COURT FILE NO.: C849/10-01

DATE: October 1, 2012

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

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

RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, Applicant

AND:

C.D.B. and L.D.B., Respondents

BEFORE: HARPER J.

COUNSEL: Tim Price for the Society Hamoody Hassan and Sharon Hassan for C.D.B. Lisa Walters for L.D.B. Salim Khot, Donald Kilpatrick and Barbara Hoover for the Office of the Children’s Lawyer

HEARD: September 12, 2012

ENDORSEMENT

ISSUES

[1] The Office of the Children’s Lawyer (OCL) has brought a motion to vary the order of Campbell J. dated September 15, 2010 appointing a lawyer for the child MDB, pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA) s. 38, and removing the OCL as the legal representative of MDB.

BACKGROUND

[2] The Children’s Aid Society of London and Middlesex brought an application on September 10, 2010, pursuant to s. 37 of the CFSA, for a finding that the three children of C.D.B. and L.D.B were in need of protection. At the time, the children were the following ages: MDB, born […], 1994, was 15 years old (one day before his 16th birthday); RB, born […], 1997, was 12 years old; and MXB, born […], 2005, was 5 years of age.

[3] On September 15, 2010, Campbell J. issued the above mentioned order “for the separate legal representation of all three children”. That represented the standard order that is usually issued in such cases. The OCL is not appointed pursuant to that order. A customary procedure has developed, in this and most jurisdictions, that such orders are forwarded to the OCL and the OCL then assigns lawyers on their roster to represent the children. The lawyers are then supervised and paid by the OCL.

[4] The OCL assigned Mr. Kilpatrick to act as the legal representative of the child MDB, Mr. Khot to be the legal representative of the child RB, and Ms. Hoover to be the legal representative of the child MXB. These lawyers have represented these children in a process lasting over two years, including for the 105 days this trial has taken thus far.

[5] The complexities and issues in this trial are at the far end of anyone’s definition of extreme. Since this trial is not completed – counsel estimate approximately another 30 or so days – I will not comment on any of the causes of this extraordinarily lengthy trial. I also assure all of the participants in this case that swirling comments outside of this courtroom by individuals who are not fully informed of what is transpiring in this courtroom cannot and will not affect the duty of the court to complete this trial in a fair and just manner based only on the issues, the evidence and the law in this case.

[6] For the purposes of this ruling, it is helpful to detail at least some of the complex issues this trial has dealt with in order to understand the true depth of counsels’ involvement and importance of the role that the legal representatives of the children must play, and have played thus far, in this process.

COMPLEXITIES AND SERIOUSNESS OF THE ISSUES

The Pre Trial Process

[7] The father and mother physically separated at or about the end of May 2010. From that point until August 30, 2010, the children, MDB, RB and MXB resided with the father in the matrimonial home in Strathroy, Ontario. They had some access to their mother. This access was resisted by the two older children.

[8] At the time of the Application, MDB was criminally charged with, among other things, assault causing bodily harm to his mother and assault with a weapon. He was placed on strict conditions of bail that prohibited him from having any contact with his mother and restricted his ability to see his siblings unless certain conditions were met. After the criminal charges were brought against the child MDB, he was required to live with a surety outside of the father’s home where his brothers continued to reside.

[9] On October 29, 2010, Vogelsang J. issued an order granting the temporary custody of the child MXB to the mother. The mother represented that she was residing with her parents in Chatham at the time. Temporary custody of the child RB was to be with the father and access between MXB and his father and siblings was also detailed, but continued to be difficult to arrange. MDB could no longer communicate with the mother and RB became increasingly resistant to seeing his mother.

[10] The child MXB was moved to Chatham to live with his mother, however this arrangement did not last long. The father appealed the order of October 29th and Hockin J. granted a stay pending the appeal to the Divisional Court. The child MXB was returned to live with the father pursuant to this order of Hockin J. dated November 19, 2010. From November 19, 2010 until April 1, 2011, MXB and RB continued to reside with the father and see their brother MDB within the complicated weave of the bail conditions and access orders of the Family Court. MXB continued to see his mother pursuant to the Family Court order and RB did not see his mother.

