M.C. and M.S. 2018 ONSC 1431
COURT FILE NO.: FS-17-00021907
DATE: 20180309
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHILDREN’S AID SOCIETY OF TORONTO
v.
M., C. (mother) and M., S. (father)
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO s.45(7) OF THE CHILD AND FAMILY SERVICES ACT, BY ORDER OF MADAM JUSTICE KITELEY, SUPERIOR COURT OF JUSTICE, DATED MONDAY, FEBRUARY 26, 2018.
P R O C E E D I N G S
BEFORE THE HONOURABLE MADAM. JUSTICE KITELEY
on MONDAY, FEBRUARY 26, 2018
at 393 University Avenue, Toronto, Ontario
A P P E A R A N C E S:
Ms. Christine Doucet
Counsel for the Children’s Aid Society for Toronto
Mr. Eric Sadvari and Ms. Meghan O’Neil
Counsel for the Appellant
Ms. Margarida Pacheo
Counsel for the Office of the Children’s Lawyer (representing both children)
Mr. M., S. (father)
Unrepresented
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
W I T N E S S E S
WITNESSES
Examination In-Chief
Cross- Examination
Re- Examination
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Transcript Ordered:
February 26, 2018
Transcript Completed:
March 9, 2018
Ordering Party Notified:
March 9, 2018
MONDAY, FEBRUARY 26, 2018:
U P O N R E S U M I N G:
R E A S O N S F O R D E C I S I O N
KITELEY J.: (ORALLY): This is an appeal from the decision of Weagant J. dated November 6, 2017 in which he dismissed the motion by the Children’s Aid Society of Toronto for leave to withdraw the protection application. For the reasons that follow, the appeal is granted.
The children are 11 and 13. The parents separated in 2013. The mother started proceedings in the Superior Court in which she asked for sole custody or alternatively joint custody.
From some time in 2014, the children spent roughly equal time with each parent.
In February 2013, the Children’s Aid Society initiated its first protection application. For some months the children lived primarily with the father. In September 2014, the court granted leave to the Children’s Aid Society of Toronto to withdraw the protection application on the basis of a voluntary agreement with the parents.
In January 2015, the Children’s Aid Society of Toronto received a call from the school that raised protection concerns. The second application was launched in June 2015 and it was based on the affidavit of Singer dated June 10, 2015. It indicates that the Children’s Aid Society of Toronto raised a risk of harm to the children if left in the care of their mother.
On June 19, 2015, without finding that the children were in need of protection, Katarynych J. made an order that the children were placed in the temporary care and control of the father. That is the only order dealing with care and control in the protection application. There have been several orders steadily increasing the mother’s access.
In the spring of 2017, the Children’s Aid Society of Toronto brought a motion for summary judgment that was adjourned because the parties had agreed to mediation.
Mediation did not take place.
The Children’s Aid Society of Toronto brought a motion for leave to withdraw the protection application that was dismissed and that is the subject of this appeal.
In that motion for leave, the CAS relied on the affidavit of Aiken sworn November 6, 2017. In that affidavit, she described what had unfolded in 2017 with respect to the children seeing their mother. Aiken deposed that there were no child protection concerns regarding the children living with their father and that her focus had been on setting up their contact with their mother. She said that the father had arranged for the children to see a therapist; that in April the boys had expressed concern about having contact with their mother in her home; that given the age of the children, the terms of the contact with their mother had been agreed upon in discussion with them; that on the occasion of meeting with the boys in July at their father’s home, their lawyer was included in the discussion; that the boys were in agreement to be more flexible and that the plan was made for them to spend time in the community walking the mother’s dog; that the deponent had made suggestions about how to maintain contact. Importantly, Aitken deposed that it had not been useful for the family for her to set up what she thought the contact should look like as the children wanted to have the ability to have control over planning and setting things up within their own family. Aiken indicated that she was requesting to withdraw the Protection Application as there was no role for the Society with the family.
I have the transcript of submissions made on November 6, 2017. At the outset, the Motion Judge inquired about the parallel proceedings that the mother had launched years earlier in the Superior Court. In response to a question from the Motion Judge, Mr. Sadvari confirmed that there was a parallel domestic file in the Superior Court. In her submissions, although not included in the affidavit of Aiken, Ms. Doucet indicated that the litigation should take place in the domestic court not in the child protection court. The Motion Judge expressed a concern that if the protection application was withdrawn, then the orders made “evaporated”. In his endorsement that day, the Motion Judge indicated that if leave to withdraw were granted, the father would leave court without an order. He noted that there were still outstanding custody and access litigation at the Superior Court where the mother was seeking custody of the children. He also noted in his endorsement that there was a prima facie case for a finding at the time the application was commenced.
The appeal was brought by the mother. The Children’s Aid Society opposed the appeal and asked that it be dismissed. The father (without counsel) and counsel from the CAS attended.
My preliminary question was whether the Children’s Aid Society ought to be permitted to make submissions opposing the appeal when it initiated the motion for leave to withdraw. Ms. Doucet indicated that her primary motivation was to address the standard of review which she had done comprehensively in her factum. Given the inconsistent positions that the Society was taking between seeking leave to withdraw on the one hand and defending the decision of the motion judge not to grant leave, I declined to hear her oral submissions.
The Motion Judge’s discretionary decision to dismiss the motion for leave to withdraw is a question of mixed fact and law and therefore the standard of review is palpable and overriding error. As indicated at paragraph 34 of the Children’s Aid Society factum, trial judges’ decisions, particularly in matters of family law, should not be interfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment. In family law cases, appellate courts have a narrow scope of review due to the fact based and discretionary nature of the decisions to be made. Appellate courts must give considerable deference to decisions of family and child protection court.
