Children’s Aid Society of London and Middlesex v. S.A.R., 2015 ONSC 2534

COURT FILE NO.: C1539/12-02

DATE: April 23, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant

AND:

S.A.R. and S.S., respondents

BEFORE: MITROW J.

COUNSEL: Denise Marshall for the Society Sahra Panjwani for S.A.R. No one appearing for S.S.

HEARD: February 19, 2015, and written submissions filed March 12, 2015

ENDORSEMENT

INTRODUCTION

[1] The Society sought a termination of an existing supervision order. The present proceeding is a status review application commenced by the Children’s Aid Society of London and Middlesex (the “Society”).

[2] The child who is the subject of the status review application is S.S.S., age 14 (“S.”). Pursuant to a final supervision order dated January 23, 2014, the child S. was placed in the care of the respondent mother, S.A.R. (“Ms. R.”), for a period of six months subject to nine terms and conditions. The respondent father, S.S. (“Mr. S.”), was given reasonable access to S.

[3] It should be noted that this final supervision order also included the elder child, Sh., age 16; however, Sh. was placed in the temporary care and custody of the Society in December 2014 and a separate application was commenced for Sh.

[4] Accordingly, the status review application in the case at bar deals only with the child S.

[5] On February 19, 2015, this matter came before me for a consent order. The Society was seeking an order terminating the existing supervision order for S. and placing S. in the custody of Ms. R. pursuant to s. 57.1, and also granting reasonable access to Mr. S. in accordance with the child’s wishes. On February 19, 2015, the order sought by the Society was granted.

[6] However, an issue arose because there was also an existing final order as between Ms. R. as applicant and Mr. S. as respondent that provided for those parties to have shared custody of both children, S. and Sh. At the time of the hearing before me, it was not clear whether that final order dated February 5, 2009 made by Vogelsang J. was an order under the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 [as amended] or the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1].

[7] Accordingly, on February 19, 2015, I stayed the order that I had made and ordered that within seven days Ms. R. was to advise the Society as to whether there was any order made under the Divorce Act between the parties dealing with custody or access and also to file a copy of the divorce order (if there was one); and further, the Society and Ms. R. were to file written submissions as to the effect of an order made under s. 57.1 where there was an existing order under the Children’s Law Reform Act, and as to the procedure to be followed if there was order made under the Divorce Act.

[8] Written submissions, as requested, were received from the Society and Ms. R. on March 12, 2015.

SECTION 57.1 OF THE CHILD AND FAMILY SERVICES ACT

[9] The Society submits that an order cannot be made under s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C. 11 [as amended] (“the CFSA”) because there already exists an order made under the Children's Law Reform Act and, as a result, there will be two co-existing potentially conflicting orders.

[10] In making an order under the CFSA, the court, instead of making a supervision order, a temporary wardship order or a Crown wardship order, can instead make an order under s. 57.1 that includes custody in favour of one or more persons and also an order for access.

[11] Section 57.2 of the CFSA deals with provisions relating to a stay of proceedings under the Children's Law Reform Act when proceedings are commenced under the CFSA or an order is obtained under the CFSA. For convenience, sections 57.1 and 57.2 are set out below in their entirety:

Custody order

57.1(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

Deemed to be order under Children’s Law Reform Act

(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children’s Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

Restraining order

(3) When making an order under subsection (1), the court may, without a separate application, make a restraining order in accordance with section 35 of the Children’s Law Reform Act.

Same

(4) An order under subsection (3) is deemed to be a final order made under section 35 of the Children’s Law Reform Act, and shall be treated for all purposes as if it had been made under that section.

Appeal under s. 69

(5) Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 58 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the orders under section 69.

Conflict of laws

(6) No order shall be made under this section if,

(a) an order granting custody of the child has been made under the Divorce Act (Canada); or

(b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court.

Application of s. 57 (3)

(7) Subsection 57 (3) applies for the purposes of this section.

