SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-15-15168
DATE: 20150724
RE: The Windsor-Essex Children’s Aid Society, Applicant
AND:
J.T., Respondent
BEFORE: Carey J.
COUNSEL:
Ronald E. Burnett, for the Applicant
J.J. Avery, for the Respondent
HEARD: July 24, 2015
ENDORSEMENT
[1] In this case, the circumstances of the removal from the record of the mother’s OCL appointed counsel resulted in an inability, despite her efforts, of the mother to retain new counsel who were available on short notice for the summary judgment hearing. The trial judge should have allowed further time to this young mother, in all of the circumstances, to find available counsel. I conclude that it was reversible error not to have done so.
[2] As well, the record is clear that this case was replete with issues that required a full hearing with witnesses subject to cross-examination. In my view, it would be a very rare case for Crown wardship without access that would be appropriately dealt with pursuant to Rule 16. This was not even close to being that case. There are very few cases that our courts deal with as serious as separating a mother from her child forever without contact, as was ordered here. The facts of this case cried out for the mother to have an opportunity to be heard and have her day in court. This was unfortunately denied her. In these circumstances I find that denial to constitute palpable and overriding error.
[3] The mother’s appeal is allowed.
[4] The order of Justice Ross dated February 2, 2015, is set aside.
[5] The case is remitted to the Ontario Court of Justice for assignment to a case management justice to schedule the next litigation steps.
[6] The interim order of the Ontario Court of Justice is hereby revived as it relates to interim placement and access.
[7] Fuller written reasons may be provided on request of counsel.
Original signed by Thomas J. Carey
Thomas J. Carey
Justice
Date: July 24, 2015