ONTARIO

SUPERIOR COURT OF JUSTICE

at 393 UNIVERSITY AVENUE

COURT FILE NO.: FS-14-19755

DATE: 20151103

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

BETWEEN:

W.F.
Appellant

– and –

CHILDREN’S AID SOCIETY OF TORONTO
Respondent

Elie Ducharme, Counsel for the Appellant

Patrice Cote and Caroline Handelman, Counsel for the Respondent

Office of the Children’s Lawyer, Counsel for the Children Caterina Tempesta

HEARD: WEDNESDAY, OCTOBER 14, 2015

CORRECTED REASONS FOR JUDGMENT

Paisley J.:

[1] The Appellant appeals from the decision of Brownstone J. dated September 17, 2014 granting the Crown wardship of the Appellant’s children (S.F. and D.F.) on a summary judgment motion. The Appellant submits that,

Cet appel est à l’intersection de deux droits protégés par la Charte canadienne des droits et libertés. Le premier, le droit de tout citoyen d’entrer et de quitter le Canada à sa guise. Le second, le droit reconnus aux parents d’élever leurs enfants de participer à leur développement et de prendre les décisions fondamentales pour eux. Dans cette affaire, le Société d’aide à l’enfance de Toronto a violé les droits de W.F. de demeurer à l’extérieur du Canada reconnus par la Charte en la forçant à faire un choix impossible entre de demeurer à l’étranger et s’occuper, élever et prendre les décisions fondamentales pour ses enfants.

[2] The motion judge found that the children who were represented by counsel at the hearing wanted to be Crown wards, and that they:

Had the option of withdrawing from the Society’s control and going to live with their mother since they turned 16 on October 12, 2012, with the exception of four days in April 2014 when S.F. went to stay with his mother, these boys have consistently refused to reside with her. Although the mother insisted at the hearing that the children want to live with her, it is abundantly clear from their actions and from their lawyer’s submissions that they wanted to be Crown wards.

[3] The children were represented on this appeal. Counsel for the children sought to withdraw at the outset of the appeal, however the appeal proceeded on the basis that an adjournment would be considered in the event that the Appellant was able to effectively respond to the position advanced by the Children’s Aid Society that the appeal was moot.

[4] The Children’s Aid Society submits that the appeal should be dismissed as there were no genuine issues before the motion judge that required a trial, the orders of Crown Wardship expired on October 12, 2014 when the children obtained the age of 18 years, the children are no longer subject to parental authority, the court no longer has jurisdiction to hear or determine the issues at trial and that the court ought not to hear a moot appeal on the issues. If the orders of Crown Wardship were set aside, S.F. and D.F. would lose entitlement to a number of benefits available to them as former Crown wards.

[5] With respect to the alleged violation of rights, the motions judge ruled that:

Regarding any possible claims of Charter of Rights violations that might be asserted by the mother, it was incumbent on her at this stage to provide at the very least an air of reality to such claims, by specifying exactly: which section(s) of the Charter were engaged; In what specific way(s) those particular rights were violated and by whom; In what way(s) the mother’s Charter rights would supersede those of her children, given their ages at the relevant time. Further, she would have had to demonstrate that even if her Charter rights were violated, such a violation could conceivably lead to success at trial in terms of having the Society’s protection application dismissed. Neither the mother’s material nor her counsel’s submission provided even the slightest air of reality to her bald assertion that her Charter rights had been violated.

[6] The Appellant submits on this appeal that after she moved to Holland in 2010 with the children, the Children’s Aid Society disclosed confidential information without her permission that played a role in the decision of the authorities in the Netherlands to send the children back to Canada, which ultimately led to the children becoming Crown wards, and that the disclosure of that information violated her right to leave Canada, a right guaranteed by Article 6 of the Charter.

Cette requête de la Société est fondée directement dans la suite des évènements aux Pays Bas qui ont violé les droits de W.F. garantis par L’article 6 de la Charte de quitte le Canada. W.F. fait appel de cette décision et avance que la divulgation injustifiée et illégale de documents confidentiels par les autorités néerlandaises a brimé ses droits constitutionnels garantis par l’article 6 de la Charte de demeurer à l’étranger.

[7] The chain of events complained of as described by the Appellant in her factum commenced after the children moved to Holland in December 2010. On January 13, 2011 S.F., then age 14, contacted his aunt, who resides in Canada, and expressed the wish to return to Canada. The aunt contacted the local Children’s Aid Society and was advised to contact the authorities in the Netherlands.

[8] In March 2011, child protection authorities in the Netherlands placed S.F. in a foster home and ordered that S.F. be under the protection of Child Protection Services for one year.