Effect of custody proceedings

57.2 If, under this Part, a proceeding is commenced or an order for the care, custody or supervision of a child is made, any proceeding respecting custody of or access to the same child under the Children’s Law Reform Act is stayed except by leave of the court in the proceeding under that Act.

DISCUSSION

[12] The submissions of the parties indicate that there is no order made under the Divorce Act for custody or access regarding the child, S. Mr. S., as applicant, did obtain a divorce order, with Ms. R. as respondent. The divorce order is dated July 9, 2010 and provides for a divorce only with no corollary relief. The divorce order indicates that the parties were married in June 2007.

[13] Accordingly, the final order of Vogelsang J. was made under the Children’s Law Reform Act.

THE POSITIONS OF THE SOCIETY AND MS. R.

[14] The Society refers to s. 57.1(2) of the Act. The Society submits that, if a custody order is made under s.57.1(1), and if an access order is made under the CFSA, then those orders shall be deemed to be made under s. 28 of the Children’s Law Reform Act.

[15] The Society points out that the variation of orders under the Children’s Law Reform Act is referred to in s. 29 of that Act.

[16] The Society submits that the CFSA, in s. 57.1, does not refer to making an order under the Children's Law Reform Act that varies an existing order under that Act.

[17] Accordingly, it is the position of the Society that, if a custody order already exists under the Children’s Law Reform Act, an order cannot be made under s. 57.1 of the CFSA as the result would be two co-existing and potentially conflicting orders, namely, the original order made under the Children’s Law Reform Act and a deemed s. 28 order made under s. 57.1 of the CFSA.

[18] The Society concludes by submitting that the proper procedure is that Ms. R. should commence a proceeding varying the existing order made under the Children’s Law Reform Act (being the aforesaid final order of Vogelsang J. dated February 5, 2009); she should seek an order under s. 57.2 lifting the stay of the proceeding under the Children's Law Reform Act; and then, assuming that Ms. R. is able to obtain a custody order in her favour, the Society would seek termination of the existing supervision order.

[19] It is the position of Ms. R. that the court should, and has the jurisdiction to, grant an order for custody in favour of Ms. R., pursuant to s. 57.1 of the CFSA that varies the final order made by Vogelsang J.

[20] Ms. R. submits that the primary objective of the Family Law Rules, O. Reg 114/99 is to enable the court to deal with cases justly (r. 2(2)); and that dealing with a case justly includes a procedure that is fair to all parties and that saves time and expense (r. 2(3)); and Ms. R. further relies on rules 2(5)(e) and (f) that require the court to promote the primary objective by active case management that includes considering whether the likely benefits of taking a step justify the cost and dealing with as many aspects of the case as possible on the same occasion.

[21] Ms. R. submits that it would be inefficient and an unnecessary expense to require a separate motion to change the order made under the Children's Law Reform Act, given that the respondent parents in the status review application would be the parties in a motion to change an order under the Children’s Law Reform Act; and according to Ms. R., this would not promote the primary objective of the Rules to deal with cases “justly”.

[22] Ms. R. has provided two cases that are relevant.

[23] Children’s Aid Society of Ottawa v. Y.(P.), [2007] O.J. No. 1639, 2007 CanLII 14325 (S.C.J.) is a protection case involving a situation where the two parents had an existing final joint custody order. Parfett J. concluded that it was in the child’s best interests for the mother to have sole custody and made an order to that effect in the protection proceeding pursuant to s. 57.1. That case did not contain any specific discussion or analysis about the issue that has been raised in the case at bar. However Parfett J., at para. 41, did conclude that there had been a material change in circumstances that would justify a change in the original joint custody order.

[24] In Children’s Aid Society of Niagara Region v. B.(A.), 2007 CarswellOnt 9128 (S.C.J.), J.W. Scott J. considered a situation where there was an existing custody order under the Children’s Law Reform Act, where custody of the child had been awarded to the maternal grandparents and where one of the parents had generous and liberal access to the child and the other parent had supervised access to the child.