The citations are:
Van de Perre v. Edwards 2001 SCC 60, [2001] 2 S.C.R. 1014 at paragraph 11; and
C. (G.C.) v. New Brunswick (Minister of Health and Community Services) (G.C.C.) 1988 CanLII 34 (SCC), [1988] 1 S.C.R. 1073 at paragraph 5.
Those authorities refer primarily to decisions of trial judges who have heard oral evidence and made findings of credibility and reliability. In this case, the only evidence was the affidavit of Aiken to which no other party objected. There was no contradictory evidence.
In the decision of Catholic Children’s Aid Society of Toronto v. D.B. 2002 CanLII 53290 (ON CJ), [2002] O.J. No. 2318, Jones J. identified the following factors as relevant to a determination that a withdrawal would be the appropriate disposition:
Whether any continuing protection concerns exist;
Whether all parties consent to the withdrawal;
The reasons for the withdrawal; and
How the withdrawal would affect the fairness of any other pending custody litigation.
I agree that the motion judge made the following palpable and overriding errors:
He failed to consider the uncontradicted and unchallenged evidence of Aiken on behalf of the Society that the Society had no ongoing protection concerns. On the basis of that evidence, the court could not seek an order that the children were in need of protection. In bringing the motion for leave to withdraw, the Society acknowledged it could not pursue such a finding.
He failed to consider that all parties consented to the withdrawal. In the case of Catholic Children’s Aid Society of Toronto v. D.B. and in the decision of Children’s Aid Society of Algoma v. A.S. 2011 ONCJ 393, [2011] O.J. No. 5612, the mother opposed the withdrawal. In the former case, Justice Jones held that that was a significant factor and dismissed the request for leave to withdraw. In CAS Algoma v. A.S., Kukurin J. concluded that the case was more custody and access than child protection and granted the motion for leave to withdraw. In this case under appeal, the mother supported the Society’s motion for leave to withdraw and the father either acquiesced or supported the motion. In any event, there is no evidence on which to find that the withdrawal would affect the fairness of the custody litigation initiated by the mother in the Superior court.
The motion judge failed to consider the reasons for the withdrawal. In addition to having no protection concerns, Aiken said in her affidavit that there was no role for the Society to play in the family. The motion was supported by Ms. Pacheco, counsel for the OCL, who voiced the children’s concerns about too many people being involved in their lives, and she pointed out that the older child at age 13 had participated in the proceedings (and was present on November 6, 2017) and that that was not desirable.
To the extent that his focus was on the domestic proceedings, the Motion Judge inverted the legal issue: there was no evidence or submission that withdrawal would affect the fairness of any other pending custody litigation (such as the court found in CCAST v. D.B.). Furthermore, he relied on speculation that the children would be at risk if the temporary care and control order “evaporated”.
As indicated above, there had been several orders addressing the mother’s access with the children. But as of November 2017, there was no order that reflected what was the status quo as described by Aiken in her affidavit. The withdrawal of the protection application would have no impact on the access by the mother.
- Lastly, the motion judge failed to consider all relevant factors and instead focused on the domestic proceedings in the Superior Court of Justice.
Counsel for the appellant also argued that the motion judge erred by not considering that 760 days had elapsed since the protection application was issued in June 2015 and that was well beyond the time constraints established in rule 33. I decline to accept that submission. It was not made to the motion judge and although all judges must be cognizant of the regulatory time limitations, he was not asked to consider it. Under those circumstances, I do not consider his failure to do so to be an error of law.
ORDER TO GO AS FOLLOWS:
“The appeal is granted. The motion in the Ontario Court of Justice by the Children’s Aid Society of Toronto for leave to withdraw the protection application issued in June 2015 is granted.”
Now I forget which case. It might have been Algoma v. A.S. but the judge in a footnote indicated his expectation would be that by the withdrawal of the application that there were no applicable orders. So “evaporation” which was the term that Justice Weagant used, it seems to me that an order saying, “Orders are no longer applicable” is not required. It happens by operation of the withdrawal of the application. Ms. Doucet, do you agree?
MS. DOUCET: I agree, Your Honour.
THE COURT: Mr. Sadvari?
MR. SADAVRI: I agree, Your Honour.
THE COURT: All right. For purposes of today, I have done an endorsement that my Registrar will provide to you as follows:
“For oral reasons given, the appeal from the order of Justice Weagant dated November 6th, 2017 is granted. The motion by the Children’s Aid Society of Toronto returnable November 6th, 2017 for leave to withdraw the protection application is granted.”
Counsel need not specifically order the transcript. I will do that and make sure that it becomes available to all of you in due course and one of you will give a copy of the endorsement to Ms. Pacheco. Thank you all.
FORM 2
CERTIFICATE OF TRANSCRIPT
(SUBSECTION 5(2))
Evidence Act
I, Yvonne Pawaroo
(Name of Authorized Court Transcriptionist)
certify that this document is a true and accurate transcript of:
CHILDREN’S AID SOCIETY OF TORONTO
v.
M., C. (mother) and M., S. (father)
(Name of Case)
THE SUPERIOR COURT OF JUSTICE
held in the: .......................................
(Name of Court)
Ct. 901 - 393 University Avenue, Toronto, Ontario
held at: ...........................................
(Courtroom Number and Court Address)
4899_901_20180226_093840__10_KITELEF.dcr
taken from Recording: ..............................
which has been certified in Form 1.
March 9, 2018
Date Signature of Authorized Court
Transcriptionist
ACT No.: 2989449409
Phone No.: 905-619-0329
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