Court File and Parties
COURT FILE NO.: FC-10-30-001 DATE: February 10, 2017
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Durham Children’s Aid Society, Applicant and L.T., Respondent S.M., Respondent
BEFORE: The Honourable Madam Justice J.E. Hughes
COUNSEL: Z. Day, for the Applicant P. Plourde, for the Respondent
HEARD: January 24, 2017
Warning
This is a case under Part III — Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:
45(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
76(11) PUBLICATION — No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.
85(3) OFFENCES — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Endorsement
[1] Children’s Aid Society’s 14B Motions at Volume 1, tabs 5, 6, and 7 reviewed.
[2] This is an oral motion by Respondent Mother’s counsel to have both the Society’s 14B Motion without notice at Volume 1, tab 5, and 14B Motion without notice at Volume 1, tab 6, and the supporting affidavits at tab 7 of the Continuing Record struck with costs, as it relates to the Society’s requested change to the temporary order made November 10, 2016.
[3] The Society’s position that it made a mistake by not providing in the endorsement that temporary care and custody be to the Society - as opposed to M.T. - is not disputed by Respondent Mother’s counsel.
[4] What is in dispute is the propriety of the Society’s action of bringing a 14B Motion without notice to correct their error.
[5] I make the following findings of fact:
- The change sought by the Society would trigger the legislated time limit and cause a substantive prejudice to the Respondent Mother; more specifically, if the change requested by the Society was granted, the 24-month time limit for Society Wardship per s. 70(1)(b) of the Child Family Services Act, R.S.O. 1990, c. C.11 would commence retroactively to November 10, 2016;
- The Respondent Mother had not been noted in default, and had counsel of record at all material times; and
- It would be procedurally unfair to grant the order sought by the Society without giving the Respondent Mother an opportunity to oppose same.
[6] Accordingly, the Society’s 14B Motions without notice are dismissed.
Costs
[7] Counsel for the Respondent Mother argued strenuously that a significant award of costs should be ordered against the Society for their wrongful conduct. However, I find that dismissal of the Society’s 14B Motions sends a sufficient message to the Society that they should be more careful in the drafting of proposed orders – whether on consent or unopposed.
[8] I am not satisfied that this is a pattern of behaviour routinely exhibited by the Society that requires censure through costs as a deterrent. In my view, the Society’s financial resources are better spent providing services to families. Therefore, there shall be no costs.
The Honourable Madam Justice J.E. Hughes
Released: February 10, 2017