This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
-(8) 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.
-(3) A person who contravenes subsection 45(8) (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
Court File and Parties
COURT FILE NO.: C-25/14 DATE: 2017-06-02 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Catholic Children’s Aid Society, Applicant AND: B.W-B., Respondent (Mother) F.M., Respondent (Father) S.B., Respondent (Maternal Grandmother)
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: M. Anis, Counsel for the Applicant B.W-B., Self-Represented Respondent F.M., Not in Appearance J.B., for the Respondent, S.B.
HEARD: May 26, 2017
Endorsement
[1] This is a very difficult motion.
[2] J.B. is solicitor of record for the maternal grandmother, S.B. On May 23, 2017 he brought the motion returnable today asking that he be removed from the record as her solicitor.
[3] S.B. is present and consents to the order. She confirmed that she has “fired” J.B. because she is dissatisfied with his services and not confident that he would properly represent her interest in the future.
[4] The self-represented mother declined duty counsel and takes no position on this issue.
[5] Given the nature of the issue, I asked if B.B-W. wanted to see duty counsel for independent legal advice but she declined.
[6] The Society is opposed to the request. The Society’s concerns include the following:
a. A 15-20 day Crown wardship trial is scheduled for the sittings of June 5, 2017. That means the trial could be called as soon as 10 days.
b. The subject child is two year old A.M.M. who has been in care more than two years.
c. The Society is concerned that if S.B. ceases to have legal representation, then this may result in a request that the trial be adjourned to allow her to obtain replacement counsel. The Society is very concerned about any further delay in the resolution of this young child’s life, particularly since any adjournment of a 15-20 day trial would likely result in a very significant delay as a result of the court’s scheduling limitations in finding blocks of time for such a long trial.
d. S.B. insists that she is aware that if J.B. is removed from the record she will be responsible to represent herself at the trial. She says she is entirely capable of doing so. She has attempted to assure the court that while representing herself would not be her first choice, if the only choice is to have J.B. represent her or representing herself, she would prefer to represent herself.
e. Society counsel Ms. Anis has expressed concern that while S.B. may make such an undertaking to the court at this stage, if the trial is called there would be nothing to prevent S.B. from expressing to the trial judge her inability (or lack of qualification) to proceed. The Society’s concern is that no matter how much S.B. promises that she will not ask for an adjournment of the trial, there is nothing to prevent her from conveying to the trial judge certain statements or frustrations which would place the trial judge in a difficult position of having to consider (or initiate) discussion about adjourning the trial to allow S.B. to retain counsel or get proper legal advice.
f. Ms. Anis notes that this very dilemma was specifically addressed by Justice Chappel in her endorsement of February 1, 2017 in which she specifically endorsed that if J.B. or another solicitor then on the file wished to be removed from the record in relation to the trial “they shall address this issue by way of motion to be originally returnable by no later than April 7, 2017”. The other lawyer made arrangements to be removed from the record by that deadline. But neither J.B. nor S.B. met Justice Chappel’s April 7, 2017 deadline.
[7] The difficult issue of counsel seeking to remove themselves from the record on the eve of a CFSA trial was thoroughly canvassed in CCAS of Toronto v F.H. & R.B. 2011 ONCJ 428, and Jewish FACS Toronto v J.Z. (OCJ 13 Spence) 2013 ONCJ 461.
[8] I adopt the cautious and balanced reasoning set out in both of those decisions. While parties have the right to be represented by counsel of their choice, and they have the right to represent themselves, the court must also address the inevitable reality that self-represented parties quite often (and understandably) seek last minute adjournments of trials, even if they have promised not to do so. No amount of promising in advance precludes the issue from arising, and this in turn might predictably jeopardize the trial proceeding and the resolution of this child’s life.
[9] Primacy must be given to the determination of A.M.M.’s situation. She has already been in care longer than the period prescribed by the legislation, and I cannot allow any circumstance in which the trial might be jeopardized.
[10] J.B.’s motion to be removed from the record is dismissed, without prejudice to the trial judge addressing the issue at the commencement of trial.
[11] In the circumstances, S.B. is allowed (but not restricted) to communicate with the Society counsel directly. If there are reports or documents that she feels should have been filed or produced, she should arrange to have all of those documents or information forwarded to Society counsel as quickly as possible. In the circumstances, I will leave it to the trial judge to determine whether notice provisions with respect to reports and evidence will have to be waived or amended.
[12] When the trial is called, the trial co-ordinator should contact J.B. on behalf of S.B. but in addition the trial co-ordinator should call S.B. as well at the following number: *** -*.
Pazaratz, J. Date: June 2, 2017