[25] In that case, the Society was requesting the termination of an existing supervision order and was also seeking an order that had the effect of varying the existing provisions of the access order made under the Children’s Law Reform Act.

[26] The factual summary in that case indicates that none of the parties had filed any material in response to the Society’s application. However, it appears that the only other parties named in the CFSA application were the parents (given that they had access) and that the maternal grandparents were not shown as respondents in the status review application.

[27] J.W. Scott J. concluded that there was no authority to vary an order under the Children’s Law Reform Act in the context of a proceeding under the Child and Family Services Act. J.W. Scott J. did refer to the decision of Parfett J. and stated the following at para. 17:

So, the first conclusion that I would reach is that there is no authority to vary an order made under Children’s Law Reform Act in the context of the Child and Family Services Act proceeding. If Justice Parfett, at paragraph 41, is of a different mind, I still do not agree with the conclusion that it is a variation. I think the Child and Family Services Act is unique legislation and when it results in a custody order that replaces one under the Children’s Law Reform Act it takes priority over that order under the Children’s Law Reform Act. In fairness, in the Ottawa decision, what was being addressed is whether it should go from joint custody to sole custody and therefore whether there should be a variation, it may well have been appropriate to consider why there would be a change. But in the case at hand we are not asking for a change of the custody. [my emphasis]

[28] I find that the B.(A.) case is distinguishable from the case at bar; in B.(A.) there was no request being made for a custody order under s. 57.1, and there does not appear to be any authority under s. 57.1 to deal only with access. Section 57.1(2) appears to authorize an access order as being a deemed order under s. 28 of the Children's Law Reform Act only when made “… at the same time …” as an order for custody under s. 57.1(1). Accordingly, in B.(A.), the failure to include in the CFSA proceeding all parties named in the custody/access order, and the fact that no custody order was sought under s. 57.1, are important distinguishing factors.

DISCUSSION

[29] An important fact in the present case is that Ms. R. and Mr. S. have filed a signed consent dated October 29, 2014 (exhibit 3) consenting to settle the status review proceeding on the basis that Ms. R. shall have custody of both children, Sh. and S., and that Mr. S. shall have reasonable access to the children, Sh. and S., in accordance with the children’s wishes. As noted earlier, subsequent developments have resulted in Sh. being in the temporary care and custody of the Society and subject to a separate application; however, that consent is still valid as it relates to the child, S.

[30] I find in cases such as the case at bar, that where the parents to an existing final custody and access order made under the Children’s Law Reform Act have agreed to a variation of the order, within the context of a status review application, that it becomes an unnecessary expenditure of time, effort and resources to require the parents to commence a separate motion to change; there is no reason why the parents and the Society cannot consent to the terms of a custody and access order to be made under s. 57.1 where there is an existing final custody and access order made under the Children’s Law Reform Act.

[31] The Society argues that a custody order made under s. 57.1 is deemed by s. 57.1(2) to have been made under s. 28 of the Children’s Law Reform Act, and that because the CFSA makes no mention of varying an existing Children’s Law Reform Act order under s. 29 of that Act, that s. 57.1, therefore, does not authorize variations. I am unable to accept that submission.

[32] A reading of the Children’s Law Reform Act as a whole indicates that a parent or any other person may apply to the court “… for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child …”: s. 21(1). Section 21 then goes on to provide for the mandatory affidavit in support of a custody and access application: s. 21(2). It is salient to note that the reference to variation of a custody or access order is contained in s. 29 that states as follows:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[33] The powers of the court in making an order in respect of custody or access under s. 21 are set out in s. 28. For convenience, I reproduce below s. 28 in its entirety:

28(1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons;

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Exception

(2) If an application is made under section 21 with respect to a child who is the subject of an order made under section 57.1 of the Child and Family Services Act, the court shall treat the application as if it were an application to vary an order made under this section.

Same

(3) If an order for access to a child was made under Part III of the Child and Family Services Act at the same time as an order for custody of the child was made under section 57.1 of that Act, the court shall treat an application under section 21 relating to access to the child as if it were an application to vary an order made under this section.

