NAPANEE COURT FILE NO.: 50/15
DATE: August 7, 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: X.B. born […], 2004 – Male
BETWEEN:
Family and Children’s Services of Frontenac, Lennox and Addington
Ayana Hutchinson and Lindsay Edwards, for the Applicant Society
Applicant
- and -
K.B., C.H. and B.M.
Elizabeth French, for the Respondent mother, K.B.
Respondents
HEARD: April 13, 2015
REASONS FOR DECISION ON MOTION
Robertson, J.
[1] The mother asks for an order to dispense with service upon the father of the Society Wardship application and any further material. She consents to a 12 month Society Wardship Order with access as agreed upon by the parties. She requested the child’s apprehension citing mental health and behavior concerns for her ten year old troubled son.
[2] At the initial stages of a Society or Crown Wardship application, the legislation requires notice to anyone defined as a parent regardless of their parental worth. The Court’s authority to dispense with notice to a parent in a Society or Crown Wardship application is almost nil. The burden is on the mother, as the moving party, to satisfy the Court that a deviation from the statutory scheme for naming and serving necessary parties to an application is available and would be in the child’s best interest.”[^1] Dispensing with service on a parent in a wardship application essentially makes it an ex parte proceeding, potentially terminating a child/ parent relationship without notice.
[3] Ten years ago, the mother obtained an order dispensing with service upon the father in a custody application. She then obtained an order for sole custody with no access by default. That was a different legal process.
[4] The Child and Family Services Act (CFSA), Section 39(7), provides for the possibility of dispensing with service but only “where the court is satisfied that the time required for notice to a person might endanger the child’s health or safety”.
[5] Then, Section 39(7) must be read in the context of section 57(7) which reads:
When the court has dispensed with notice to a person under subsection 39(7), the court shall not make an order for Crown wardship under paragraph 3 of subsection (1), or an order for society wardship under paragraph 2 of subsection (1) for a period exceeding thirty days, until a further hearing under subsection 47 (1) has been held upon notice to that person.
[6] This section mandates that a person, whose service has been dispensed with, must be served if the court is to make an order for Society Wardship as in this case.
[7] Case law is of limited help. Windsor-Essex Children’s Aid Society v. R.L. 2012 ONCJ 325 reviewed current case law. [^2]
[8] The Society is aware of the obligation to search for kin and kith. Even bad parents might bring forward a good plan or offer appropriate extended family placements for a child. If service is dispensed with, it robs a child of a potential family relationship, even if that potential is small.
[9] The Society’s job is to investigate options and present them to the court. Then the court’s job is to determine best interests based on evidence.
[10] The mother’s legitimate concern is that service on the absentee father will result in her vulnerable child being introduced to a dangerous man with a history of sexually abusing children. She fears asking for much needed help for her son will only complicate and compound his problems if the father shows up. On the independent evidence, she has genuine concerns about inviting the father into the child’s life. He is a convicted pedophile. He has not seen the child in ten years, was violent to her, and never paid any support. He was deemed to be high risk in another province. The child has no idea this man is his father. The mother moved here from far away and changed the child’s name to hide him from this man.
[11] The Society correctly resists the motion. The Society is empathetic and prepared to redact the mother’s identifying information in documents before service on the father. This will offer a small layer of protection of her privacy.
[12] The CFSA is a complete code[^3]. Section 39(1) of the CFSA identifies the parties to a proceeding. Those parties necessarily include the child’s parent. This father meets the definition of a parent because he was married to the mother when the child was born.[^4]
[13] Family Law Rule 7 addresses the topic of parties to a case. That rule is relevant to the issues at hand. If a parent is deemed not to be a necessary party, then no service is required but in protection matters, the parties are defined. At this stage, I am not persuaded to delete him as a party. [^5]
[14] Section 1 of the CFSA states the paramount purpose of the Act is to promote the best interests, protection and well-being of children. I do not interpret this to authorize an order dispensing with service, even if it might be the preferable course.
[15] The parties are represented by good lawyers who appreciate the difference between substituted service and dispensing with service. I thank them for their creative and thorough submissions. I understand that difficulties may arise from service but unless counsel can direct me to some other authority, the father is entitled to have notice.
Result
[16] Service upon the father is dispensed with for thirty days pursuant to the CFSA s 39(7). Counsel for the child has recently been appointed. When the Office of the Children’s Lawyer has had an opportunity to review the matter, the issue of service may be revisited.
Robertson, J.
Released: August 7, 2015
NAPANEE COURT FILE NO.: 50/15
DATE: August 7, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Family and Children’s Services of Frontenac, Lennox and Addington
Applicant
- and -
K.B., C.H. and B.M.
Respondents
REASONS FOR DECISION ON MOTION
Robertson, J.
Released: August 7, 2015
[^1]: Children’s Aid Society of Toronto v. S.(S.), 2004 ONCJ 52 at paras. 16-19 and 22.
[^2]: Additionally, there is one case where a Court dispensed with notice to the father, when the mother gave evidence that the child was born as a result of a sexual assault, the father had never had contact with the child, paid support or acted in a caregiving role and the Society was only seeking a supervision order placing the child with the mother. The Court was particularly concerned about whether or not it had the legal authority via the Act to grant the order. The court considered section 39(7) CFSA and Rule 7(4) of the Family Law Rules.
See also Kenora-Patricia Child and Family Services v. J.S.M., 2001 24363 (ON CJ), [2001] O.J. No. 6080 at paras. 89-91.
[^3]: R.L. v. CAS of the Niagara Region, 2002 41858 (ON CA), [2002] O.J. 4793 (C.A.) at para. 46.
[^4]: Section 8(1)(1) of the Children’s Law Reform Act
(1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:
The person is married to the mother of the child at the time of the birth of the child.
Section 37(1) “parent” (b) of the Child and Family Services Act.
“parent”, when used in reference to a child, means each of,
(b) an individual described in one of paragraphs 1 to 6 of subsection 8 (1) of the Children’s Law Reform Act, unless it is proved on a balance of probabilities that he is not the child’s natural father.
[^5]: Children’s Aid Society of Toronto v. O.(L.), 2003 64402 (ON CJ) excluded a father as a parent to address the service problem.