SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-018222

DATE: 2013/04/03

RE: Catholic Children’s Aid Society of Toronto v. N. B.-R. and A.L.P.

BEFORE: Herman J.

COUNSEL:
A.L.P., in person

Robin Vogl, for the Catholic Children’s Aid Society of Toronto

Ian M. Ross, Office of the Children’s Lawyer, for the children

HEARD: March 25, 2013

ENDORSEMENT

[1] The father, A.L.P., appeals from the order of Murray J. of the Ontario Court of Justice, dated June 25, 2012. The father was required to remove information from the internet and not post any further information that would identify his three children as being connected to a child protection proceeding.

[2] The father has raised several grounds in his appeal. His primary argument is that the judge erred when she concluded that the postings in question identify the three children. His further arguments are that: there was a lack of procedural fairness; he is not able to remove the postings; he had no intent to identify the children; the judge made several factual errors; and the judge engaged in judicial stereotyping.

[3] The mother, N. B.-R., did not participate in this appeal.

[4] Both the Catholic Children’s Aid Society (the “Society”) and the Office of the Children’s Lawyer (“OCL”), representing the children, oppose the father’s appeal.

Background

[5] The father and mother are the parents of three children who are subject to child protection proceedings. The children are ages 14, 9 and 7.

[6] The family has been involved with the Society since 2008. Child protection proceedings were commenced in April 2009.

[7] The father is an avid user of social media. The Society and the OCL have raised concerns with the father about posting information on the internet about the children, the children’s mother and the child protection proceedings.

[8] By order dated June 4, 2012, the judge suspended the father’s access until he removed from the internet any information or images posted by him or at his direction or under his control that identify or have the effect of identifying the three children, directly or indirectly, as children in a child protection case. Upon the father complying with the order, his access with the children would resume on two conditions: he would not bring in any electronic or recording device into access visits; and he would not miss any visits, unless the Society agreed he was justified in doing so.

[9] In her order, the judge indicated that the court would issue a further order identifying the information and images, after receiving submissions from the Society, the OCL and the father.

[10] In response to the request for submissions, the OCL provided written submissions on June 8, 2012, with a corrected version on June 11, 2012. The father provided two written submissions, dated June 15, 2012 and June 20, 2012.

[11] After reviewing these submissions, the judge issued her decision, dated June 25, 2012. It is the order of June 25 that is the subject matter of this appeal. This order provides further specificity to the previous order of June 4, 2012. The judge ordered the following:

(i) the father was required to remove 19 specified videoblogs from the internet, posted from July 7, 2010 to November 12, 2011;

(ii) the father was also required to remove from the internet any posting of any type made by him that would result in a “hit” if any of the children’s names was entered in Google that would result in information of any type – including “tags” on the screen – that would identify the children, directly or indirectly, as being connected to a protection case. A link to a protection case would be established by any posting that discusses the father’s experiences or views with respect to the family court proceedings or that mentions a children’s aid society or worker;

(iii) when the father has complied with the ruling, he is required to advise the Society. If the Society agrees that there had been compliance, the father’s access may resume. If there is a disagreement, the issue may be spoken to before the judge; and

(iv) the father was ordered not to make any future posting on the internet that violates s. 45(8) of the Child and Family Services Act, R.S.O. 1990, c. C.11. Aside from prohibiting the publishing of information that has the effect of identifying the children as connected to a protection proceeding, it also prohibits the publication of the names of himself and the mother in that regard.

[12] On July 27, 2012, the parties were again before the judge. The father told the court he was unable to comply with the order because the postings were not within his control. The judge advised him that his post facto explanation was not of assistance and it was open to him to appeal the order.

[13] The father also asked the court for an order that access be terminated because it was pointless to continue to pursue access. The Society and the mother supported the termination of access. The OCL took no position. The judge ordered that access between the father and the children be terminated.

[14] On January 10, 2013, a motion for Summary Judgment was heard in the Ontario Court of Justice. On January 24, 2013, Paulseth J. found that the children were in need of protection, placed the children in the custody of the mother and ordered that there would be no access to the father.