[34] It is apparent that s. 29 of the Children’s Law Reform Act does not specifically refer to “an application” for variation being made under that section; nor does s. 29 provide for any powers of the court in a variation application. All that s. 29 does is to indicate that no order can be made that varies an existing order unless there has been a material change of circumstances that affects or is likely to affect the best interests of a child.

[35] Accordingly, all applications under the Children’s Law Reform Act are made under s. 21. This would by necessity have to include an application to vary an existing order for custody or access. There is only one section in the Children’s Law Reform Act that contains the powers of a court in respect of custody or access applications, and that is s. 28. There is no separate section in the Children’s Law Reform Act that describes the powers of the court where there is an “application to vary”. This stands in contrast, for example, to s. 17 of the Divorce Act that deals specifically with inter alia, variation of existing custody orders, and that creates a right to apply for variation and that includes various relevant factors for a court to consider.

[36] A reading of s. 21 in the context of the Children’s Law Reform Act as a whole, does not support a conclusion that that section is limited only to an originating application for custody or access. I find that s. 21 applies to both an originating application, or a variation application, with the proviso that the latter must also meet the test in s. 29. Therefore, the powers in s. 28 apply to both an originating and variation application.

[37] I conclude that a court can make an order under s. 57.1 that has the effect of varying an existing final order under the Children’s Law Reform Act. However, there would need to be three specific pre-conditions: first, all persons who are parties to the final order under the Children’s Law Reform Act must be parties in the CFSA proceeding; second, all parties in the CFSA proceeding must be served with the claim of any party who seeks an order under s. 57.1; third, a court must find that there has been a material change in circumstances: see Y.(P.), supra, at para. 41 regarding the latter condition.

[38] It is noted that Mr. S. did not file any pleadings; however, he did sign the consent. Ms. R. did file an answer in the status review proceeding and she claimed sole custody under s. 57.1.

[39] For the sake of completeness, the basis for the imposition of the stay that I made on February 19, 2015, although not expressly stated in the endorsement, was pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 [as am. by S.O. 1991, c. 46].

[40] In the case at bar, the factual summary clearly indicates that there was a material change in circumstances since the making of the final joint custody order under the Children's Law Reform Act.

[41] In Children’s Aid Society of London and Middlesex v. K.E., 2015 ONSC 744 (S.C.J.), I set out the procedure that should be followed where an order for custody is made under s. 57.1. That procedure dealt with the issuance of two separate orders and is reflected in the order below.

ORDER

[42] For reasons set out above, I make the following order:

1. The stay of my order dated February 19, 2015 is vacated;

2. The following direction is given regarding the preparation and issuance of the order I made on February 19, 2015:

a) An order dated February 19, 2015 shall be issued in the status review application stating that the order of Garson J. dated January 23, 2014, placing the child S. in the care of Ms. R. subject to supervision by the Society and subject to nine terms and conditions, is terminated and is replaced by a separately issued order pursuant to s. 57.1; and

b) A separate order dated February 19, 2015 shall be issued in file #F1164/06 showing the mother, S.A.R., as the applicant and the father, S.S., as the respondent and this order shall contain the following terms and provisions:

1. The mother, Ms. R., shall have custody of the child, S.;

2. The father, Mr. S., shall have reasonable access to S. in accordance with his wishes;

3. Paragraphs 1 and 2 of the final order of Vogelsang J. dated February 5, 2009 are varied to delete from those paragraphs any reference to the child, S.;

4. This order is a final order made pursuant to the Children’s Law Reform Act.

5. That portion of my order dated February 19, 2015 that provides for a stay and that contains directions as to the filing of documents and the filing of written submissions shall be issued as a separate interim order.

6. If there are any issues regarding the preparation and signing of the orders, then I may be spoken to, or the orders may be prepared and forwarded to me for signature.

“Justice V. Mitrow”

Justice V. Mitrow

Date: April 23, 2015