CITATION: C.G. v. NEOFACS, 2013 ONSC 6035
COURT FILE NO.: 18152/12
DATE: 20130926
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
C.G.
Unrepresented
Appellant
- and -
NORTHEASTERN ONTARIO FAMILY AND CHILDREN’S SERVICES
Justin Ellery, for the Respondent
Respondent
HEARD: September 12, 2013
CORRECTED DECISION:
June 18, 2014: Initials substituted for identifying names in Citation, title of proceedings, and paragraphs 4, 5 and 6.
EDITORIAL NOTE:
The child was referred to as E.M.G. in the OCJ proceeding, but E.J. in the SCJ proceeding.
D E C I S I O N
WILCOX, J.
[1] INTRODUCTION
[2] This involves the appeal of a decision of Carr J. in a child protection case. The Appellant’s child had been living with her under the supervision of the North Eastern Ontario Family and Children’s Services, but was apprehended from her. At the first court appearance, Carr J. adjourned the case and made an interim interim order without prejudice placing the child with her father under supervision. He also ordered the involvement of the Office of the Children’s Lawyer (OCL). The appeal was heard on September 12, 2013. For the reasons that follow, it is dismissed.
[3] FACTS
[4] The child E.J., is the subject of child protection proceedings under the Child and Family Services Act (CFSA). As of Thursday, July 12, 2012, she was under a temporary order which placed her with her mother, the Appellant, under the supervision of the North Eastern Ontario Family and Children’s Services (the agency). Prior to that date, the agency had brought a motion seeking leave to withdraw from the case. That motion had not yet been heard, but had been adjourned from time to time. However, on that date, the agency received information acting on which it apprehended the child. The agency brought a notice of motion requesting, among other things, to amend its motion to withdraw to seek instead an order placing the child in the care of her father, L.J., for a period of four months under the supervision of the agency, and the appointment of the OCL. It was supported by the affidavit of Lindsay St-Jacques, a child protection worker at the agency, sworn July 16, 2012.
[5] The motion was heard on July 16, 2012 by Carr J. of the Ontario Court of Justice (OCJ). A transcript of the court proceeding is in the Appellant’s appeal record. Counsel for the agency was present, as was the child’s father, L.J. Carr J. was aware that the Appellant mother was not present. In a brief exchange with agency counsel, it appears that Carr J. knew or at least surmised that the Appellant had not been served, although his question in that regard was not answered, at least orally and on the record. It is not clear from the record whether Carr J. read the motion materials. However, agency counsel gave a brief summary of the situation with reference to the St-Jacques affidavit and stated that, for the day’s purposes, it wanted a “temporary, without prejudice order”, placing the child in her father’s care with agency supervision and an order appointing the OCL for the child. L.J. agreed.
[6] Carr J.’s endorsement reads:
- interim-interim order without prejudice, child E.M.G. be placed in the care of L.J., subject to Society supervision of the placement pending further order. OCL to represent child – recommend Liisa Parise.
This matter is adjourned to July 30, 2012.
[7] It is clear that the Appellant was not served with the motion documents returnable July 16, 2012. The affidavit indicates that she had moved with the child from her known address in Kapuskasing and was living with her mother in Iroquois Falls, where the child was apprehended from her. However, she had attended the agency’s office on July 13, 2012 to meet with Ms. St-Jacques. Furthermore, it appears from the endorsement of Riopelle J. on file that the Appellant attempted to bring a notice of constitutional question dated July 13, 2012 in the Superior Court of Justice regarding the apprehension of the child. (It was heard August 9, 2012 and dismissed on procedural grounds).
[8] Obviously, she was aware of the apprehension. However, by her own admission in court, she went to the Toronto area on Sunday July 15, 2012 for an independent mental health assessment and stayed until July 19.
[9] The OCJ’s endorsement of July 30, 2012 shows that an order was made for substituted service on the Appellant by personal service on her mother and the matter was adjourned to August 20, 2012 to allow for that service and to set the next step in the proceedings. The existing temporary supervision order was continued. The endorsement of August 20, 2012 indicates only that the case was adjourned to October 1, 2012 to be spoken to.
[10] From the OCJ endorsement of August 13, 2012, it appears that the Appellant served on August 9, 2012 a notice of motion for various orders and that she wanted the evidence in support of this to be entirely oral, or by audio recording if needed. The court stated that the motion “will not be heard without an affidavit containing the facts upon which the (Appellant’s) claim rests”.
[11] Instead of engaging further in the child protection proceedings in OCJ, the Appellant commenced these appeal proceedings. The notice of appeal was dated August 15, 2012. Within the appeal file, the Appellant brought several motions. The endorsement of McMillan J. of November 29, 2012 indicates that they were “somewhat duplicitous”, and he organized them for a hearing. Gauthier J. heard them on January 3, 2013. She made orders for the production of some hospital records, that the Appellant have access to information regarding the health, education and welfare of the child, and regarding some procedural matters for the appeal. The balance of the Applicant’s motions were dismissed.
