Court File and Parties

COURT FILE NO.: FS-17-00021652-0000 DATE: 20170725 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: JEWISH FAMILY AND CHILD SERVICES OF GREATER TORONTO Applicant – and – L.I.R. Respondent

Counsel: Sara Westreich, for the Applicant Sarah Clarke, for the Respondent Caterina E. Tempesta, for the Children’s Lawyer

HEARD: Monday, July 17, 2017

Reasons for Decision

Warning Regarding Publication

The court hearing this matter directs that the following notice should be attached to this file: This is a case under Part III of the Child and Family Services Act and is subject to subsection 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:

45.(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.

Before: Harvison Young J.

Overview

[1] This is a motion which arises out of a continuing protection proceeding regarding H. (15 years old) and C. (12 years old). The moving parties seek a stay of two orders:

a. That neither child could attend the protection hearing;

b. That the children were not to be given the full report prepared by Mr. Howard Hurwitz.

[2] The moving parties on this motion are the H. and C., and the father, L.R. Jewish Child and Family Services (JCFS), represented by Ms. Westreich, opposes the motion, as does the children’s mother, T.D.

[3] The protection hearing was scheduled to commence before Curtis J. in the Ontario Court of Justice (“OCJ”) at noon on Monday July 17, 2017. The OCL advised this court on the afternoon of Friday, July 14, 2017 that it wished to bring an emergency motion for a stay of the following orders made by Curtis J. on July 11 and 13, 2017 pending a determination of the appeals in this matter:

(a) An order under s. 39(4) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (“CFSA”) that the children H. and C. not be permitted to attend court in this case; and

(b) An order that the children H. and C. shall not be provided with the report of Howard Hurwitz dated April 28, 2017 (the Hurwitz Report), except as directed by Mr. Hurwitz.

[4] H., C. and their father also sought a stay of the protection proceedings pending a determination of the appeals [^1] in this matter. I note that notices of appeal had not been filed as of the hearing of this motion.

[5] As there was no judge available at such short notice on the afternoon of Friday July 14, the motion was scheduled to begin at 9:00 a.m. on Monday, July 17. The intention of the parties had been that this court would hear the motion and render its decision on the stay motion to permit the parties to attend the OCJ at noon as scheduled. This did not happen. The hearing before this court was not completed until mid-afternoon. In the meantime, the parties arranged with the OCJ that the protection hearing there would be put over until Wednesday, July 19, 2017 at 11:00 a.m. At the end of the hearing before me, I advised the parties that I would require additional time given the lengthy submissions and voluminous materials to reach a decision, which I would communicate with the parties and then release my reasons as soon as possible.

[6] At 8.30 am on Wednesday, July 19, I asked the court staff to contact counsel to advise them that the motion is dismissed and that no stay orders sought would be granted, with reasons to follow. These are those reasons.

Background

[7] JFCS began the protection application seeking an order for temporary care and custody of H. and C. on December 19, 2016 due to concerns that the children were at risk of emotional harm as a result of their exposure to the high level of conflict between their parents, following the death of their older sibling J., the parents’ subsequent separation a few months later, and the ensuing very high conflict litigations. There were also concerns that the father was alienating H. from the mother and that, if given the opportunity, he would similarly alienate C.

[8] Mr. Howard Hurwitz was retained in January 2017 to conduct a family assessment, interviewing all family members with a view to determining a treatment plan and other recommendations. According to the JFCS evidence, it decided not to proceed with a motion pursuant to s. 60 of the JFCSA out of concern that the litigation would further escalate the tension between the parents and in the hope that the therapeutic process could proceed and address the protection concerns. Mr. Hurwitz released his report (“the Hurwitz report”) titled “Clinical Intake Consultation Overview”, on April 28, 2017. As Curtis J. notes in her reasons, the father left an all-party disclosure meeting (with the children and both parents present) angry and swearing. The incident and the father’s behaviour was concerning enough to JFCS that it opened a child protection investigation with respect to it. The Hurwitz report recommended (among other things) family counselling for all family members, as well as individual counselling.

[9] In its amended motion in the OCJ dated July 10, 2017, JFCS sought a continuation of the December order placing C. in her mother’s care, subject to terms of supervision by the JFCS, and placing H. in the care of his paternal grandparents, P. and M. R., concurrently with the following alternative orders:

(i) that the father L.R. shall not reside in any residence where H. is residing; OR

(ii) that access or contact by the father to H. would be prohibited except with the prior approval of JFCS; OR

(iii) placing H. in the temporary care and custody of JFCS.