General Principles

Standard of review on appeals

[15] The Supreme Court of Canada clarified the standard of review on appeals in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 25 and 36:

(i) on questions of pure law, the standard is correctness;

(ii) on findings of fact, including inferred facts, the standard is palpable and overriding error; and

(iii) on issues of mixed fact and law, the standard is palpable and overriding error if the issue is the interpretation of the evidence as a whole, and correctness if the issue is interpretation of a legal standard or its application.

[16] An “overriding” error means “an error that is sufficiently significant to vitiate the challenged finding of fact” (Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. NO. 1765 (C.A.) at para. 297).

The [Child and Family Services Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html)

[17] This appeal involves the application of s. 45(8) of the Child and Family Services Act. That subsection provides:

45(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.

Lack of procedural fairness

[18] The father submits that he was denied procedural fairness arising from the judge’s reliance on the affidavit of Ms. Emily Slinger.

[19] Ms. Slinger was a summer law student at the OCL. Her affidavit was included as part of the submissions of the OCL in response to the June 4, 2012 order.

[20] Ms. Slinger conducted an internet search related to the parties and the three children and viewed the father’s video blogs, which had been posted on YouTube. In her affidavit, she said she viewed 90 of the 102 episodes of the father’s videoblogs that were available. She provided a summary of 27 episodes in Appendix A to her affidavit.

[21] The father submits that there was procedural unfairness because Ms. Slinger’s summaries are inaccurate and he did not have an opportunity to cross-examine her.

[22] However, the father had an opportunity to respond to the OCL’s submissions, which included Ms. Slinger’s affidavit. His submissions include a lengthy critique of Ms. Slinger’s summaries. He did not request an opportunity to cross-examine Ms. Slinger.

[23] In her reasons, the judge indicated that she had reviewed one of the disputed videoblogs, the one dated November 12, 2011. Her viewing confirmed the accuracy of the information in Ms. Slinger’s affidavit. The judge therefore relied on the description of the videos in Ms. Slinger’s affidavit.

[24] The father had an opportunity to respond to the affidavit and took advantage of that opportunity. He did not ask for an opportunity to cross-examine. In the circumstances, I cannot conclude that there was any lack of procedural fairness or denial of natural justice.

Identification of the children

[25] The father’s primary argument is that there is no information in his videoblogs that has the effect of identifying the three children as subjects of a child protection proceeding.

[26] The father contends that Ms. Slinger was able to make the connection between the children and the child protection proceeding because she had his name, the name of the mother and the names of the children, and she knew the context. In his submission, the real question is whether someone who had no information about the parties or the proceeding could reach the same conclusions.

[27] The judge identified 19 videoblogs which, in her opinion, contained identifying information. While it is the case that the father does not identify the three children by name in his video-blogs, the videoblogs have the effect of doing so indirectly: there are tag lines visible under the blogs containing the words “court”, “family”, “Toronto”, the father’s last name and the children’s first names; the father refers to the Society, his caseworker, family court, the children’s lawyer and court proceedings; and some episodes are shot in front of family court or the Society’s offices. Furthermore, if any of the children’s names are typed into Google, the search connects the viewers with links to the father’s videoblogs.

[28] In my opinion, the judge had ample information to enable her to conclude that there was public information that had the effect of identifying the three children as subjects of a child protection proceeding, as well as identifying the children’s father, contrary to s. 45(8).

Inability to remove the information

[29] The father submits he is unable to remove the information from the internet because it is posted on sites over which he has no control.

[30] The father did not raise this issue before the judge – either in court or in his written submissions – until July 27, 2012, more than a month after the judge’s ruling. At that time, the father said that he did not post the videoblogs on YouTube. Rather, they were posted by his best friend, who had passed away in April.

[31] When the father raised the issue on July 27, 2012, the judge indicated that she was not satisfied that the father could not comply and his explanation was provided too late. His recourse was to appeal.

[32] When the judge made her rulings on June 4 and June 25, there was no evidence or submissions from the father indicating that he was unable to remove the information. The father`s friend, who had apparently posted the videoblogs, had passed away before the June 4 hearing and the June 25 ruling. The father, therefore, had ample opportunity to raise the issue.

