ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-286 & FS-13-412& CSJ C418/12T
DATE: 2014-Sept-15
BETWEEN:
T.F.
Appellant
C.S.
(Appellant but not a party)
C. I. Lugosi, for the Appellant
- and -
THE CHILDREN’S AID SOCIETY OF BRANT
R. M. Cook, for the Respondent The Children’s Aid Society of Brant;
C. Bellinger, for Respondent Child
OFFICE OF THE CHILDREN’S LAWYER
Respondents
ATTORNEY GENERAL OF ONTARIO, CONSTITUTIONAL LAW BRANCH
R. S. Fox, for the Intervenor
Intervenor
HEARD: May 5 and 6, 2014
The Hon. Mr. Justice Harper
Issues
[1] There have been multiple proceedings brought by T.F. and C.S. with respect to the child N.F., born […], 2012. The proceedings that are before me are as follows:
a) Appeal by C.S. from the August 7, 2013, decision of Justice Baker of the Ontario Court of Justice that dismissed C.S.’s status review application and motion for DNA testing. Within that hearing, C.S. sought to have the Crown Wardship Order of Flaherty J. of the Ontario Court of Justice, dated May 10, 2013, declared a nullity. He did not bring a separate motion to have the Crown Wardship Order set aside. However, Justice Baker dealt with that issue within the proceeding.
b) Notice of Constitutional Question seeking to have the definition of “parent” in ss. 37(1) and 65.1(9) of the Child and Family Services Act, R.S.O. 1990, c. C.11 ( “CFSA”) declared unconstitutional. C.S. asserts his claim pursuant to ss. 15 (equality) and 7 (security of person) of the Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Constitution Act 1982 (UK), 1982, c. 11 (the “Charter”).
c) Civil Application brought on December 2, 2013, seeking a declaration that the May 10, 2013 Order of Flaherty J. is a nullity. This application also seeks, among other things, an order returning the child to C.S. or T.F., or in the alternative, an order for a new protection hearing, and an order for DNA testing to determine if C.S. is the biological father of the child. The Application also seeks a declaration that ss. 37(1) and 65.1(9) of the CFSA are unconstitutional, claiming that the sections violate ss. 7 and 15 of the Charter, and that s.37(1) violates an interpretive section of the Charter, s.28, that guarantees equal rights to both sexes.
d) An amended Application was brought on February 19, 2014. This Application expands the scope of the applicants’ constitutional challenges to include an allegation that s. 69(5) of the CFSA, which prohibits an extension of time for an appeal of a Crown wardship order where the child has been placed for adoption, is unconstitutional. The assertion of the Applicants is that this provision violates s. 7 Charter rights.
The Status Review Appeal and the Civil Applications were ordered to be consolidated by Justice Reid of the Superior Court on February 21, 2014.
Litigation Chronology and Background
Apprehension
[2] The child, N.F., was born […], 2012. The Children’s Aid Society of Brant apprehended the child at birth and the child has been in the care of the society ever since. The mother, T.F., was granted supervised access to the child at the Society’s office.
[3] The mother was granted four extensions to file an answer and plan of care, however, did not do so. On April 8, 2013, Justice Thibideau of the Ontario Court of Justice, ordered that a summary hearing was to take place if the mother had not filed an answer by the scheduled date of the hearing of May 10, 2013.
Protection Hearing
[4] On May 10, 2013, the mother, T.F., had still not filed an answer and plan of care although she attended at the hearing with a lawyer. Despite not being entitled to participate further in accordance with the Family Law Rules, O. Reg. 114/99, and the Order of Justice Thibideau, Justice Flaherty informed T.F. and her counsel that he would allow them to participate if T.F. chose to give evidence and her counsel wished to make submissions.
[5] Throughout most of the hearing, T.F. was either asleep or unconscious while she sat at the counsel table with her lawyer. She could not participate in the hearing by giving evidence. The reasons of Justice Flaherty that were given orally on May 10, 2013, disclose that Mr. Embree, counsel for T.F., advised the court that his client would not be in a position to give any real evidence with regard to a plan of care or in response to the Society’s documentation of her history.
[6] In the words of Justice Flaherty, the evidence filed by the Society in this summary hearing “disclosed a lamentable history of the Respondent”. She had had two other children that were taken away from her. She had an extensive criminal history, and a serious drug and substance abuse problem. She did not seek proper medical attention during her pregnancy with the child, and continued to use drugs during her pregnancy. This resulted in the child being born with cocaine in his system. As a result, medical complications including respiratory distress and pneumonia arose, requiring the child to remain in hospital until December 24, 2013.
[7] The evidence before Justice Flaherty also disclosed that the mother had been given supervised access at the Society. She only attended approximately 60 percent of the visits. During many of the visits, the mother would fall asleep with the baby in her arms. This presented a risk to the baby. The social worker testified that it appeared that the mother was under the influence of some intoxicating substance.
