SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F1740/11

DATE: February 28, 2013

RE: K.R.G., applicant

AND:

R.K.D., respondent

BEFORE: MITROW J.

COUNSEL:
Lawrence Blokker for the applicant

Michael R. Nyhof for the respondent

HEARD: chambers motion

ENDORSEMENT

[1] The applicant has submitted, via “basket motion,” a request for a consent order dealing with custody and access pursuant to minutes of settlement dated December 20, 2012 signed at the conclusion of a settlement meeting that day.

[2] Parties and counsel are always to be commended where an agreement is reached. Consistent with the practice in this jurisdiction (and likely in many others), requests for consent orders are filed, to be signed by a judge in chambers without appearance by counsel or the parties. The usual material filed, as in the present case, consists of the form 14B motion, the minutes of settlement and an approved draft order. Therefore the information provided to the court is limited.

[3] This standard practice of filing limited information, especially where the request is for a final custody and/or access order, may result in the court refusing to make the order sought – which is the situation in the present case for reasons set out below.

[4] The applicant, K.R.G. (“Ms. K.R.G.”), is the mother of the child, S.M.G., born […]. Ms. K.R.G. commenced an application pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the “Act”), seeking custody of S.M.G. and a “declaration of parentage.” The respondent, R.K.D. (“Mr. R.K.D.”), filed an answer seeking “joint and shared custody” together with an order for liberal and generous access as specifically detailed in his pleadings.

[5] Any request for custody triggers a requirement for police records checks and reports from Children’s Aid Societies where a person is not a “parent.” This is the result of ss. 21.1 and 21.2 of the Act that provide as follows:

Police records checks, non-parents

21.1 (1) Every person who applies under section 21 for custody of a child and who is not a parent of the child shall file with the court the results of a recent police records check respecting the person in accordance with the rules of court.

Admissibility

(2) The results obtained by the court under subsection (1) and any information, statement or document derived from the information contained in the results are admissible in evidence in the application, if the court considers it to be relevant.

Use of evidence

(3) Subject to subsection 24 (3), evidence that is determined by the court to be admissible under subsection (2) shall be considered in determining the best interests of the child under section 24.

Regulations

(4) The Lieutenant Governor in Council may make regulations defining “police records check” for the purposes of subsection (1).

CAS records search, non-parents

Definition

21.2 (1) In this section,

“society” means an approved agency designated as a children’s aid society under the Child and Family Services Act.

Request for report

(2) Every person who applies under section 21 for custody of a child and who is not a parent of the child shall submit a request, in the form provided by the Ministry of the Attorney General, to every society or other body or person prescribed by the regulations, for a report as to,

(a) whether a society has records relating to the person applying for custody; and

(b) if there are records and the records indicate that one or more files relating to the person have been opened, the date on which each file was opened and, if the file was closed, the date on which the file was closed.

Request to be filed

(3) A copy of each request made under subsection (2) shall be filed with the court.

Report required

(4) Within 30 days of receiving a request under subsection (2), a society or other body or person shall provide the court in which the application was filed with a report, in the form provided by the Ministry of the Attorney General, containing the information required under that subsection, and shall provide a copy of the report to the requesting party.

Duty of clerk

(5) Subject to subsection (6), if the report indicates that there are records relating to the requesting party, the clerk of the court shall, 20 days after all of the reports that were requested by the party have been received by the court,

(a) give a copy of the report to every other party and to counsel, if any, representing the child; and

(b) file the report in the court file.

Exception

(6) The court may, on motion by the requesting party, order,

(a) that the time period referred to in subsection (5) be lengthened; or

(b) that all or part of the report be sealed in the court file and not disclosed if,

(i) the court determines that some or all of the information contained in the report is not relevant to the application, or

(ii) the party withdraws the application.

Admissibility

(7) A report that is filed under subsection (5) and any information, statement or document derived from the information contained in the report is admissible in evidence in the application, if the court considers it to be relevant.

