ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 18,152/12
DATE: 20130107
BETWEEN:
C.G.
Applicant
– and –
NORTH EASTERN ONTARIO FAMILY AND CHILDREN’S SERVICES
Respondent
Self-represented.
Justin Ellery, for the Respondent.
HEARD: January 3, 2013
gauthier, j.
[1] The Appellant seeks a number of orders as set out in the two Notices of Motion at Tabs 6 and 11 of the Continuing Record.
[2] I heard the motion on January 3, 2013, and I made an Order addressing certain of the claims for relief sought by the Appellant at that time.
[3] I also made an Order about the next steps to be taken in the Appeal.
[4] I reserved my ruling on the balance of the relief sought.
[5] The outstanding matters are as follows:
(a) The request for an Order of certiorari to return the child without further prejudice;
(b) The request that the Order of Justice Carr be quashed, overturned and actions by NEOFACS be ceased;
(c) The request for an Order striking out or sealing Exhibits “B”, “D”, and “E” to the Affidavit of Laura Yuskow as they are not part of the CFS continuing record;
(d) The request for a certificate of stay of the Order of July 16, 2012;
(e) The request for an Order permitting the Appellant to review, access and correct her and her children’s personal information in the NEOFACS retained files as of right;
(f) The request for an Order that NEOFACS disclose all correspondences sent to third parties such as the schools and any other person to which they named the Appellant or her child disclosing personal information without consent or knowledge;
(g) The request for liberal weekend access to the child without prejudice;
(h) The request for an Order striking out all claims by the Office of the Children’s Lawyer appointed after the Appeal was filed; and
(i) The request for costs.
[6] On July 16, 2012, Justice Carr made an interim-interim order without prejudice, that the child E.J. be placed in the care of her father L.J., subject to supervision by the Respondent. He made the Order for the involvement of the Office of the Children’s Lawyer, and he adjourned the matter to July 30, 2012.
[7] The matter had come before Justice Carr by way of a Notice of Motion which set out the following relief being sought by the Respondent:
North Eastern Ontario Family and Children’s Services is requesting to amend its motion to withdraw to an Order of Supervision placing the child E.J. in the care of her father, L.J. for a period of four (4) months.
North Eastern Ontario Family and Children’s Services is also requesting an Order that the child, E.J. be represented by the Office of the Children’s Lawyer, namely Liisa Parise as per Section 38(1) of the CFSA.
[8] Although the Motion Form indicated that notice of the Motion had been given to all persons affected, in fact, the Appellant had not been served.
[9] In the course of the hearing of the matter on July 16, 2012, counsel for NEOFACS advised Justice Carr that, based on a fax that he had received on July 13, 2012, the Appellant was aware of the proceeding.
[10] Also in the course of the July 16th hearing, Justice Carr was reminded that there was an existing supervision order in place at the time that E.J. was apprehended (July 12, 2012). The child had been in the care of the Appellant subject to supervision by the Respondent. There also was an outstanding motion for NEOFACS to withdraw its proceeding and it was that motion which was amended to seek an Order placing the child with her father subject to supervision by the Respondent.
[11] On July 30, 2012, an Order was made permitting substitutional service of the Appellant by service on her mother. The Order of Justice Carr was continued.
[12] In the interim, that is, on July 13, 2012, the Appellant had faxed to NEOFACS and apparently to the provincial and federal Attorneys General, a Notice of Constitutional Question, in which, among other things, she took issue with what she described as the unlawful apprehension of her child. On October 20, 2012, the matter of the Constitutional Question was dismissed in the Superior Court as it was improperly constituted.
[13] Also on July 13, 2012, the Appellant attended at the office of NEOFACS in Timmins. She left when police arrived; they had been called by a worker at the agency who was apparently concerned at the Appellant’s upset state and her apparent threats of legal action against NEOFACS.
[14] On August 16, 2012, the Notice of Appeal was filed in the Superior Court.
[15] The child E.J. continues to be in the care of L.J.. There has been some contact between the Appellant and the child, however, I cannot determine, from the material before me, the extent of that contact.
[16] The Appellant wishes her child returned to her immediately. The Respondent opposes that request. The Office of the Children’s Lawyer also opposes the Appellant’s request and advises that such position is in accord with E.J.’s wishes.
[17] I will address each of the Appellant’s requests in turn.
A - Certiorari
[18] A writ of certiorari will lie in the following instances:
(a) Where the inferior tribunal lacked jurisdiction;
(b) Where there has been a breach of the rules of natural justice by the inferior tribunal;
(c) Where there is an error on the face of the record;
(d) Where there has been fraud or collusion by the inferior court.