[10] Understandably, Curtis J. and the parties worked on tight time lines with a view to determining the merits of the protection proceeding as expeditiously as possible. On consent, the date of July 17, 2017 was set as the date for the hearing of the temporary care proceeding. By mid-June, the issues of whether the children should be granted access to the Hurwitz report and whether they should be permitted to attend the protection hearing had been raised. The JCFS decided to bring a motion that the Hurwitz report not be provided to the children and that they not be permitted to attend the hearing. On consent, those motions were heard in writing. The parties also consented to the tight timelines with a view to meeting the date for the July 17, 2017 hearing.

[11] All parties except for the OCL complied with the timelines. The timelines provided that the JFCS was to submit its materials by Friday, June 30, the Respondent Mother by Wednesday, July 5, the OCL by Friday, July 7 and the Respondent Father by Friday, July 7. The JFCS reply was due (and provided) by Monday, July. 11. The OCL was 1 hour late (4:54 p.m. when the deadline was 4:00 p.m.) on Friday July 8. Curtis J. refused to accept them and refused to grant OCL a short extension to allow it to file its materials. She released her decisions on July 13, 2017. As I will discuss below, the OCL submits that this refusal constituted a failure to respect the procedural fairness and s. 7 Charter rights of the children.

[12] Curtis J. granted the relief sought on July 13, 2017 in extensive reasons which were released on July 17, 2017. The children and the father ask this court to stay those orders pending appeal.

The Issues

[13] As I have already explained, the issues in this motion are (a) whether a stay of the two orders made by Curtis J. should be granted, and (b) whether a stay of the proceedings as a whole should be granted.

[14] The test for staying an order pending an appeal is well-known and set out in the Supreme Court of Canada decision in R.J.R.-MacDonald v. Canada, [1994] 1 S.C.R. 311 at para. 43:

…First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[15] The parties have agreed that in applying this test in the child protection context, the court must consider the test through the prism of the best interests of the child. I agree.

Right to Participate

[16] The central provision governing the question of a child’s presence at a protection hearing is set out at 39(4) of the Child and Family Services Act, R.S.O. 1990, c. C-11:

(4) A child twelve years of age or more who is the subject of a proceeding under this Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.

[17] The JFCS factum takes issue with the OCL’s position which appears to suggest that this test applies to the issue as to whether the proceedings as a whole should be stayed, pointing to ss. 106 - 107 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the case of X. v. Y., 2015 ONSC 7632. The OCL did not press this issue in oral argument before this court. I do not see any basis to grant a stay of these proceedings.

The Motions Judge’s Decision

Should the orders be stayed?

[18] Having carefully considered the parties’ submissions and the applicable law to these circumstances, I concluded that neither order should be stayed.

[19] The two orders together as they raise very similar issues relating to the children’s rights to participate and be heard. In summary, even if there is a serious issue to be tried, I am not satisfied that the balance of convenience lies with granting the stays or that there would be irreparable harm to the children if the stays are not granted.

[20] I will address the three limbs of the test for a stay in turn.

Is there a serious issue to be tried?

The OCL’s submissions

[21] Ms. Tempesta for the OCL made the vast majority of submissions on behalf of all the moving parties.

[22] The OCL’s position may be broken down into 2 main parts. First, it argued that the trial judge committed a serious error in refusing to accept its materials which were only an hour late, which error violated the children’s rights to procedural fairness and natural justice. The consequence of this error, it submitted, is that the full facts and arguments of the children were not in front of the motions judge when she drafted her decision. The OCL also submits that the impugned errors compromise the children’s right to legal representation, suggesting that it may withdraw from the case in the event that the stay orders are not granted. Second, the OCL argues that, in any event, the children have a presumptive right to be present under s. 39(5) of the CFSA which the judge erred in applying.

[23] On behalf of the father, Ms. Clarke submitted that even if there was a basis for denying C. the right to attend the hearing or to review the report, H. should be permitted to attend and to review the report. C.’s position was while it was her preference to attend and to review the report, she felt more strongly that if H. were to be permitted to attend and review the report, she should be as well.

[24] Ms. Westreich for JFCS (who also made the vast majority of submissions on behalf of the mother as well) submitted that there is no serious issue to be tried that the trial judge was not entitled to make the impugned orders. Although the JCFS acknowledged the fact that the threshold is low for this limb of the test, it maintained that it has not been met. It submitted that the trial judge quite properly refused to accept the late materials, and more importantly, it argued that the children’s views and evidence were before the court in other materials in the material considered by the motions judge, and that she considered all the appropriate legal tests. With respect to the presumptive right to be present at the hearing, it submitted that this is presumptive only, and subject to the judge’s finding that presence would cause emotional harm, which she expressly found. Accordingly, the decision to grant the orders was discretionary and the test for reversing a discretionary decision on appeal or review is a very high one.