Use of evidence

(8) Subject to subsection 24 (3), evidence that is determined by the court to be admissible under subsection (7) shall be considered in determining the best interests of the child under section 24.

Interpretation

(9) Nothing done under this section constitutes publication of information or making information public for the purposes of subsection 45 (8) of the Child and Family Services Act or an order under clause 70 (1) (b).

Regulations

(10) The Lieutenant Governor in Council may make regulations for the purposes of subsection (2),

(a) specifying one or more societies or other bodies or persons to whom a request must be submitted;

(b) governing the manner and scope of the search required to be undertaken in response to a request;

(c) specifying classes of files that shall be excluded from the report.

[6] As a complement to the above sections, Rule 35.1 of the Family Law Rules, O. Reg. 114/99 was enacted. This rule provides as follows:

DEFINITION

35.1 (1) In this rule,

“parent” means,

(a) a biological parent of a child,

(b) an adoptive parent of a child,

(c) an individual declared under Part II of the Children’s Law Reform Act to be a parent of a child, and

(d) an individual presumed under section 8 of the Children’s Law Reform Act to be the father of a child.

AFFIDAVIT IN SUPPORT OF CUSTODY OR ACCESS CLAIM

(2) If an application, answer or motion to change a final order contains a claim for custody of or access to a child, the party making the claim shall serve and file an affidavit in support of claim for custody or access (Form 35.1), together with any other documents required by this rule, with the document that contains the claim.

POLICE RECORDS CHECK

(3) Every person who makes a claim for custody of a child and who is not a parent of the child shall attach to the affidavit in support of claim for custody or access,

(a) a police records check obtained not more than 60 days before the person starts the claim; or

(b) if the person requested the police records check for the purposes of the claim but has not received it by the time he or she starts the claim, proof of the request.

SAME

(4) If clause (3) (b) applies, the person shall serve and file the police records check no later than 10 days after receiving it.

REQUEST FOR REPORT FROM CHILDREN’S AID SOCIETY

(5) Every person required to submit a request under subsection 21.2 (2) of the Children’s Law Reform Act for a report from a children’s aid society shall provide to the court a copy of the request together with the affidavit in support of claim for custody or access.

DOCUMENTS SHALL BE REFUSED

(6) If these rules require a document to be accompanied by the applicable documents referred to in this rule, the clerk shall not accept the document for filing without,

(a) an affidavit in support of claim for custody or access; and

(b) the documents referred to in subrules (3) and (5), if applicable.

CORRECTIONS AND UPDATES

(7) As soon as a person discovers that information in his or her affidavit in support of claim for custody or access is incorrect or incomplete, or that there has been a change in the information provided in the affidavit, he or she shall immediately serve and file,

(a) a new affidavit in support of claim for custody or access (Form 35.1) containing the correct or updated information; or

(b) if the correction or change is minor, an affidavit in Form 14A describing the correction or change and indicating any effect it has on the person’s plan for the care and upbringing of the child.

ASSOCIATED CASES

(8) If the clerk provides to a person making a claim for custody of a child information in writing under subsection 21.3 (1) of the Children’s Law Reform Act respecting any current or previous family proceedings involving the child or any person who is a party to the claim and who is not a parent of the child, the person shall serve a copy of the written information on every other party.

SAME

(9) If the written information provided by the clerk contains information indicating that the person making the claim was or is involved in family proceedings in which he or she was or is not involved, the person making the claim may serve with the copy of the written information an affidavit identifying those proceedings.

[7] The police records check requirement is not simply information relating to a criminal record. The information required is more comprehensive. It includes information regarding outstanding probation orders, criminal charges that have been stayed, dismissed or withdrawn, outstanding restraining orders and contacts between the person and a police service, including contacts where actions were taken against the person under the Mental Health Act. Ontario Regulation 24/10 deals with police records checks, and also Children’s Aid Society reports and provides as follows:

Police records check

1.(1) A reference in this section to a criminal charge or criminal offence is a reference to a charge or offence under the Criminal Code (Canada), the Food and Drugs Act (Canada) or the Controlled Drugs and Substances Act (Canada).

