crown wardship order dated October 4, 2011 is declared to be a nullity as against R.F. only.

(2) The child J.G. born […], 2010 shall remain in the temporary care and custody of the Society until further order.

(3) All documentation relating to this motion as well as a copy of the order and my reasons are to be served on T.G.. Ms. G. shall have 10 days from the date of service to bring a motion to vary this order.

(4) All counsel have agreed that there should be no costs of this motion. Consequently I make no order with respect to costs.

The Honourable Mr. Justice McKelvey

DATE RELEASED: August 7, 2012