CITATION: CAS v. S.G. and B.R., 2015 ONSC 2361
COURT FILE NO.: 214/14
DATE: April 10, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
and in the matter of: R.T.N.G., born […], 2014 – Male
BETWEEN:
Family and Children’s Services of Frontenac, Lennox and Addington
Ayana Hutchinson, for the Applicant
Applicant
- and -
S.G. and B.R.
Stephen Zap, for the Respondent S.G. [mother]
Linda Christie, for the Respondent B.R. [father]
Respondents
HEARD: March 13, 3015
REASONS FOR JUDGMENT
Robertson, J.
LAW
[1] The authority to order the production of a prisoner to Family Court, Superior Court of Justice is found in Family Law Rule 23(10). Use Form 23B.[^1] The test is whether it is necessary for the prisoner to come to court. There is no entitlement for a prisoner to be delivered to SCJ Family Court for a routine, administrative appearance. The primary objective of the rules includes proportionality and active case management. Rule 2(5)(e) & (g) specifically requires the Court to consider whether the likely benefits of taking a step justifies the cost and where appropriate, allows the court to deal with matters without the parties and their lawyers coming to court.[^2] Family Court Rules 17(15 and 16)[^3] and 2(5)(g) specifically permit the court to order a party or lawyer attend conferences by telephone or videoconference. Court appearances should be meaningful.
[2] The Court’s administration in co-operation with the police strives to provide a safe environment for the litigants, the bar, and the public and also for the staff. Access to justice includes consideration for others, logistics and security concerns. Production of prisoners to court is not a family visiting program. Police are not taxis.
[3] The Criminal Code[^4] and applicable rules[^5] explain the application process to produce a prisoner in a criminal matter. The materials to be filed in a criminal proceeding include: the warrant under which the prisoner is held, a copy of the relevant indictment, and an affidavit.
[4] Criminal procedures do not apply to procure prisoners to family court in child protection cases. This incarcerated father in a child protection matter, by his experienced lawyer, obtained a production order on March 3, 2015 from Ontario Court of Justice (Criminal) at Napanee requiring his custodian to deliver him to Kingston Superior Court of Justice, Family Court on March 5, 2015. The order was made without any notice to the Superior Court of Justice Family Court and resulted in little time for police to arrange it.
[5] This decision is about process and not about the substantive merits of the matter. Sometimes, the court must initiate the appearance to control the process. A case conference may be conducted in a child protection case if the court considers it appropriate.[^6] By endorsement, I directed the trial co-ordinator to convene a conference on notice to the parties, the police and courts administration. The family court file did not contain a copy of the production order, endorsement or other paper trail to explain how this incarcerated father got to court for a consent adjournment before the court clerk. I presided over the CAS list that day and he did not appear before me.
[6] The March 5^th^ date was set on January 22 at the father’s request to extend the timelines so he could serve and file his answer and plan of care. He filed his documents. The next step was to set a settlement conference date. There was no reason for an urgent production order. His personal attendance was unnecessary and an improper use of public resources. I reject his lawyer’s submission that the court might infer paternal disinterest without his personal attendance. I also reject the lawyer’s submission that she believed the March 5^th^ date was a settlement conference. If she believed the appearance was a conference, she would have filed a brief and her confirmation would have reflected it. Neither she nor any other party filed a brief or confirmation a conference. I further reject her submission that the rules do not require notice to the court for a prisoner to be transported to court. The court has proper notice when the order is made in the right court in the correct county and the test is satisfied.
[7] This father is being held at Quinte Regional Detention Center at Napanee, located in the next county from this court. He is facing charges of assault on a roommate and his aunt. He admits prior convictions for arson, break and enter and possession of stolen property over $5,000. The Applicant Society seeks crown wardship of his son, apprehended at birth, […], 2014. The child remains in the care of the Society.
[8] The order on its face was substandard:
• it looked homemade and unofficial, without any court issued stamp, and definitely not on Form 23B;
• no court file number;
• obtained in the wrong county;
• signed by a Justice of the Ontario Court of Justice although the order was headed as Superior Court of Justice;
• wrong style of cause, missing most of the parties;
• it named Her Majesty the Queen as a party. This is a CAS matter;
• CAS was not named as a party;
• there was no supporting affidavit;
• order was public contrary to the CFSA s. 45(8);
• order was made without any notice to the family court as would have occurred if brought in the proper court.
[9] This last minute order caused unnecessary tension between two police departments. Kingston City Police and the Ontario Provincial Police debated the responsibility to execute the order. The clearly recognized signature of the local OCJ Justice commanded attention and respect. So, the OPP brought in two off-duty officers for an extra shift to facilitate the order at considerable public expense.
[10] The CAS and mother’s counsel were unaware of the production order. In this case, the mother was aligned with the father so there was no problem. His charges did not relate to the mother. In other circumstances, the surprise arrival of a former spouse from jail could be a frightening experience.