(2) For the purposes of subsection 21.1 (1) of the Act, a police records check in respect of a person is defined as written information, prepared by a police force or service and based on information available to the police force or service at the time the police records check is prepared, respecting the particulars of,

(a) every criminal offence of which the person has been convicted, except an offence in respect of which a pardon has been issued or granted under the Criminal Records Act (Canada);

(b) every criminal offence of which the person has been found guilty and has been discharged, except an offence in respect of which the Criminal Records Act (Canada) requires that the record be purged;

(c) every offence of which the person has been found guilty and for which an adult sentence has been imposed under the Youth Criminal Justice Act (Canada), as described in section 117 of that Act, except an offence in respect of which a pardon has been issued or granted under the Criminal Records Act (Canada);

(d) every outstanding order of a judge or justice of the peace made against the person in respect of a criminal matter, including a probation order, prohibition order or warrant;

(e) every outstanding restraining order made against the person under section 35 of the Act, section 46 of the Family Law Act or section 80 of the Child and Family Services Act, or any predecessors of those sections;

(f) every outstanding criminal charge against the person;

(g) every criminal charge against the person that,

(i) resulted in a finding of not criminally responsible on account of mental disorder,

(ii) resulted in a stay of proceedings,

(iii) was dismissed by the court, or

(iv) was withdrawn by the Crown;

(h) subject to subsection (3), every contact between the person and a police force or service for which the police force or service has a written record; and

(i) every contact between the person and a police force or service in relation to actions taken against the person under the Mental Health Act because of a determination under that Act that the person was suffering or apparently suffering from a mental disorder of a nature or quality that would likely result in serious bodily harm to the person or to another person or in serious physical impairment of the person.

(3) Information respecting the particulars of a contact referred to in clause (2) (h) shall not be disclosed by a police force or service for the purposes of the police records check if,

(a) disclosing the information could reasonably be expected to interfere with a law enforcement matter;

(b) a police force or service has not made the person aware of the contact;

(c) the person was a minor at the time of the contact; or

(d) the information is not relevant to an application for custody of a child.

(4) Nothing in this section permits or requires the disclosure of information by a police force or service, if the disclosure is prohibited by any Act or regulation of Canada or any province or territory of Canada or otherwise by law.

Requests for CAS report

2. A person required to submit a request under subsection 21.2 (2) of the Act shall submit a request to each society that is or was designated for every territorial jurisdiction, within the meaning of subsection 15 (2) of the Child and Family Services Act, in which the person has resided since the earlier of,

(a) the day on which the person became a parent for the first time; and

(b) the day on which the person reached 18 years of age.

Scope of CAS report, excluded files

3.(1) A report prepared under subsection 21.2 (4) of the Act shall only refer to files respecting,

(a) the provision of a service under Part II of the Child and Family Services Act to the person requesting the report; or

(b) the provision of a service under Part III of the Child and Family Services Act where a child protection investigation was initiated and the person requesting the report is or was one of the subjects of the investigation, but not including a referral, report, or information that a child is or was in need of protection that did not require a child protection investigation.

(2) Despite subsection (1), a report shall not refer to a file included under clause (1) (a) or (b) if,

(a) the person requesting the report was the child receiving the service or the child who was the subject of the investigation, as the case may be; or

(b) in the case of a file respecting extended care and maintenance provided under section 71.1 of the Child and Family Services Act, the person requesting the report is or was the person receiving the extended care and maintenance.

(3) A report shall not refer to any record that contains only files which are excluded under this section.