[9] In February 2012, a court in the Netherlands terminated the Appellant’s custodial rights regarding the children and further found that the Appellant and the children were residing illegally in the Netherlands. The children were returned to Canada on July 2, 2012 and subsequently placed in foster care. The Appellant returned to Canada on August 15, 2012.

[10] The Appellant states that certain documents concerning the circumstances of the children while in the Netherlands were not translated.

Qui est plus, les allégations entourant les circonstances de vie de S.F. et D.F. reposaient sur des documents néerlandais, qui dans certains cas n’étaient pas traduits.

[11] In my view, the Appellant has failed to establish that the disclosure of information by the Children’s Aid Society to the authorities in the Netherlands was done for an improper purpose. It appears without question that the disclosure was provided to assist the authorities in the Netherlands to determine the best interests of the children, who are Canadian citizens, that the Children’s Aid Society exercised its discretion to protect the rights of the children, that in the circumstances the Children’s Aid Society was not obliged to obtain the consent of the Appellant to disclose that information, and that failure to do so did not breach any of the Appellant’s Charter rights.

[12] The Appellant further submits that the motion judge improperly relied on Hearsay evidence which denied her the right to cross-examine witnesses. An investigative summary purporting to bear the stamp of what appears to be of the Netherlands authorities was attached to the affidavit of family service worker Erin Gillas, dated June 27, 2012 as an exhibit.

[13] In paragraph 6 of that affidavit, Ms. Gillas states:

As W.F. is not presently residing in Canada and there is no immediate kith or kin plans for them, the Society has commenced a protection application to ensure that placement is available upon their repatriation in Canada.

On January 13, 2011, the local Children’s Aid Society received a telephone call from the maternal aunt of the boys, stating that she had been contacted by her nephew, (S.F.) and reported that he and his brother were not returning to Canada from Holland and that he did not want to stay in Holland. (The aunt) was advised to contact social services in Holland as well as Canada’s Foreign Affairs Department. Holland Child Protective Services became involved with the situation and were in contact with the local’s Children’s Aid Society several times. (paragraph 8)

I’ve also received information concerning the involvement of the Haaglanden Youth Care Agency, which began in January 2011. I received a report of that agency’s involvement and the child welfare investigation that was completed on November 28, 2011, which outlines the Haaglanden Youth Care Agency’s involvement with the family as well as their protection concerns regarding W.F. I am attaching a true copy of this report as Exhibit “A”. (paragraph 9)

In the summer of 2010, the mother and children were in the Netherlands where she met her current partner. In December 2010, the family again arrived in the Netherlands and they stayed at a hostel of her partner. The children thought they were in the Netherlands for a holiday but in January 2011 they were unexpectedly told by their mother that she planned to settle definitively in the Netherlands. (SF.) in particular, was very upset at having to stay in the Netherlands against his will. (D.F.) seemed more willing to go along with the plans of the mother. The mother gave a number people, and agencies, the impression she was unstable. The mother and the children are residing illegally in the Netherlands. The application for a residence permit March 2011 was refused. They boys say they are waiting to turn 15 so they can apply for a passport themselves and return to their grandparents in Canada. (paragraph 47)

[14] It was not necessary for the Children’s Aid Society to call witnesses to testify viva voce at the summary judgment hearing to prove the state of proceedings in the Netherlands. It is not necessary that viva voce evidence be called to prove every point at a summary judgment hearing. The state of the proceedings in the Netherlands in the circumstances of this case was merely background to the hearing that was held before the motion judge.

[15] I have heard the submissions of the Appellant in full. I agree with the submissions of the Children’s Aid Society that the court ought not to entertain a moot appeal in the circumstances. The disclosure by the local Children’s Aid Society to the equivalent Children’s Aid Society or authorities in the Netherlands of records concerning the Appellant relevant to the children involved in this matter was not done for an improper motive. The disclosure was provided in the interest of the children, was not inappropriate and did not breach any Charter right of the Appellant. The children’s rights appear to me to have been appropriately taken into account. The fact that some documents obtained from the Netherlands authorities and contained in the record before the motion judge were not fully translated was not complained of at the hearing before the motion judge and in any event they do not appear to have been relied upon by him.

[16] The Appellant further submits that the motion judge erred in questioning the Appellant’s right to a bilingual hearing. It is submitted:

Il convient ici d’adresser les remarques due juge Brownstone relativement au droit reconnu en vertu des articles 125 et 126 de la Loi sur les tribunaux judiciaires d’instruire un dossier en français. Le français est une langue officielle du système judiciaire en Ontario. Pour revendiquer le droit à une instance bilingue il faut parler français, c’est-à-dire qu’une partie doit prouver qu’elle maitrise suffisamment le français pour donner ses instructions à ses avocats. Les droits prévus aux articles 125 et 126 ne sont pas assujettis au pouvoir discrétionnaire des tribunaux et sont enclenchés dés que sont satisfaites les exigences procédurales.