[12] To this day, the operative order in the child protection case remains that of Carr J. made on July 16, 2012. It is this order that the Appellant is appealing.
[13] STANDARD OF APPELLATE REVIEW
[14] The standard of appellate review of interim or temporary decisions made on the basis of affidavit evidence was discussed by the Ontario Court of Appeal in the case of Carter v. Brooks, 1990 2623 (ON CA), 2 O.R. (3d) 321 at paragraph 34 as follows:
... I should say something about the standard of appellate review. Since this is not a case where the judge of first instance heard oral evidence, with the advantage that this would have given him over this court in his assessment of the evidence and his findings of fact, the Appellant to succeed in the realm of fact does not have the burden of establishing palpable and overriding error. An appeal, however, is not a re-hearing which takes place as though there were not already a decision on the merits of the case. The judge’s decision is entitled to due respect and, I think, should not be set aside unless the Appellant can show the court that the judge erred in his appreciation of the evidence, in the inferences he drew from the evidence, or in his application of the relevant legal considerations.
[15] Subsequent case law confirms that the standard is one of correctness (The Children’s Aid Society of Waterloo Region v. Baby A. and Kamal A., 2004 12742 (ON SC), [2004] OJ No. 2647). That involves determining “whether the justice below applied the correct test, whether he/she disregarded or misapprehended or failed to appreciate the evidence before him and whether he/she made findings that cannot be reasonably supported by the evidence”. (Windsor-Essex Children’s Aid Society v. G.D. [2010] OJ No. 6147 paragraph 6).
[16] Beyond the applicable test on appeal, such matters have attracted further judicial comment. As G. D. Lane J. said in K.C. v. S.B. [2008] OJ No. 294 in paragraph 7:
Interim orders are not the ultimate solution, but are intended to “provide a reasonably acceptable solution to a difficult problem until trial”. Therefore, appellate courts should not interfere with an interim order unless it is demonstrated that the interim order is clearly wrong and exceeds the wide ambit of reasonable solutions that are available on a summary interim proceeding. (Sypher v. Sypher 1986 6337 (ON CA), [1986] OJ No. 536 (C.A.))
[17] Benotto J. in Davis v. Nusea 2003 2301 (ON SCDC), [2003] O.J. No. 3692 quoted with approval the following statement of Chapnik J. from Fine v. Fine [1998] OJ No. 2119:
An appellate court will not interfere with an interlocutory order unless it is clearly and demonstrably wrong. In family law matters, the remedy is ordinarily to bring the matter on for hearing rather than by way of appeal of an interlocutory order.
[18] Further, J.R.R. Jennings J. commented in Daniels v. Daniels [2006] OJ No. 2020 at paragraph 2:
As a general rule, appeals from interlocutory orders in family matters, particularly those subject to variation, are to be discouraged. They cause additional expense to the parties, and delay the ultimate resolution on trial.
[19] CHILD AND FAMILY SERVICES ACT
[20] This appeal takes place in the context of a child protection proceeding under Part III of the Child and Family Services Act (CFSA). The paramount purpose of the CFSA is to promote the best interests, protection and well-being of children (s. 1(1)). Additional purposes are recognized, but are subordinate to the paramount one (s. 1(2)).
[21] In Part III, 14 circumstances are listed in which a child is in need of protection (s. 37(2)). A children’s aid society may apply to the court to determine in a child protection hearing whether a child is in need of protection (s. 40(1)). Where there are reasonable and probable grounds to believe that a child is in need of protection, the child may be apprehended with a warrant, or without one if a child protection worker believes on reasonable and probable grounds that there would be a substantial risk to the child’s health or safety during the time it would take to obtain a warrant or hold a child protection hearing (s. 40(2)(7)). In either case, the child shall be brought to court for a child protection hearing as soon as practicable, but within five days (s. 46(1)). Where a child protection hearing is held and the court finds that a child is in need of protection and that an order is needed to protect the child in the future, it shall make an order under s. 57(s. 47(1)).
[22] Child protection hearings are not to be adjourned for more than 30 days except in specified circumstances (s. 51(1)).
[23] Where a child protection hearing is adjourned, the court must make one of the specified temporary orders for the child’s care and custody (s. 51(2)). In doing so, it may admit and act on evidence that it considers credible and trustworthy in the circumstances (s. 51(7)).
[24] S. 38 of the CFSA allows for the court to direct that legal representation be provided for a child who is the subject of protection proceedings. Such representation is provided through the Office of the Children’s Lawyer.
[25] Proceedings under the CFSA are subject to the Family Law Rules. Rule 14 provides for motions for temporary orders. Affidavits for use on such motions shall, as much as possible, contain only information within the personal knowledge of the affiant (Rule 14(18)). However, an affidavit may also contain information that the affiant learned from someone else (i.e. hearsay), but only if the source of the information is identified by name and the affidavit states that the affiant believes it to be true (Rule 14(19)).
