CAS (Ottawa) v. C.R., 2018 ONSC 911

COURT FILE NO.: FC-15-472

DATE: 2018/02/06

SUPERIOR COURT OF JUSTICE OF ONTARIO

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of C.R. and A.F.

RE: The Children’s Aid Society of Ottawa, Applicant

AND

C.R., Respondent, Father

AND

A.F., Respondent, Mother

BEFORE: Madam Justice D. Summers

COUNSEL: Tara McDougall, for The Children’s Aid Society of Ottawa, Applicant

Emmanuel Gibson, for the Respondent, C.R.

HEARD: December 15, 2017

ENDORSEMENT

Nature of the Proceedings

1This motion is brought by the Children’s Aid Society (the Society) to add the Respondent (father), Mr. R., to the parenting capacity assessment that the Respondent (mother), Ms. F., and children were ordered to undergo as a condition of the 12 month supervision order granted at trial by Justice Roger. The assessment ordered pursuant to s. 54(1) of the Child and Family Services Act (CFSA) was already underway when this motion was argued. The mother, Ms. F., was served but did not appear.

Background

2The Respondents, Mr. R. and Ms. F. are the parents of M. (D.O.B. XX, 2010) and C. (D.O.B. XX, 2014). After a 28 day trial, Justice Roger found that the children were in need of protection under sections 37(2)(b)(i) and (ii) of the CFSA but declined to order crown wardship as sought by the Society. Instead, the children were placed in the care and custody of the mother under a twelve month supervision order subject to multiple terms. The father was granted supervised access for one hour every two weeks subject to terms. Justice Roger’s Order is dated July 14, 2017.

3The terms ordered by Justice Roger relevant to this motion are:

(i) Ms. F. shall not reside with Mr. R. and shall not have any contact or communication with him except for what may be permitted by the Society or court order ;

(ii) Ms. F. shall not allow Mr. R. to have any contact or communication with M. and C. except as permitted by the Society or by court order;

(iii) Ms. F. and the children shall participate in a parenting capacity assessment under s. 54 of the CFSA to be conducted by the Family Court Clinic within the first five months of the supervision order to identify any concerns and the steps to be taken;

(iv) Mr. R. shall not reside with Ms. F. and shall not have any contact or communication with Ms. F. except for what is permitted by the Society or by court order; and

(v) Mr. R. shall have no unsupervised contact with M. and C.

The Issue

4Can Mr. R. be ordered to participate in the parenting capacity assessment that Justice Roger ordered that Ms. F. and the children undergo within the first five months of a twelve month supervision order granted at trial.

The Statute

5Section 54(1) of the CFSA provides:

Order for assessment

54 (1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2): [Emphasis added ]

1. The child.

2. A parent of the child.

3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child. 2006, c. 5, s. 10 (1).

Position of the Parties

6The Society conceded at the outset that “technically” there is no proceeding before the court as required by s. 54(1) of the CFSA. The Society’s position turned on the forward looking nature of Justice Roger’s Order insofar as it reached into the midst of the twelve month supervision period to require Ms. F. and the children to undergo an early parenting assessment. This prospective aspect of the Order, the Society claims, is atypical and opens the door to the court adding Mr. R. to the assessment.

7The Society advanced two arguments. One was that it would be practical and equitable to add Mr. R. to the assessment. This argument needs little elaboration. Having both parents and the children assessed at the same time would be pragmatic and reasonable, if possible.

8The second argument made by the Society rests on the intention of the parties to resume their relationship and parent the children together as soon as the conditions restricting contact between them have expired. The Society contends this is a change from the position taken at trial, a change that allows the court to vary Justice Roger’s Order to add Mr. R. to the parenting assessment. It is argued that he should be assessed to ensure that there is evidence of his parenting capacity available on the status review application.

9Mr. R.’s primary defence to the motion is this. Justice Roger did not include him in the assessment order made at trial and the language of the Act prohibits the court from making that order now on this motion. In the absence of a proceeding before the court under Part III of the CFSA, there is no jurisdiction to order an assessment. Mr. R. characterized the Society’s efforts at this stage to add him to the assessment ordered by Justice Roger as an appeal masquerading as a motion.

Analysis

10The Society’s argument that adding Mr. R. to the parenting assessment would be practical and equitable in the circumstances cannot succeed. Regardless how pragmatic and efficient it may be to have both parents and the children assessed at the same time, I was not directed to any authority that would allow me to make such an order on those grounds.