L’idée qu’un juge, qui pourrait être unilingue, devrait tenir un voir-dire afin de faire passer un test linguistique à la partie requérante ne reflété ni l’état de la loi, ni l’état de la jurisprudence.

Par contre, la jurisprudence a établi clairement que des considérations d’efficacité relatives aux coûts ne peuvent server de prétexte pour supprimer ce droit.

W.F. communique avec ses représentants uniquement en français. Elle peut donc réclamer que l’instance soit instruite de manière bilingue sans subir les commentaires désobligeants d’un juge.

[17] The reasons of the motion judge with respect to the merits of the summary judgment motion conclude as follows:

Accordingly, the Society’s summary judgment motion is granted, both children shall be Crown wards. I wish to make the following further comments regarding the mother’s request for a bilingual hearing. After this case proceeded in English before an English-speaking judge for 18 months and on the eve of a summary judgment motion being brought, the mother requested a bilingual hearing. The mother and her children communicate with each other in English, all of the documents in this case are in English, none of the lawyers, including the mother’s lawyer, speak French. The mother’s request necessitated considerable inconvenience and delay as arrangements had to be made to schedule a hearing before a bilingual judge (myself) who presides at a different court location than the court as where this case had been proceeding.

When the parties appeared before me, all the lawyer’s submissions were in English as none of them speak French. The mother speaks and understands English fluently. When I attempted to engage her in French it became abundantly clear to me that her facility in the French language is, to put it diplomatically, questionable. It was obvious that she was far more comfortable speaking English than French. It was also painfully obvious that the mother’s request for a bilingual hearing was nothing more than an attempt to frustrate and stall the proceedings.

[18] The transcript of the hearing is contained in the appeal materials.

THE COURT: My role is to decide whether there’s anything here that would justify a trial or whether the decision should be made by way of this motion. But I think it’s wonderful that you came here all the way from Peterborough. As you can see the mother, it’s now ten after ten, she did not attend, she requested a French hearing but didn’t bother to come, and from what I can see she’s the only one in the room other than me, that and the interpreter, who speaks French. Am I right?

MR. HUNTER: That’s correct.

THE COURT: All right, she didn’t hire a lawyer to make submissions for her in French, none of her materials were produced in French, she didn’t attend or even if she had her submissions would've come through her lawyer, which would've been in English.

After discussions with counsel:

THE COURT: You are?

MS. W.F.: I’m W. F., the mother.

THE COURT: Ms. W.F., we’re concluding this hearing now. It was set for nine o’clock, it’s now ten after ten and you’ve just shown up now?

MS. W.F.: Excuse me, I was...

COURT REGISTRAR: Come forward, please.

MS. W.F.: ...expecting to be here at 9:45 and....

THE COURT: The case was scheduled for nine o’clock, Ma’am. All of the arguments have been made, I’m just finishing from hearing from - hearing father. Sir, was there anything further? I think I’ve assured you that I was aware you did have a plan.

After further discussions with counsel, the court addressed the Appellant:

THE COURT: Madame, je vais vous parler en français puisque vous avez insisté à une procédure en français, malgré le fait que votre avocat ne parle pas le français, que vos matières ont été écrites en anglais, et que toutes les soumissions ont été faites en anglais. Et que vous avez eu la ténacité et le jugement de vous présenter à la cour a 10h10 quand cette audience a été organise pour 9h00 du matin. Donc, si vous avez quelque chose à me dire, je vous invite, par politesse, de vous permettre de m’adresser et après nous allons terminer.

I have said, for the benefit of those of you who don’t speak French, that this matter was set down for a French hearing at the request of a party who didn’t bother to show up until ten after ten, when it was scheduled for nine o’clock, for a party who retains an English speaking lawyer, who presents all of the materials in English, and who spoke only in English, but out of courtesy I will permit her to address me if she wishes to now and in the language of her choice, which I assume is French.

Je vous écoute, Madame.

MME W.F.: D’accord, je voudrais m’excuser si – c’était range par – selon notre procédure....

THE INTERPRETER: I wish to rescind my excuses if I have actually caused you any trouble here in the procedure.

MME W.F.: C’est – je voudrais – c’était mon – j’étais vraiment sur l’impression que j’étais supposée d’être ici à 9h45 et ça débuterait a 10h00, mais – et j’ai pensé que c’était au centre ville de Toronto parce que moi je viens pas de Toronto, c’est (inaudible) des enfants.

THE INTERPRETER: I should like to still have a moment. I actually arrived here at this time because I thought that the time would be at ten o’clock and I would arrive at 9:45 presuming that this location was in downtown Toronto.

MME W.F.: Et je viens pas de Toronto.