[25] If there is a serious issue to be tried, in my view, it arises only from the motions judge’s refusal to consider the OCL late materials and the question of whether this constituted a denial of procedural fairness or natural justice. If it does constitute a serious issue, however, it is at the very low end of the spectrum of “serious issue” for a number of reasons. First, all parties including the OCL agreed to the timeline. The judge agreed to this timeline which meant that she was to be required to complete her decision very quickly, which she did. She produced extensive reasons in only 3 days. Second, the motions judge was the case management judge and was very familiar with the views of the children and the issues in the case. Third the JFCS filed its reply materials on time. These materials addressed the very legal issues raised by the OCL in its materials that the court declined to accept. [^2] Although the motions judge did not (and could not have, given the time constraints) refer to every morsel of law and evidence in the record before her, it is clear from her reasons that she was very alive to the issues, evidence and law at play.

[26] Fourth, and importantly, the wishes of the children as they had expressed them to their counsel were before the court contained in an email that formed part of the record. These children are highly intelligent and articulate. Curtis J. had spoken directly to H. when he attended the conference on March 15, 2017. It is clear from her reasons that she was very familiar with the record before her, and very alive to the fact that these children, and H. in particular, had expressed the wish to attend court and to review the Hurwitz report. She told H. in person that while the court cared about and respected the views and preferences of the children, the decisions would be made by her. She repeatedly referred to the fact that H. is highly intelligent and that he had strongly expressed his views.

[27] I do not accept the OCL argument that the orders violate the solicitor-client relationship for reasons I discuss below in the context of the irreparable harm submission. Nor do I consider that there could be any serious question that the motions judge had no jurisdiction to order that the children not be given the Hurwitz report given both the analogous provisions in the CFSA and the need to control the process before her.

[28] I do not accept the argument that she failed to give sufficient weight to evidence such as the expressed wishes of the children. She expressly applied s. 38(4) of the CFSA which treats the rights of children 12 and over to be present at a protection hearing as presumptive. However, she also expressly found that they would suffer emotional harm. After noting that “[a] child’s views and preferences in a child protection case are not necessarily determinative” (Reasons for Decision, para. 54), she stated that even with respect to older children, it “will not follow these choices where doing so would place the child at risk of harm”. She continued at para. 55:

These children are very much immersed in this litigation and in the conflict around their parent’s separation and the custody and access dispute. Regrettably, they are far too immersed in the conflict, and in the litigation. The conflict and the current relationship between the parents is toxic. The children are being harmed by the conflict.

[29] There was ample evidence in the record to ground the motions judge’s conclusion that “[t]he evidence of emotional harm for these children if they attend court is over-whelming”.

[30] The motions judge is entitled to a high level of deference in exercising the discretion which is clearly granted by s. 38(4) of the CFSA and I see no errors that could justify interfering with it that could meet even the low threshold required to constitute a “serious issue to be tried”.

[31] However, I do not need to determine whether there is a serious issue to be tried in these circumstances because I am satisfied that there would be no irreparable harm in giving them the report or in excluding them from attending the hearing. I am also satisfied that the balance of convenience favours the dismissal of the stay motions.

Irreparable Harm

[32] The OCL also submitted that the question of whether the motions judge should have accepted its late material affects the question of irreparable harm. It argued that, had its materials been accepted, the judge would have had materials before her that could have affected her assessment of the harm to the children if they were given the Hurwitz report or permitted to attend.

[33] I accept the submission of the parties that in considering irreparable harm in cases involving children, the court should also consider whether irreparable harm would result from refusing the relief sought. However, I am satisfied on the record that the harm resulting from the stay orders sought would likely be greater than the harm resulting from not granting stays.

[34] As the JFCS points out, the OCL has pointed to no clinical evidence that undermines the assessment of the motions judge that receiving the Hurwitz report and/or attending the proceeding would be emotionally harmful to these children. The OCL suggested that C., who has been found to be suffering from anxiety disorders and related issues, may suffer anxiety as a result of worrying about what is going on than she would be attending. While the OCL correctly pointed out that Mr. Hurwitz has not been qualified as an expert, it is also the case that no party has so required or taken any issue with his expertise at any point in the proceeding.

[35] Moreover, Mr. Hurwitz has taken the position since before he released his report that it should not be shared with the children and was not written to be shared with the children. His view is that it is harmful to the children to be privy to the sorts of details he sets out in his report about the parties. He has offered to meet with the children to discuss its recommendations with them. This has to date been unsatisfactory to H. who wishes to review the report in advance to prepare his questions for the meeting with Mr. Hurwitz.

[36] Furthermore, this is a case in which the basis for the protection application itself is the involvement of these children in the conflict between their parents and the concern about emotional harm to them. One of the instances mentioned by the motions judge was the incident on April 28, 2017 in which the father left the disclosure meeting swearing. The nature of this case and its history means that the hearing is quite likely to be particularly emotionally fraught. Exposure and involvement in parental conflict between their parents is well-recognized as damaging to children. There is no basis for finding that these children would suffer irreparable harm by being excluded from this proceeding or from being refused access to the Hurwitz report at this point. There are a number of ways that they could be appropriately informed as to what takes place at the hearing later. As I have already discussed, their views have been very clearly expressed and their counsel are very aware of these views. The motions judge was very aware of H.’s wishes which were in the record before her.