[11] In the first part of February 2011, the criminal charges against MDB were upgraded to include attempted murder of his mother. He was re-arrested and went through a bail hearing that spanned 18 days in the month of September. He was incarcerated throughout that period and eventually released on stricter bail conditions.

[12] On April 1, 2011, Bryant J. granted the Children’s Aid Society’s motion dismissing the father’s appeal of Vogelsang J.’s order of October 29, 2010. He also removed the stay and the child MXB was moved, yet again, to reside with his mother in Chatham, Ontario. The access between the children has continued to be a struggle. RB has rarely seen his mother and MDB continues to be unable to communicate with his mother due to the bail conditions.

[13] At the time this trial started on October 13, 2011, the child MDB was still living with a surety. That changed in January of 2012 as a result of a consent order between Crown and criminal defence counsel that amended his bail conditions to allow him to reside with his father. Since then, the children MDB and RB have resided with their father. The child MXB has resided with his mother.

[14] An assessment pursuant to s. 54 of the CFSA was completed and filed shortly before the trial started.

Some of the Extreme Issues in This Trial

[15] I will only set out some of the issues that require findings of fact in order to emphasise the continued need for the child’s legal perspective:

a. Does the mother have a serious alcohol problem and other behaviours that have not only been significant contributors to the estrangement of the two older children but impair her ability to care for the youngest child?

b. Has the mother made serious false allegations against the father and the oldest child that would contribute to the emotional abuse of all of the children?

c. Is the father a controlling, abusive and coercive man who has severely alienated the two older children to the point that he should be considered the main catalyst in the allegations with respect to MDB that led to the criminal charges against that child?

d. If the father is such a person, is there a real likelihood that he will also alienate and emotionally abuse the youngest child?

e. Does the child MDB pose a threat to his younger brother of physical or emotional harm such that his contact with his siblings should be supervised?

f. Does MDB pose a threat to his mother?

g. What are the possible solutions left to the court to decide the future relationships between the children and their parents?

Complexity of the Rulings Thus Far

[16] During the course of this trial, there have been numerous unique, complex and, in some cases, unprecedented voir dires and other arguments that have resulted in rulings on evidence that are unique to the very nature of this extreme conflict. Some of the these motions, requiring the extensive input of counsel, were:

a. motion for release of investigation material from Crown and police relative to the Youth Criminal Justice Act, S.C. 2002, c. 1 charges;

b. motion related to the admission of text messages that were on the child MDB’s cell phone and were photographed by his mother without his knowledge or consent;

c. motion for the admission of evidence of multiple audio recordings that were made by the father without the knowledge or consent of the mother;

d. motion for the admission of evidence, including video recordings taken by private investigators retained by the father for surveillance of the mother;

e. motion by the father for the production and use of certain diaries of the mother, summaries of which were reviewed by the mother during the course of her examination in chief;

f. motion by the father for the production of the books and records of the mediator engaged by the mother and father from “closed mediation” and for the mediator to testify at trial;

g. rulings on the extent to which the Children’s Aid Society could cross-examine a child who was the subject of their own protection application; and

h. rulings relating to the extent to which the seven counsel in this case could cross-examine a witness when they were not adverse in interest.

[17] These rulings represent some but not all of the complex legal issues that required the input of the legal representatives of these children. They also contributed to the extraordinary length of this trial.

[18] The stakes cannot be any higher when a court has the power and the duty to shape the future relationships of children and their parents. The benefit of legal representation for children under these circumstances is invaluable and absolutely necessary when the court has made an order that the child’s interests need to be protected.

[19] Justice Campbell made such an order on September 15, 2010. It is my view that an order made under s. 38 of the CFSA has significant ramifications. A lawyer appointed to represent a child in order to protect that child’s interests is not someone who merely places wishes before the court or monitors a trial impassively. A legal representative of a child is a lawyer in all respects. They owe a duty to their client to “zealously” protect their interests and to give the court the child’s perspective on the evidence, to call evidence where it is appropriate to do so and to act as officers of the court once they are on the record as the lawyer for the child.