[26] POSITIONS OF THE PARTIES
[27] The Appellant’s notice of appeal seeks 17 items of relief, most of which are beyond the ambit of this court sitting as an appeal court. She alleged numerous grounds as to why Carr J.’s order was in error. Many of these would be appropriate to be dealt with within the child protection proceeding in the OCJ, but are not proper matters for this appeal. She filed copious amounts of material in support of her appeal and made lengthy submissions in the appeal hearing, invoking numerous legal concepts. At the hearing, she was directed to address the relevant questions of what error Carr J. made and what order he should have made, in her view. Ultimately, her position distills to Carr J. should not have made his order, but should have left the child with her.
[28] Counsel for the agency and for the OCL argued in favour of Carr J.’s order.
[29] ANALYSIS AND DECISION
[30] Rather than address each of the Appellant’s contentions directly, I will look at what Carr J. did and the factual and legal situation that he was in, and apply the standard of correctness to decide the appeal. In so doing, I will be at least implicitly addressing the relevant parts of the Appellant’s argument.
[31] It must be borne in mind that this is a child protection proceeding. The well-being of a child is at stake. A judge in such a case is unlikely to have a perfect knowledge of the situation that he or she has to make a decision in. I expect that many or even all will err on the side of caution to make sure that a child will not suffer harm, rather than err the other way and risk a child’s well-being.
[32] Secondly, it must be remembered that the order under appeal is not a final order, nor even a temporary one. It is an “interim interim order without prejudice”. I take it to be nothing more than an adjournment on terms. In the hierarchy of orders, it is about the lowest and the most preliminary.
[33] The agency was obviously concerned enough about the situation to initiate the motion that it did. The information that it had is set out in the St-Jacques affidavit. It came from both a medical doctor’s observations and the agency’s own observations, which are consistent with one another in the concerns that they raise for the child. The agency had reasonable and probable grounds to believe that the child was in need of protection and to apprehend her from the Appellant. That the agency did not take the time to obtain a warrant to do so was not central to the appeal.
[34] Having apprehended the child, the agency brought the matter to court within the five days required. In fact, taking into account the intervening weekend, the matter was brought to court in two days.
[35] The procedure by which the agency did so, a notice of motion, has been noted above. Even if, as the Appellant contended, but with which I disagree, the existing order had expired or the matter had been withdrawn, leaving no ongoing case, there are other procedures such as a status review application or a new child protection application which the agency could have used to return the matter to court to be dealt with without practical consequences to the appeal proceeding.
[36] It would have been preferable if the Appellant had been served with the motion materials. However, this was not possible in the circumstances, which were of the Appellant’s making. By the date of the documents, July 16, 2012, the Appellant was absent from the area, having gone to the Toronto area, and not available for service.
[37] In court, Carr J. had only the agency’s notice of motion and the St-Jacques affidavit in support. Even if the affidavit could be criticized for not clearly identifying the source of some hearsay and stating that the affiant believed it to be true, there is also information in it that was within the personal knowledge of the affiant. More importantly, the CFSA allows the court to admit and act on evidence that it considers credible and trustworthy in the circumstances. There is no apparent reason that the court would consider the evidence in this affidavit to be otherwise, especially in view of the sources of the information.
[38] Faced with this situation in court, Carr J. adjourned the matter. He could have adjourned it for up to 30 days, but adjourned for only 14 days. The reasons for the adjournment were not spelled out but, clearly, one would be for the OCL, whose representation of the child he also ordered, to engage with the file. It would also provide the agency an opportunity to serve the Appellant, and for the Appellant to involve herself in the court proceedings. Indeed, as previously noted, she began to do so, but then diverted her efforts into the appeal process.
[39] Having decided to adjourn the matter, Carr J. was required to make a temporary order for the child’s care and custody, which he did. The order placing the child in the care of her father was within the authority of Carr J. to make and appears to have been the least intrusive and least disruptive order that was appropriate in the situation as it was known to him at the time, in keeping with the purposes of the CFSA.
[40] The order for the OCL was also one which Carr J. had the authority to make.
[41] In the result, I see no appealable error in the way Carr J. handled this matter. Therefore, the appeal is dismissed.
[42] I note that, in making the order that he did, Carr J., while protecting the child, gave the Appellant every opportunity to engage in the child protection process and have her side of the story heard. She attempted to do so briefly, but appears to have diverted her considerable efforts and energy into the appeal process when the OCJ would not allow her to dictate procedure in the child protection proceedings. The unfortunate result is that those proceedings have been put on hold pending the resolution of the appeal process. Also, it is not clear what, if any, access the Appellant has had to the child in the over 14 months since the apprehension. By taking the approach she has, not only has the Appellant not advanced her own interests, she has delayed the consideration of the child’s interests. The court file shows that at least two Superior Court justices that have dealt with motions within this matter, Riopelle and McMillan JJ., have recommended that the Appellant seek legal advice regarding it. I, too, strongly urge her to do so.
[43] COSTS
[44] The agency and the OCL shall have 20 days to serve on the Appellant and file with the court their submissions as to costs of the appeal. The Appellant shall serve on them and file with the court her submissions as to costs within ten days after receiving theirs.
Justice James A. S. Wilcox
Released: September 26, 2013