Court File and Parties

COURT FILE NO.: FS-18-3046 DATE: 20181026 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children’s Aid Society of Toronto, Applicant in the Ontario Court of Justice; Respondent in this proceeding AND: R.A.R., Respondent in the Ontario Court of Justice; Applicant in this proceeding T.H., Respondent in the Ontario Court of Justice; Respondent in this proceeding Durham Children’s Aid Society, Respondent in this proceeding Attorney General of Ontario, Constitutional Law Branch, Intervenor in this proceeding

BEFORE: Kiteley J.

COUNSEL: Sarah Clarke and Beth Purdon-McLellan, counsel for R.A.R. Simon Fisch, counsel for Children’s Aid Society of Toronto and agent for Durham Children’s Aid Society Rochelle S. Fox and Yashoda Ranganathan, for the Intervenor Elizabeth McCarty and Jennifer Gallagher, from the Office of Children’s Lawyer

HEARD: October 25, 2018

Endorsement

ENDORSEMENT ON MOTION FOR DIRECTIONS

[1] R.A.R. is the father of A.J.H-R. In a summary judgment motion, in an order dated December 12, 2011, A.J.H-R. was made a Crown Ward without access. R.A.R. had filed an appeal to the Superior Court which was dismissed on July 3, 2012. Following the dismissal of the appeal, the child was adopted. R.A.R. last saw the child in September 2011 when he was four years old.

[2] This proceeding is brought by R.A.R. as a result of receiving notice from the Motherisk Commission in November 2017 that they had reviewed his child protection case and had determined that the results of the Motherisk hair follicle tests at the Drug Testing Laboratory at the Hospital for Sick Children (the MDTL) had played a significant role in the Court’s decision dated December 12, 2011.

[3] In June 2018, R.A.R. brought a notice of motion in the Superior Court in which he asked for an order setting aside the adoption order; an order extending the time to appeal the final Crown Wardship no access order; alternatively a declaration that R.A.R.’s rights had been violated; an order appointing the Office of the Children’s Lawyer to represent the child; an order for directions regarding whether the adoptive parents ought to be added as a party, and an order pursuant to rule 3(5) and 14(12) of the Family Law Rules, waiving any irregularities in the motion. R.A.R. relies on sections 7 and 24 of the Charter of Rights and Freedoms. Counsel also served a Notice of Constitutional Question.

[4] On September 13, 2018, Backhouse J. made an order on consent scheduling this hearing for purposes of counsel making submissions as to the “proper procedural route, venue and statutory pathway” for this case. Counsel for R.A.R., the CAST, and the Attorney General each filed a factum. Durham CAS adopted the position taken by the CAST.

[5] The issue before me today did not include the question as to whether the court should make an order appointing the OCL. However, Ms. McCarty and Ms. Gallagher attended.

[6] On the evening of October 24, 2018 counsel agreed to adjourn the hearing of the procedural issues. Ms. Clarke explained that Valerie Pringle had just contacted Ms. Clarke and others and advised that she had been retained by the adoptive parents and she needed time to take instructions as to what position the adoptive parents would take.

[7] Since all counsel listed above attended, rather than simply adjourning, I used this as an opportunity to explore with counsel how this matter would proceed.

[8] I understand that as a result of the Motherisk Independent Review and the Motherisk Commission, Legal Aid Ontario had established a fund for providing certificates to parents such as R.A.R. Although that fund appears to have been terminated, I understand that Legal Aid Ontario is showing some flexibility. I am optimistic that Tom Kelsey, Director of Toronto North Branch of Legal Aid Ontario will look favourably on the likely request by the adoptive parents for a legal aid certificate.

[9] I understand from Ms. McCarty that the Children’s Lawyer is showing flexibility in response to requests such as is made by R.A.R. The outstanding procedural issues mean that the OCL involvement depends on whether the case is characterized as what was then known as a Child and Family Services Act case or a Superior Court application. Having said that, Ms. McCarty pointed out s. 211 of the Child, Youth and Family Services Act, 2017 which enables the Children’s Lawyer to be involved in openness cases without court order. I am optimistic that if the adoptive parents participate in this case, that the Children’s Lawyer will be part of the process.

[10] I also understand from Ms. Clarke that she is involved in five “Motherisk” cases. Four of them derive from orders of the Ontario Court of Justice from which there was no appeal and hence the issue of the jurisdiction does not arise. She acts for a parent in an application in Kitchener and the next step is whether the OCL is appointed. Three of her five cases are at the preliminary stage and court proceedings have not been initiated.

[11] I understand that, at the request of Ms. Clarke, Chief Counsel/Director, Legal Services at CAST took the initiative to notify the adoptive parents. By taking that initiative, it has avoided a delay of determining whether the court would make such an order and if so, having it implemented.

[12] I understand from Ms. Clarke and Ms. McCarty that as a result of the Motherisk Review report, some of these issues in other cases have been resolved through mediation and that there is at least one mediator in Ottawa who specializes in openness issues.

[13] All in all, I was impressed that all counsel appear to share the same goal of finding a solution to the issues raised by R.A.R. that would avoid the necessity of have the court make an order dealing with the complex procedural issues that arise in this case.

[14] As indicated below, I am adjourning to a date when I am available that is approximately 7 weeks from now. I am optimistic that that will give Ms. Pringle and the adoptive parents time to consider the options. However, I do not want my availability to drive the litigation agenda. Like all counsel and certainly like R.A.R., a creative “out of the box” approach is preferable.

[15] I expect Ms. Clarke will provide a copy of this endorsement to Ms. Pringle.

Order

ORDER TO GO AS FOLLOWS:

[16] The procedural motion is adjourned to December 20, 2018 at 10:00 a.m. before me for approximately 3 hours.

[17] By December 13, 2018, counsel shall send in a collective confirmation form indicating whether the matter will proceed on December 20. If they agree to postpone it, counsel will provide suggested dates. I will return an endorsement scheduling the new date and counsel need not attend on December 20.

Kiteley J. Date: October 2018