[20] I agree with the comments of Spence J. in Jewish Family and Child Services of Greater Toronto v. L.K., 2012 ONCJ 8, [2012] W.D.F.L. 1886 at para. 37:

It would be somewhat ironic if these parents, who are fighting tooth and nail with each other, who each blame the other for the sad state of affairs that has befallen their family, are afforded the legal right to take up dozens of hours of court time telling the judge what his and her respective positions are, but the very children who are affected most by what the judge ultimately decides, are afforded no such opportunity whatsoever.

[21] In the case of Children’s Aid Society of Durham v. A.S., 2011 ONSC 1001, 97 R.F.L. (6th) 377, Scott J. made the following comment at para. 93:

There is an essential need for further testing of each party’s allegations and positions before the court. Counsel for the child would have a considerable role in assessing all the evidence from the children’s point of view.

[22] In my view, it is this type of participation that is uniquely allowed to a child through the legislative pathway of the CFSA and s. 38. MDB has had this type of representation to protect his interests since September 2010. The issue I must determine is that once a child has had this ability to participate and have legal representation for this extraordinary amount of time, can that be allowed to terminate when the trial is not complete due to the child’s biological age attaining 18 years. The interests of MDB still need to be protected.

[23] Regardless of whether I can make a finding of a child in need of protection or a disposition order pursuant to the CFSA s. 57, I must make findings of fact relative to all of the outstanding issues, some of which are detailed above. These findings may have a substantial impact on MDB and MDB’s future relationships with his siblings and his parents. This case is far more complex than the one issue of who is responsible for the events of August 30, 2010 that led to criminal charges. The need to protect MDB’s life relationship interests continues.

THE LAW AND ANALYSIS

[24] The CFSA s. 3 defines “child” as “a person under the age of 18 years”. However, that definition of child is legislatively altered for the purposes of Part III of the legislation dealing with applications, hearings and orders that can be made relative to a child who may be in need of protection.

[25] Section 37(1) of the Act states: “in this Part, ‘Child’ does not include a child as defined in s. 3(1) who is actually or apparently sixteen years of age or older, unless the child is the subject of an order under this part”. That section takes out of the earlier definition of “child” one who has reached 16 years of age unless an order is already made under Part III.

[26] When this Application was started, MDB was a child under 16. Pursuant to s. 47, once that application was started, the court must determine if that child is in need of protection pursuant to s. 37 and make a disposition order under s. 57 of the CFSA.

[27] There is yet a further alteration in the Act’s treatment of age in s. 47(3). That section reads:

Where sixteenth birthday intervenes

(3) Despite anything else in this Part, where the child was under the age of sixteen years when the proceeding was commenced or when the child was apprehended, the court may hear and determine the matter and make an order under this Part as if the child were still under the age of sixteen years.

[28] Despite anything else in this Part, where a child was under the age of 16 when the proceeding was commenced or when the child was apprehended, the court may hear and determine the matter and make an order under this part “as if the child were still under the age of sixteen years”.

[29] That subsection seems to be completely inconsistent with s. 71, which is another section of the same Part III of the CFSA. Section 71(1) reads: “An order under this Part expires when the child who is the subject of the order, (a) attains the age of eighteen years …”

[30] MDB turned 18 on […], 2012. Ms. Hassan, on behalf of the father, urged me to interpret s. 47(1)(3) to mean that, since MDB was under 16 when the application started, the court “shall hold a hearing to determine the issue and make an order under s. 57”. Under Ms. Hassan’s submission, the court may deem MDB to be under 16 and make an order under s. 57 despite s. 71, which purports to terminate any order upon attaining 18, because s. 47(1)(3) states “despite anything in this part”. Section 71 termination is in Part III.

[31] If I were to interpret s. 47(3) to allow me to deem MDB to be under the age of 16 and make an order finding him in need of protection, and then a disposition order pursuant to s. 57, that order would not have any termination date. I find it impossible to think that the legislature would have intended such an exemption to the length of a s. 57 order. I also feel that I cannot interpret s. 47(1) to mean that, since MDB was under 16 when the application started, I must hold the hearing and make a determination that the child was in need of protection at the time the Application was brought and then make an order under s. 57 that would automatically expire.