11The Society’s argues that the parties stated intention to reunite and parent together as soon as possible constitutes a change in circumstance. This argument is at least partially negated by Justice Roger’s reasons where he states that Mr. R. was clear that he intended to reunite the family when it was possible to do so. There can be no doubt that Mr. R.’s ultimate goal was known to the court at trial and cannot now be relied on as a change in circumstance to vary Justice Roger’s Order.

12The plan advanced by the Ms. F. at trial was to parent the children on her own. However, she has now also signaled her desire to resume her relationship with Mr. R. once the conditions apart have expired. This circumstance represents a change. Justice Roger clearly stated that his Order was intended to give Ms. F. and the children a clean break from Mr. R. - a chance to better their lives and move forward without him. He said, “Quite, simply, if Mr. R. was to have any continued involvement with Ms. F. and the Children, in any unsupervised setting, I would have ordered Crown wardship.”

13If continuing her relationship with Mr. R. remains Ms. F.’s goal, it can be addressed on the Status Review Application. In the meantime, I was not directed to any authority that would allow me to vary Justice Roger’s Order to add Mr. R. to the assessment on the basis of a change in circumstance.

14I find that s. 54(1) of the CFSA disposes of the motion brought by the Society. Justice Roger’s Order was final and a Status Review Application has not been commenced. This motion is not brought within a proceeding under Part III of the Act, therefore, this court does not have jurisdiction to order the relief requested by the Society. Mr. R. cannot be compelled to join the assessment ordered by Justice Roger for the mother and the children whether it be a variation order or a fresh order.

15For these reasons, the Society’s motion is dismissed.

Costs

16Mr. R. asked for costs arguing that he is presumptively entitled to costs under Rule 24(1) of the Family Law Rules, if he is successful on the motion. He also alleged bad faith claiming that the Society knew they could not force him to participate in the assessment ordered by Justice Roger but nevertheless tried to orchestrate his consent to join in. His counsel made a very modest request for $750.00.

17Mr. R. is not entitled to the benefit of the presumption under Rule 24(1). Subsection (2) of the rule, provides child protection proceedings with an exemption from the presumption that the successful party is entitled to costs. The court, however, retains discretion under subsection (3) to award costs against the agency whether it is successful or not.

18The Society relies on the exemption and Justice Doyle’s decision in Children’s Aid Society of Ottawa v. J.L., 2015 ONSC 7999 where she declined to award costs against the agency. Justice Doyle reviewed the case law and the principles to be considered when the issue is costs against the Society as set out in Children’s Aid Society of Halton Region v. A.R., 2011 ONCJ 681:

a) Costs against a Society should only be awarded in exceptional circumstances;

b) Exceptional circumstances include conduct by the Society that is seen as patently unfair by the public at large;

c) Societies are not ordinary litigants and should not be penalized for attempting to fulfill their mandates unless they have acted in some indefensible manner;

d) A society should not be penalized for an error in judgment, but an error in judgment can only truly arise where the society has considered all courses of action reasonably available at the time;

e) A society must be even-handed and reassess its position as the investigation unfolds and more information becomes known;

f) Costs should be awarded if the Society would be perceived by ordinary persons as having acted unfairly;

g) Costs may be awarded against a Society even absent bad faith; and

h) The possibility of an award of costs is the only manner in which a litigant, including a Society can be held accountable for its actions.

19Considering the Order made by Justice Roger to require an early assessment of the mother and children, the factual findings made about Mr. R. and his statement that he would have ordered crown wardship if there was to be continued involvement between the parents and the children in an unsupervised setting, and Ms. F.’s recent statement that she wants to resume her relationship with Mr. R., I do not find that the Society’s efforts to include Mr. R. in the assessment would be perceived by an ordinary person as unfair. Nor do I regard the circumstances of this case as exceptional or consider the conduct of the Society as appearing patently unfair to the public at large. At best, the Society’s decision to proceed with the motion could be seen as an error in judgment but done in pursuit of its mandate to protect and promote the best interests and well-being of children.

20I decline to order costs against the Society.

Madam Justice D. Summers

Released: February 6, 2018

COURT FILE NO.: FC-15-472

DATE: 2018/02/06

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of C.R. and A.F.