[19] As I understand the Appellant’s argument, Justice Carr had no jurisdiction to make the Order of July 16, 2012, because the Respondent had withdrawn its application against the Appellant.
[20] It appears that, although it was the intention of the Respondent to withdraw its proceedings against the Appellant before July 12, 2012, it had not formally done so. The court file was still open and the proceedings were still “alive”. Therefore, the Court did have jurisdiction to make the Order it did on July 16, 2012.
[21] The Appellant further argues that the supervision order that had been in place when the Respondent brought its Motion on July 16, 2012, had expired as it had been in place for more than the 12 months provided for in Section 57 of the Child and Family Services Act.
[22] While it may be that the supervision order was more than 12 months old, that does not mean that there was no jurisdiction to make the Order of July 16, 2012.
[23] The Appellant raises the fact that she was not served with the Motion materials for the July 16, 2012 proceeding. There is little dispute that she was not served. Although she was aware that there would be some proceedings in connection with the apprehension without warrant, there is no evidence to suggest that she was made aware of when those proceedings would be held.
[24] While the lack of notice of the proceeding might be characterized as a breach of the rules of natural justice, on the facts in this case, it is not sufficient for a writ of certiorari to lie. The presiding Judge was told that the Appellant was aware of the proceeding. As well, the merits of any of the claims for relief sought by the Appellant, must be considered in the context of the best interests of the child. I will have more to say about that later in these reasons.
[25] There is no evidence of any fraud or collusion which would entitle the Appellant to a writ of certiorari.
[26] Likewise, there is nothing to suggest an error on the record. The evidence before Justice Carr was that the Appellant took E.J. and left the Timmins and District Hospital before the child could be properly assessed, and that the doctor had concerns about the child’s medical needs not having been met. The doctor raised the issue of possible mental health issues. Those facts were before Justice Carr. The records of the Timmins and District Hospital confirm those concerns that NEOFACS put before the Judge.
[27] The claim for a writ of certiorari is dismissed.
B – Quashing of the July 16, 2012 Order and Dismissal of the NEOFACS Proceedings
[28] The Order of July 16, 2012 is under appeal. The appeal has yet to be scheduled and heard. Once that occurs, the matter of whether the Order should be overturned will be dealt with on the merits. It would not be appropriate to deal with what are essentially the merits of the appeal, on an interim basis.
[29] The Appellant asks that the “actions by NEOFACS be ceased”. There is no basis upon which such order could be made.
C – Striking out Exhibits to the Affidavit of Laura Yuskow
[30] There is nothing improper or inappropriate about the evidence which is tendered by way of the impugned exhibits. They are properly part of the Record in the Superior Court. Accordingly this request is denied.
D – Stay of the Order of July 16, 2012
[31] Subsection 69(4) of the Child and Family Services Act provides as follows:
The Superior Court of Justice may, in the child’s best interests, make a temporary order for the child’s care and custody pending final disposition of the appeal, …and the court may, on any party’s motion before the final disposition of the appeal, vary or terminate the order or make a further order.
[32] There are three components to the test to be applied on a motion to stay:
(1) An assessment of the merits of the case to ensure that there is a serious issue to be tried;
(2) An assessment of whether the moving party would suffer irreparable harm if the stay is not granted; and
(3) An assessment as to which of the parties would suffer greater harm from the granting or the refusal of the remedy pending a decision on the merits.
Sherman v. Drabinsky [1997] O.J. No. 2735.
[33] The test is to be applied within the context of the paramountcy of the best interests of the child. That is what Subsection 69(4) directs.
[34] The first part of the test involves an assessment of the merits of the appeal. The grounds of appeal, set out in the Notice of Appeal, focus primarily on allegations of misconduct by NEOFACS, by L.J., and by the Ontario Court of Justice Judges who dealt with the matter. As a further ground of appeal, the Appellant relies on alleged breaches of her rights under the Charter of Rights and Freedoms. She further relies on alleged procedural irregularities as a ground of appeal.
[35] The Appellant accuses the Emergency Room physician of having, among other things, refused to treat her daughter which justified the Appellant leaving the hospital with E.J. before a proper assessment of E.J.’s medical needs could be made.
[36] Those facts are not borne out by the Emergency Room records. I have already found that the records go some distance in corroborating the concerns for E.J.’s medical needs and the concerns about her best interests as those concerns were related to Justice Carr.
[37] For purposes of the motion to stay, the first part of the test has not been met by the Appellant.