[32] I am fully aware of cases that have ruled that the Children’s Aid Society is not able to withdraw a case once it is before the court for determination pursuant to s. 47. A hearing must be held: see Children and Family Services for York Region v. J.G.S. (2004), 2004 CanLII 39017 (ON SC), 246 D.L.R. (4th) 562, 10 R.F.L. (6th) 269. However, I cannot make a ruling that would lead to an order that I cannot make. We are in the hearing that could have resulted in a determination that MDB was in need of protection. In my view, the triggering event of his reaching 18 years takes him out of Part III of the CFSA.

[33] There is little judicial consideration on this issue. The courts have generally limited their comments on the impact of s. 47(3) or 71(1)(a) to brief statements that the child turned 18 years of age and the order of Crown wardship was terminated. The Ontario Court of Appeal in C.G. v. Catholic Children’s Aid Society of Hamilton Wentworth, 1998 CanLII 3391 (ON CA), [1998] 40 O.R. (3d) 334 dealt with an application for custody brought by the mother after the children had been Crown wards for almost ten years. In finding that the application only pertained to the two youngest children, the court held at p. 337:

The second oldest child turned 18 years of age after the disposition of the cross-motion and while this appeal was pending. The order of Crown wardship was therefore also terminated with respect to that child. Accordingly, this appeal now only concerns the two youngest children who are 16 and 13 years of age.

[34] Under the circumstances set out above, I find that I must dismiss the Children’s Aid Society’s Application with respect to MDB. However, that dismissal does not end his need to have his interests protected in this unfinished trial, as it relates to process and substance. Due process and fairness command that MDB continue to have his legal rights and interests protected until the completion of this trial.

[35] Under the strange and unique circumstances of this case, I must resort to the Superior Court’s inherent jurisdiction to control its own process and ensure that a fair and just hearing has taken place. The Child and Family Services Act simply does not deal with this type of situation.

[36] I am very mindful of the cases that consider the Superior Court’s exercise of its parens patriae and inherent jurisdiction. With respect to parens patriae, the Supreme Court of Canada described that jurisdiction in E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388 at p. 427:

Though the scope or sphere of operation of the parens patriae jurisdiction may be unlimited, it by no means follows that the discretion to exercise it is unlimited.

[37] The Ontario Court of Appeal considered the case law surrounding court appointments of counsel. The court noted that, while the traditional view had been that the parens patriae jurisdiction could only be exercised where there was a gap in the legislative scheme, some recent cases had declined to close the door to the possibility that there may be other exceptional circumstances which could justify the exercise of the court’s discretion. Justice Corbet made comments in two recent cases about the possibilities of exercising either parens patriae or inherent jurisdiction in order to order and fund legal representation: see Perino v. Perino (2009), 2009 CanLII 82009 (ON SC), 99 O.R. (3rd) 575, 76 R.F.L. (6th) 179; and Walton v. Sommerville, 2010 ONSC 2765, [2010] O.J. No. 2043.

[38] Since MDB can no longer access the CFSA Part III, the order for his legal representation pursuant to s. 38 also terminates. Fairness and justice demands that I order that Mr. Kilpatrick continue to represent MDB to the completion of this trial. The method of retainer of Mr. Kilpatrick still must be determined.

[39] The issue is whether or not I should continue the present regime whereby the OCL continues to fund the legal representation. The OCL undertook this process when served with Campbell J.’s order in September 2010. Like any other legal representative who is in the middle of a trial, they cannot simply withdraw under these circumstances.

[40] Given that it is my view that MDB can no longer access the legal representative path as set out in the CFSA, I considered whether or not MDB should be added as a party. In my view that would upset the balance of this trial in mid stream. Adding him as a party would expose him to costs and bestow other rights and responsibilities on him equal to all other parties. That would change the structure of this trial and cause unintended consequences.

[41] I order that Mr. Kilpatrick shall continue to represent MDB. MDB’s participation in the trial shall be exactly the same as it was prior to his 18th birthday. The OCL shall continue to fund Mr. Kilpatrick’s involvement until the completion of this trial. If Legal Aid accepts the funding of MDB’s legal representation by Mr. Kilpatrick to the completion of this trial, this matter may be brought back before me with respect to the issue of funding.

[42] The evidence in this trial shall recommence on October 9, 2012 at 10:00 a.m.

”Justice R.J. Harper”

Justice R.J. Harper

Date: October 1, 2012