THE INTERPRETER: And I – I haven’t come here from the Toronto area.

MME W.F.: Et ce n’est pas le domicile des enfants.

L’INTERPRÈTE: Pardon?

MME W.F.: Et ce n’est pas le domicile des enfants.

THE INTERPRETER: And this isn’t the location where my children are.

MME W.F.: Mon domicile c’est (inaudible).

THE INTERPRETER: Well – the domicile, this is not where my children are domiciled.

MME W.F.: Je comprends pas pourquoi ils les ont placé à Toronto au lieu de leur domicile.

THE INTERPRETER: I don’t know where [sic] they chose Toronto as their domicile.

MME W.F.: Non. Êtes-vous entrainé en droit civil?

LE TRIBUNAL: C’est bilingue, Madame. Juste parle français.

LE TRIBUNAL: Je parle français couramment et je suis d’abord un avocat et deuxièmement un juge. Je suis entrainé dans la loi qui s’applique dans cette juridiction. Avez-vous d’autres questions de mon éducation et mes capacités?

L’INTERPRÈTE: Excusez? Are you trained as far a still law is concerned? If so, I have been trained to exerce [sic] jurisdiction – exert jurisdiction in this area. I’m a lawyer and then a judge. Do you still have any questions relating to my ability?

MME W.F.: J’ai plus de questions sur votre habileté, je suis convaincu que vous avez toutes les qualifications.

THE INTERPRETER: I’m not questioning your ability, I’m persuaded that you have all the Qualifications.

MME W.F.: C’est seulement – moi j’ai un degré en droit civil....

THE INTERPRETER: I – it is only I have a civil law degree.

MME W.F.: Et c’est le système que je connais je viens d’(….).

THE INTERPRETER: And this is the system I know. I am from (….).

MME W.F. : Et mes enfants viennent d’(….) aussi.

THE INTERPRETER: And my children also come from (….).

MME W.F.: C’est la seule raison pour que j’ai levé les questions de domicile.

THE INTERPRETER: This is the only reason I had to raise the domicile question.

MME W.F.: Je sais pas si c’est applicable Toronto ou pas.

THE INTERPRETER: I don’t know if this is applicable in Toronto or not.

MME W.F.: Excuses-moi si ça vous a dérangé.

THE INTERPRETER: And excuse me if I have caused any trouble.

MME W.F.: En tout cas y’avait une partie des matériaux qui étaient soumis en français.

THE INTERPRETER: In any case there was a part of the materials that were submitted in French.

MME W.F.: Et j’ai opté pas pour français, ni Anglais, mais un procès de – en deux langues.

THE INTERPRETER: And I didn’t choose a procedure to take place in French or only in English, but in the two languages.

LE TRIBUNAL: Et ceci est ce que vous avez eu, Madame.

MME W.F.: Pardon?

THE INTERPRETER: And this is what we have just had, Madam.

MME W.F.: Oui, merci. Est-ce que ça – je pourrais parler avec mon avocat?

THE INTERPRETER: Can I speak to my lawyer?

LE TRIBUNAL: Oui, Madame. On vous attend

THE INTERPRETER: Yes, we will wait for you.

LE TRIBUNAL: Combien de temps voulez-vous?

THE INTERPRETER: How long do you wish?

[19] It appears to me based on the quoted passages of the transcript that the Appellant speaks and understands French fluently. In my view the motions judge erred in fact in concluding otherwise. The Appellant’s counsel (who was not the counsel who acted for the Appellant before the motion judge) confirms that the Appellant communicates with him in French. Counsel for the Appellant does not request a remedy in respect of the motions judge’s rulings and comments as to her request for a bilingual proceeding, but does request that this court enunciate that an error has been made in the court below in challenging the Appellant’s request for a bilingual proceeding. A bilingual proceeding did take place at the request of the Appellant when she requested it.

[20] I do not have a ready solution for the problem that the motion judge stated gave rise to his concern with respect to the possibility of obstructionist litigants and their counsel invoking linguistic rights as a delay tactic, other than to note that it should be sufficient to advise all litigants of the right to a bilingual proceeding at the outset in order to ensure that they are aware of that right. It is my understanding that the bar is under an obligation to advise clients of the right to have a bilingual proceeding.

[21] It is clear, as expressed by the decisions of the Supreme Court of Canada and the Court of Appeal quoted supra, that language rights cannot be infringed upon, and that a judge who attempts to weigh and evaluate the ability of a person to speak French in the matter which was attempted in this case invites an appeal, long delay, and potential prejudice to the children involved.

[22] The appeal is dismissed for the reasons given.

Paisley J.

Date of Reasons for Judgment: Friday, October 30, 2015
Date of Corrected Reasons for Judgment: Tuesday, November 3, 2015

Date of Release: November 10, 2015