[38] Turning to the second prong of the test, i.e. whether the Appellant would suffer irreparable harm if the stay is not granted, I find that, once again, the Appellant has not provided any evidence to establish irreparable harm.
[39] The third prong of the test involves an assessment of the irreparable harm that might be suffered by each of the parties from the granting or refusal of the remedy sought. This component relates to the level of harm to the child if a stay is granted, or if a stay is refused.
[40] This third component, along with the first two necessarily involves an assessment of the best interests of E.J..
[41] The Appellant has provided very little evidence that directly relates to the best interests of E.J.. The onus is on the Appellant to provide evidence to establish that E.J.’s best interests would be served by a stay of Justice Carr’s Order. Put another way, in the context of the third component, the onus is on the Appellant to establish that E.J. would suffer harm if the stay is not granted.
[42] The Appellant has provided very little evidence that directly relates to the best interests of E.J. or to how E.J.’s best interests would be served by returning her to the Appellant now.
[43] The request for a stay of the Order of July 16, 2012 is denied.
E – Appellant to Review and Correct Personal Information in the NEOFACS File
[44] The Appellant made no submissions relating to this claim for relief. It is unclear to me what exactly she is seeking. I will make no order with regard to this head of relief.
F – Disclosure of Correspondence
[45] Specifically, the Appellant wants to obtain a copy of a letter sent to E.J.’s school Principal, by the Respondent, allegedly advising that a “No Contact” Order is in place.
[46] Counsel for the Respondent advised that he is not aware of any such letter having been sent to the school.
[47] This request is denied.
G - Access
[48] On January 3, 2013, the Appellant advised the Court and the Respondent that she is residing in North Bay. Her mailing address however is in Iroquois Falls.
[49] The Appellant complains that she resides too far away to visit with the child in New Liskeard, and further that she is taking a paralegal course which prevents her from exercising access on a week day.
[50] The Respondent indicated that it would be prepared to consider the possibility of unsupervised access at the Appellant’s residence if the Nipissing branch of NEOFACS agreed to and the Appellant permitted an assessment of her residence.
[51] The Appellant has consistently refused to disclose where she is living. Even in the face of the prospect of increased and unsupervised access, she refused to disclose her residential address.
[52] The Appellant did not offer any proposal with regard to access.
[53] I am unable to make any order for access. I would however, encourage the Respondent to make reasonable attempts to facilitate contact between the Appellant and E.J.. I also caution the Appellant to cease questioning her daughter about the discussions between E.J. and her counsel, and further caution her to not discuss the court proceedings with E.J. in any manner. It is inappropriate and not in this young child’s best interests to discuss the litigation between her parent(s) and NEOFACS.
H – Terminating the Involvement of the Office of the Children’s Lawyer
[54] Justice Carr ordered the involvement of the Office of the Children’s Lawyer on July 16, 2012. The appointment of a lawyer for the child is made when it is determined that such representation is desirable to protect the child’s interests and it is done pursuant to Section 38 of the Child and Family Services Act.
[55] There was nothing inappropriate about that Order being made. And there is no basis to oust the Office of the Children’s Lawyer in this court.
[56] In addition, Justice McMillan ordered, on December 3, 2012, that the Office of the Children’s Lawyer be involved in this matter.
[57] The request for an Order “striking out all claims by the Office of the Children’s Lawyer” is denied.
I - Costs
[58] The Appellant seeks not only the costs of this motion, but costs for earlier court appearances, in both courts.
[59] Firstly, it cannot be said that the Appellant was successful on this motion. Other than the matters that I dealt with on January 3, 2012, which were on consent, she failed to secure any of the other relief she was seeking. Therefore, there is no presumptive entitlement to costs.
[60] Secondly, as the Ontario Court of Appeal made clear at paragraph 26 of Fong v. Chan (1999), 2000 29063 (ON SCDC), 49 O. R. (3d) 33, a self-represented litigant should only be awarded costs if she can demonstrate that she devoted time and effort to do the work ordinarily done by a lawyer, and, that, as a result she incurred an opportunity cost by foregoing remunerative activity. The Appellant did not indicate that she had to give up remunerative activity in order to prepare documents and otherwise be involved in this litigation.
[61] The claim for costs by the Appellant is denied.
Madam Justice L. L. Gauthier
Released: January 7, 2013
COURT FILE NO.: 18,152/12
DATE: 20130107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
C.G.Applicant
– and –
NORTH EASTERN ONTARIO FAMILY AND CHILDREN’S SERVICES
Respondent
Ruling on motions
GAUTHIER, J.
Released: January 7, 2013