[11] The facilities of the Superior Court of Justice, Family Court in Kingston have logistical challenges. There is no cell. There are no prisoner washroom facilities. Should the need arise, the police drive the prisoner to the local police station to use their facilities. Parking is a challenge for the police van on a busy list day. If you don’t come early, you will not get a spot. The litigation counter is open concept without security glass. There is a small, open concept public waiting area where lawyers, litigants, along with their friends, families and sometimes even their children gather on a list day. There were 22 other families with matters on that list. Adding a shackled prisoner in the mix is unsafe. There are only a couple of interview rooms and there is no security in place for them. Lawyers clamour for the chance to use them for privacy with their clients. Prisoners cannot simply be parked in them. Anyone could have left contraband there.
[12] Kingston has plenty of prisons so arrangements are made to bring inmates to family court when required. Despite all of these problems, the court administration makes do in a variety of creative ways. Usually, special staggered off peak times are set for their court appearance so there are fewer members of the public on site and minimize wait time. The police then bring the inmate directly to the hearing and inmates wait outside in the police van until the hearing. March 5th was a bitterly cold day. Lack of notice meant everyone arrived at once. It was too cold to wait outside.
[13] For longer appearances, arrangements are made to use a courtroom at the historic Superior Court building across town at 5 Court Street, where there is a cell and proper security. This requires arrangements between the Local administrative justices of the Superior Court of Justice, Family Court and the Superior Court of Justice to ensure availability. The Judges and staff travel to that building.
[14] In addition, the Family Law Information Center and mediation services were operative. This means other members of the public were on site for general advice. Queen’s law students often attend for observation purposes in various programs. A surprise, drop-in inmate thrust into this mix caused problems.
[15] The father’s lawyer has agreed to apologize to both police departments and to the court Administration. The conference gave an opportunity to clarify the process. I am satisfied there was no misadventure or bad faith on the part of the lawyer. She was thoughtless and procedurally incorrect.
Robertson, J.
Released: April 10, 2015
CITATION: CAS v. S.G. and B.R., 2015 ONSC 2361
COURT FILE NO.: 214/14
DATE: 20150410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Family and Children’s Services of Frontenac, Lennox and Addington
Applicant
- and -
S.G. and B.R.
Respondents
REASONS FOR JUDGMENT
Robertson, J.
Released: April 10, 2015
[^1]: (10) If it is necessary to have a prisoner come to court or to be questioned, the court may order (Form 23B) the prisoner’s custodian to deliver the prisoner on payment of the fee set out in the regulations under the Administration of Justice Act. O. Reg. 114/99, r. 23 (10).
[^2]: Rule 2
PRIMARY OBJECTIVE
(2) The primary objective of these rules is to enable the court to deal with cases justly. [O. Reg. 114/99, r. 2 (2)](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html).
DEALING WITH CASES JUSTLY
(3) Dealing with a case justly includes,
(i) (a) ensuring that the procedure is fair to all parties;
(ii) (b) saving expense and time;
(iii) (c) dealing with the case in ways that are appropriate to its importance and complexity; and
(iv) (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. [O. Reg. 114/99, r. 2 (3)](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html).
DUTY TO PROMOTE PRIMARY OBJECTIVE
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. [O. Reg. 114/99, r. 2 (4)](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html).
DUTY TO MANAGE CASES
(5) The court shall promote the primary objective by active management of cases, which includes,
(v) (a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
(vi) (b) encouraging and facilitating use of alternatives to the court process;
(vii) (c) helping the parties to settle all or part of the case;
(viii) (d) setting timetables or otherwise controlling the progress of the case;
(ix) (e) considering whether the likely benefits of taking a step justify the cost;
(x) (f) dealing with as many aspects of the case as possible on the same occasion; and
(xi) (g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. [O. Reg. 114/99, r. 2 (5)](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html).
[^3]: FLR 17(15) The following shall come to each conference:
1. The parties, unless the court orders otherwise.
2. For each represented party, the lawyer with full knowledge of and authority in the case. [O. Reg. 114/99, r. 17 (15)](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html).
FLR 17(16) With permission obtained in advance from the judge who is to conduct a conference, a party or lawyer may participate in the conference by telephone or video conference. [O. Reg. 114/99, r. 17 (16)](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html).
[^4]: Section 527(1) of the Criminal Code and Criminal Rule 23empowers a judge of a Superior Court of criminal jurisdiction to order (in writing) that a person confined in a prison be brought before the court, judge, or a provincial court judge from day to day as may be necessary if:
(a) The applicant for the order sets out the facts of the case in an affidavit and procures the warrant, in any; and
(b) The judge is satisfied that the ends of justice require that an order be made.
[^5]: R. 23 of the Criminal Proceedings Rule for the Ontario Superior Court of Justice sets out the procedure for applications to procure the attendance of prisoners at preliminary hearing, the trial of his charge, or to give evidence in in a Code matter via s. 527 of the Code.
[^6]: 17 (1.1) In a child protection case, a case conference may be conducted if,
(a) a party requests it; or
(b) the court considers it appropriate. O. Reg. 91/03, s. 6 (1).