[8] In any custody proceeding, the first question a court is faced with is whether either party is a “parent” as defined in r. 35.1. There was no information filed on the form 14B motion in the present case to assist the court on that point. However, in reviewing the continuing record, the following evidence is noted:

a) In her mandatory form 35.1 affidavit, Ms. K.R.G. describes herself as the “mother” on page 1 under the heading requiring the full legal names of the parents. Ms. K.R.G., however, does not name Mr. R.K.D. as the father;

b) In her application (which is not evidence), Ms. K.R.G. alleges that she met Mr. R.K.D. in 2008, they were never in a relationship and there is no conclusive proof he is the biological father of S.M.G.;

c) In his form 35.1 affidavit, Mr. R.K.D. (on page 1) deposes that he is S.M.G.’s father (and he agrees Ms. K.R.G. is the mother) but, in a separate affidavit sworn November 5, 2012, Mr. R.K.D. confirms that he met Ms. K.R.G. in 2008, they never cohabited and that they “had sex once.” It was his evidence that Ms. K.R.G. advised him she “believed” he was the father (the child being two months of age at the time) and that Mr. R.K.D. thereafter became a part of the child’s life. In his form 35.1 affidavit, Mr. R.K.D. further states that in 2002 he was found guilty of sexual assault and received probation and counselling. There is no explanation from Mr. R.K.D., filed with the current form 14B motion, about the circumstances of the sexual assault. Mr. R.K.D. did not complete Part B of his form 35.1 affidavit, and no police records check or Society reports were filed by Mr. R.K.D..

d) In her affidavit sworn November 15, 2012, at paragraph 13 Ms. K.R.G. deposes that Mr. R.K.D. failed to disclose that he was “on a sex offender’s registry.” In his reply affidavit sworn November 15, 2012, Mr. R.K.D. gives a paragraph by paragraph response to many of Ms. K.R.G.’s paragraphs, but he does not specifically respond to this allegation;

e) Mr. R.K.D. discloses also in his form 35.1 affidavit that he was involved with the Children’s Aid Society of London and Middlesex. His separate affidavit confirms that in December 2011 his son, A. (from another relationship), was apprehended while under his daily care and that he now sees A. each Sunday supervised by his paternal grandmother and her partner;

f) Further, in that same affidavit, Mr. R.K.D. deposes that in early January 2012 a Society worker advised both Mr. R.K.D. and Ms. K.R.G. that the Society would commence protection proceedings unless Mr. R.K.D.’s access to the child, S.M.G., was supervised. Mr. R.K.D. described the reason for Society involvement with his son, A. (born […], 2011), as relating to concerns about his lack of organization, time management and an incident when A. burnt the tip of his finger on some candle wax. It appears from the record that subsequent to January 2012 Mr. R.K.D.’s access to S.M.G. has been pursuant to supervised access orders.

[9] The proposed order sought by the parties provides that Mr. R.K.D. and Ms. K.R.G. have joint custody of S.M.G., with the primary residence of S.M.G. to be with Ms. K.R.G. and with Mr. R.K.D. to have reasonable and generous access including alternate weekends plus other access specifically detailed in the draft order. The proposed access is not supervised.

[10] There was no material filed on the form 14B motion (seeking approval of the minutes of settlement) as to whether Mr. R.K.D.’s access to A. was still supervised, nor was there any information as to whether the Society would still have protection concerns if Mr. R.K.D.’s access to S.M.G. was not supervised.

[11] It is unclear from the record that Mr. R.K.D. is the biological father of S.M.G., nor is it evident from the record that the parties have in fact agreed he is the biological father. “Parent” is defined in r. 35.1(1) to mean biological parent, adoptive parent, a person declared to be a parent under Part II of the Act, or a person found to be the father under section 8 of the Act. There is no information in the record that Mr. R.K.D. comes within the last three categories. The proposed draft order does not contain a declaration of parentage in relation to Mr. R.K.D..

[12] There is insufficient evidence to conclude that Mr. R.K.D. is a “parent” as defined in r. 35.1.