[33] In these circumstances, I cannot conclude that the judge made any error.

[34] The father raised the issue in the hearing of the appeal. However, he did not move to introduce any new evidence on this point.

[35] In the absence of properly-introduced new evidence, I have no basis upon which to conclude that the father is unable to make arrangements for the removal of the information or that a court order could not be sought to enable the information to be removed. The father arranged to have the videoblogs made and posted on the internet. He should not be able to avoid complying with the law by having other people post the information.

Lack of intent

[36] The father submits that the order is in error because he had no intent to identify the children in his videoblogs. If the children are identified indirectly, it is accidental, not intentional.

[37] It may well be that the father had no intention of identifying the children when he made the videoblogs. However, the focus of the legal provision is on whether the information has the effect of identifying the children, not on whether the person who disseminated the information intended to identify them. The purpose of the Act is to “promote the best interests, protection and well being of children” (s. 1).

Factual errors

[38] The father submits the judge made three factual errors when she stated: (i) the child protection case was the only case in family court; (ii) the November 12, 2011 videoblog had more than 200 hits; and (iii) the father mentioned the “children’s aid society” on the November 12, 2011 videoblog.

The only case in family court

[39] In her June 25, 2012 reasons, the judge noted that the protection case was the only case in family court related to the children since 2008. On this basis, she concluded that any reference to family court proceedings would indicate a connection to the protection case.

[40] There was a family court proceeding initiated prior to the protection proceeding. However, that proceeding was stayed in April 2009 when the protection proceeding was initiated, pursuant to s. 57.2 of the Child and Family Services Act. The videoblogs identified by the judge began in July 2010. Therefore, as of that date, there was no other family court proceeding because the other one had been stayed. Furthermore, the videoblogs included direct and indirect references to the Society, which point to a child protection proceeding.

[41] While it may have been more accurate to state that the child protection case was the only proceeding in family court since April 2009, the error is immaterial to the finding that references to family court proceedings in videoblogs from July 2010 onwards refer to child protection proceedings.

The number of hits

[42] The judge said there were over 200 hits on the November 12, 2011 videoblog.

[43] The father says there were, in fact, only 130 hits from November 1, 2011 to July 1, 2012. When I had the opportunity to view the videoblog in court on March 25, 2013, there were less than 200 hits.

[44] The father submits this error is material, because the smaller number of hits shows that he did not intend the videoblog to be viewed by a large number of people. Rather, he intended the videoblog to be viewed by friends and family. It was not for mass publication.

[45] Whether there were 200 hits or 130 hits is immaterial to the judge’s finding that there was information posted that identified the children as subject to a child protection hearing. Information posted on YouTube is information available to the public, regardless of how many hits there are or who the intended audience is.

Reference to the Society

[46] The father submits that the judge erred when she stated that the father referred to the “children’s aid society” in the November 12, 2011 videoblog.

[47] The transcript of the videoblog provided by the father in his Appeal Book indicates that he referred to “the child aid society”. There is no material difference between “children’s aid society” and “child aid society”

Judicial stereotyping

[48] The father submits that the judge engaged in “judicial stereotyping”.

[49] It would appear from the father’s factum that what he means by “judicial stereotyping” is bias. He states that the judge was not objective and had a “stick it to him” attitude.

[50] The test for the reasonable apprehension of bias was articulated by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369 at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

[51] On reviewing the transcript of the proceeding of June 4, 2012 and the reasons of June 25, 2012, I can find no basis for concluding that there was a reasonable apprehension of bias. The father had every opportunity to present his case, both in court and in written submissions. It is apparent from the judge’s rulings on June 4 and June 25, that she had considered the father’s submissions. The judge’s findings and conclusions were based on the evidence before her, a proper application of the law and an overriding concern for the children’s best interests.

Conclusion

[52] I conclude that there are no reversible errors. Any factual errors are minor and are immaterial to the judge’s findings and conclusions. I find no basis for concluding that there was a denial of natural justice or procedural fairness or a reasonable apprehension of bias.

[53] The appeal is therefore dismissed.

[54] Neither the Society nor the OCL seeks costs. No costs are awarded.

Herman J.

Date: April 3, 2013