[37] The OCL states that there is no basis for finding that H. suffered any harm as a result of his attendance at the conference. With respect, that does not address the issue in a case such as this where the allegation is that the harm to this highly intelligent child is his continuing involvement in this litigation along with the exposure to the intense conflict which has, so far, been manifest in his alignment with his father and resistance to his mother. The father’s position is essentially that H. is an unusually gifted and mature child who deserves to be treated like an adult and given full participatory rights, and H. also expresses a similar view. However, as the motions judge recognized, he is only 15 years old, and like the rest of this family, has suffered significant tragedy and dislocation in the course of his young life with the illness, death, and then separation of his parents. There is no clinical evidence of any sort to suggest that in his case, attendance and participation of the sort advanced by the OCL is better for him than not attending. The trial judge considered the father’s submission that the children were “already suffering stress and anxiety from being excluded from the courtroom and by not hearing directly from the court” (para. 63). She found that the children would not benefit from attending court and that attending “would only perpetuate the history of the children being caught in the crossfire of parental conflict” (para. 64). She found that the evidence that the children would suffer emotional harm was “overwhelming”. Her conclusion on this point was well grounded in the record before her.

[38] I also reject the OCL’s submission that it is unable to properly represent the children such that it may be required to withdraw if the orders stand. The suggestion is that the absence of legal representation would constitute “irreparable harm” that this court should take into account. I disagree.

[39] These same tensions underlined by the OCL exist with children (particularly intelligent and articulate children like H. and C.) who are under 12 where there are no presumptive rights to attend protection proceedings. In those cases, counsel must find ways of effectively representing the children and putting their views before the courts. The fact is that the CFSA grants child protection courts the concurrent powers to both appoint legal representation for children in a variety of circumstances and also to restrict the children’s right to participate in the process through attendance at court and access to records in a number of sections: see ss. 38, 39(4) and (5), 54(5), 114(6) and 116(6) of the CFSA.

[40] Here, the children’s views with respect to the custody and access proceeding are very clear and the motions judge, as her reasons indicate, was very well aware of them. With respect to the Hurwitz report, the alternative modes of disclosure that Mr. Hurwitz has offered could well have eliminated any concerns by the OCL on this point.

[41] In short, given the lack of any clinical basis to support the suggestion that exclusion from this hearing would be more harmful to these children than including them, I see no basis for finding that it would cause irreparable harm to them to be present at the hearing where they would again be physically and emotionally implicated in this highly-conflicted proceeding. The motion judge’s finding that attending would cause emotional harm was well-grounded in the evidence before her. Nor do I find any basis for finding that refusing to give them a copy of the Hurwitz report would cause them irreparable harm. In particular, I do not accept that it would not be possible for the children to properly instruct and discuss it with counsel without being given the entire document.

[42] For these reasons I find that the OCL has not established that staying these orders would cause these children irreparable harm. I agree with JFCS that, based on the findings of harm properly made by the motions judge on the record before her, granting the stays would be harmful to the children.

Balance of Convenience

[43] If these stays were granted, either the proceeding would continue with the children in attendance and having been given the Hurwitz report in its entirety, or the matter would be significantly delayed pending appeal. This is a case in which the record shows that the JFCS has serious concerns which include H.’s homicidal emails (to his mother) and suicidal ideation, along with a continuing refusal to undergo treatment. For her part, C. has suffered from a significant anxiety disorder. Given the existence of other means to communicate the essence of the protection hearing and the Hurwitz report to the children, and given the fact that an appeal would invariably seriously delay the resolution of this matter and prolong the stress and anxiety around the JFCS application, I am satisfied that the balance of convenience requires that the children’s best interests be protected by refusing the motion for stays of the orders.

Conclusion

[44] For the foregoing reasons, the motion to stay the order of Curtis J. dated July 14, 2017 is dismissed.

[45] At the hearing, the JFCS advised that it intended to seek its costs of this motion if successful. The parties shall attempt to agree on this issue. If they are unable to do so, they may file bills of costs and brief (2-3 pages) of submissions in writing (setting out the issue of the JCFS’ entitlement to seek costs (as raised by Ms. Westreich) within 30 days on a timetable to be agreed upon among themselves.

Harvison Young J.

Released: July 25, 2017

[^1]: As of the hearing of this motion on July 17, 2017, no notice of appeal had been filed. [^2]: The motions judge advised the parties on Monday July 11 that she would not accept the OCL late materials that had been due the previous Friday July 8. She issued her reasons on July 13.