[13] Accordingly, Mr. R.K.D. needs to produce a police records check and Children’s Aid Society reports as required by ss. 21.1 and 21.2 of the Act, r. 35.1 and O. Reg. 24/10.

[14] More information needs to be provided by Mr. R.K.D. regarding his past Society involvement regarding A., including Society verification of what their concerns were and also whether the Society has any ongoing concerns regarding unsupervised access to S.M.G..

[15] I require an explanation from Mr. R.K.D. as to the circumstances of his sexual assault conviction, including a description of the age and gender of the victim.

[16] On the facts of this case, I would have requested a police records check and verification of Society involvement even if Mr. R.K.D. was the biological father.

[17] It is noted that the draft order shows Mr. R.K.D.’s address to be the Central North Correctional Center in Penetanguishene. If Mr. R.K.D. is indeed serving a sentence, it is noted that he has not filed an amended form 35.1 affidavit disclosing the relevant criminal record. Mr. R.K.D. needs to inform the court why his address is shown to be at the Correctional Centre and provide full details of the circumstances of his incarceration if he is incarcerated.

[18] Given the foregoing, I would suggest the following guidelines where parties are submitting requests for consent orders dealing with custody and/or access matters, to be dealt with by a judge in chambers, based only on written material:

1. Ensure that each party has properly completed and filed an up-to-date form 35.1 affidavit;

2. If a party is not a “parent,” or if there is any issue whether a party is a “parent” as defined in r. 35.1, then that party should also complete part B of the form 35.1 affidavit and should submit requests for a police records check and a report from all relevant Children’s Aid Societies and those documents should be filed prior to the request for a consent order;

3. Where there has been Society involvement with either parent, the nature of and reasons for the involvement should be explained by the parent in an affidavit accompanying the form 14B motion. Usually a brief explanation should suffice, but more detailed information should be considered if the Society intervention is recent or ongoing;

4. Where a party has a criminal record, there should be a brief affidavit from that party explaining the circumstances of the offence (except perhaps where a criminal record is dated and has no bearing on a person’s ability to parent), but the amount of detail should increase where the nature of the offence may have a bearing on an individual’s ability to parent or may pose a risk to a child;

5. Where the parties submit minutes of settlement for approval, there is a duty to disclose any facts, including disputed facts, that may affect the exercise of the court’s discretion as to whether to approve the order sought. It is not an option to be silent. Such facts should be disclosed in an affidavit from one or both of the parties. Once the disclosure is made, the court can decide whether to sign the order, whether further affidavit evidence is required, or whether a hearing should be held prior to approving the proposed order.

ORDER

[19] For reasons set out above, I order as follows:

1. Mr. R.K.D. shall serve and file an updated form 35.1 affidavit and shall also complete part B of the affidavit;

2. Mr. R.K.D. shall file the original police records check and all reports received for each Children’s Aid Society named in Part B of Mr. R.K.D.’s updated form 35.1 affidavit (to be filed);

3. The applicant’s counsel shall forward the endorsement and this order to the Children’s Aid Society of London and Middlesex;

4. The parties shall file a letter from the Children’s Aid Society of London and Middlesex advising as to whether it has any protection concerns relating to the proposed minutes of settlement;

5. Mr. R.K.D. shall file an affidavit:

a) explaining the facts and circumstances leading to his sexual assault conviction, including the age and gender of the victim, and the nature of the counselling that he received;

b) explaining in more detail the reasons for the Society involvement with his child, A., including verification from the Society as to its concerns;

c) providing a full explanation as to why his address is shown as the correction facility in Penetanguishene and, if he is incarcerated, providing a full explanation as to the circumstances of his incarceration.

6. The applicant’s form 14B motion for approval of the minutes of settlement is stayed until such time as the additional material required by this order has been filed and thereafter submitted to me;

7. If the parties have any submissions to make as a result of this order, then counsel may contact the trial coordinator to arrange to speak to this matter at 9:45 a.m. before me.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: February 28, 2013