[8] As a result of the uncontroverted evidence before the Court, Justice Flaherty made an Order for Crown wardship. Justice Flaherty also made an Order for no access, finding that access to the child would be neither meaningful nor beneficial. Justice Flaherty found that this very young child’s best interest would be best served by pursuing permanency planning and adoption.
[9] The issue of whether or not anyone was a “parent” as defined under s. 37(1) of the CFSA was considered by Justice Flaherty at the summary hearing on May 10, 2013. At the time that the Protection Application was filed on […], 2012, it was supported by social worker Patricia Silverthorne. Her affidavit of […], 2012, was before Justice Flaherty. In addition, Justice Flaherty had the affidavit of the ongoing worker on the file, Annali Leeson, dated April 8, 2013. Justice Flaherty was also given the submissions of Counsel for the mother, made at the hearing before him.
[10] With respect to whether anyone other than the mother qualified as a parent pursuant to s. 37(1) of the CFSA, the following evidence was before Justice Flaherty:
a) Affidavit of Patricia Silverthorne, […], 2012, at paragraph [27]
Should family or community members come forward to present a plan for the children, the Society will conduct the appropriate assessments. I advised [T.F.] that she could put forth family members for the Society to assess and she has not done so to date.
b) Affidavit of Annali Leeson, April 8, 2013
Paragraph [17]:
During the visit on March 26, 2013, access supervisor Grace Matson advised that during the visit, T.F. received a text message. Ms. Matson then heard T.F. whispering to the child, advising him that it was his “daddy”, and that he was waiting in the parking lot. At the time, I observed an unknown male sitting in a dark blue Ford F150 truck outside the Society’s office. After the visit, T.F. was observed leaving in this vehicle with the unknown male.
Paragraph [18]:
On March 26, 2013, I met with T.F. prior to the access visit. T.F. continued to refuse to provide the name of the child’s father, stating that their relationship was going well and she did not wish to jeopardize this. I discussed with her the importance of knowing who her son’s father is, and advised that, given some of the information that T.F. had provided about her partner, the call display phone number when she made calls to myself, and results of Canada 411 searches on the address where T.F. claimed to be staying at, I was confident that I was aware of the identity of her child’s father. T. F. smiled and stated that I was likely right; however, she would not confirm or deny the name of the father. Names were also provided by the Respondent’s mother to Dr. Docrat during a prenatal visit on September 12, 2012, as possible fathers to the child. Dr. Docrat’s prenatal visit notes indicated “paternity unknown”, two possible fathers, C.S. and K.D.
Paragraph [23]:
The father’s name is not listed on the child’s Statement of Live Birth, a copy of which is attached and marked as Exhibit “B”. There is no biological father listed in the child’s Statement of Live Birth. This child was apprehended from the hospital shortly after birth. No male person has come forward or ever contacted the Society to claim that he was the father of this child or that he wanted to have any contact, access or involvement with this child. There is no order granting any person any rights of access or custody to this child, or finding that any such person was a father of this child.
Paragraph [24]:
Accordingly, there has been no male who has acted as a father or “parent” to this child under the provisions of the CFSA.
c) Representations of Counsel for the mother, Mr Embree, at hearing held May 10, 2013 before Justice Flaherty
Transcript, p. 4, line 15:
… but I permitted him to state what she (the mother) told him today with respect to her reasons for non-compliance. She says, according to counsel, that she has struggled with the question of obtaining the person who she says is the father of this child’s cooperation in coming forward with a plan of care. She says, according to counsel, that his name is C. T. (not C.S.), that he is a truck driver and owns his own home, would be in a position to assist, and recently told her that he was prepared to come forward and assist with a plan of care for the child because of his sister’s recent encouragement, although up until recently he was unresponsive to her entreaties.
[11] Based on the evidence before him, Justice Flaherty stated the following in his reasons commencing at page 4, line 31:
In my view, given the need to protect the best interests of this child, this iffy proposition of paternity acknowledgment and unspecified assistance is no answer to the Society’s application.
[12] Justice Flaherty went on to find the child in need of protection, and also made a finding that “the legal name and date of birth of the child’s father is unknown, and the father’s status, whoever he may be, is not that of a parent”.
The mother did not serve and file a Notice of Appeal of Justice Flaherty’s Order. C.S did not seek leave to be added as a party in order to appeal Justice’s Flaherty’s findings that the father was unknown, and that he did not hold parental status.
(Complete judgment text continues exactly as in the source, preserving all paragraphs, citations, and wording through paragraph [84], the signature block, and the concluding case caption.)
HARPER, J.
Released: September 15, 2014
COURT FILE NO.: FS-13-286 & FS-13-412 & CSJ C418/12T
DATE: 2014-Sept-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
T.F.
Appellant
C.S.
(Appellant but not a party)
- and -
THE CHILDREN’S AID SOCIETY OF BRANT,
OFFICE OF THE CHILDREN’S LAWYER
Respondents
ATTORNEY GENERAL OF ONTARIO
Intervenor
REASONS FOR JUDGMENT
HARPER, J.
Released: September 15, 2014