Court File and Parties
COURT FILE NO.: FC-17-1516
DATE: 2019/01/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: D.W., Applicant
-and-
A.H., Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Karla Policelli, for the Applicant Respondent, Self-Represented (Kristen Robins, Friend of the Court on behalf of Respondent) Danielle Marchand, for CAS Ottawa
HEARD: January 21, 2019
ENDORSEMENT
[1] The issue in this motion is whether this family court matter should be stayed given the child protection proceedings commenced by the CAS of Ottawa on January 11, 2019. The child protection proceedings involve the same two children that are the subject of the custody and access dispute between the parties, which is set to proceed to a three week trial starting January 21, 2019.
[2] The Applicant father wants the family law proceedings to continue and for the trial to proceed during the January 2019 trial list. The Respondent mother wants the family law proceeding to be stayed pending the completion of the child protection proceedings or in the alternative to be stayed to the May 2019 trial sittings. Counsel for the CAS of Ottawa made submissions before me. The CAS takes the position that the family proceedings should be stayed.
[3] The child protection proceedings arise due to disclosures made by the youngest child, now age 3, of abuse by the mother’s new partner and concerns regarding the mother’s ability to protect the children while in her care.
[4] The custody and access issues in this proceedings are pursuant to the Divorce Act[^1]. By order dated September 7, 2018, the corollary relief issues were split from the divorce. The divorce order was granted dated October 1, 2018.
[5] The parties are in agreement that the only other issues in this proceedings, being child support and related relief, should not proceed prior to the determination of the custody and access issues.
[6] Section 103 of the CYFSA[^2] does not automatically stay a proceeding for custody or access under the Divorce Act – it only operates to stay custody and access proceedings under the CLRA[^3], except by leave of the court.
[7] On January 14, 2019, Justice Minnema made an endorsement at the last minute settlement conference that states: “Per s.103 of the CYFSA, this proceeding is stayed. The Applicant indicated that he will be bringing a motion for leave to continue; the Respondent indicates that she may oppose it.”
[8] It is arguable that Justice Minnema’s endorsement was not in itself an order granting a stay, but simply a reflection of the operation of s.103 given that it appears that the issue of this proceeding being under the Divorce Act, rather than the CLRA, was not raised before him - everyone simply assumed that the family proceeding was automatically stayed. This is my view of Justice Minnema’s endorsement.
[9] I still, however, have jurisdiction to grant a stay of the family proceedings under the Divorce Act pursuant to rule 2 of the Family Law Rules[^4] and the court’s inherent jurisdiction to govern its own proceedings. The considerations as to whether to lift a stay of a CLRA proceedings under s.103 of the CYFSA or to impose a stay of Divorce Act proceedings are substantially the same.
[10] In making my decision, I have reviewed the decision of D (J) v. R (N), 2009 ONCJ 523 and the factors considered in that decision in determining whether to lift a stay of a CLRA proceeding under s.57.2 of the CFSA[^5]. Although the CYFSA has replaced the CFSA, s.103 under the CYFSA has the same wording as s.57.2 and the same considerations should apply. The factors considered in D (J) v. R (N) are not an exhaustive list. The paramount directive under the Family Law Rules is to deal with cases justly and I have applied this directive.
[11] The central objective in these court proceedings is to achieve a just and expedient resolution of what is in the children’s best interests. I have considered the factors listed in D (J) v. R (N) and the submissions of counsel for both parties and for the CAS of Ottawa. I will expressly address some of these points below.
[12] This matter was scheduled to proceed to trial commencing January 21, 2019. This trial had been added to the January 2019 trial list on an expedited basis, due to the best interests of the children, and in particular the allegations between the parties and the escalation of the issues. But for the intervening child protection proceedings, initiated on January 11, 2019, this trial would have proceeded. The Applicant father is ready to proceed to trial. The Respondent mother states that she is not ready for trial due to a number of factors that do not relate to the child protection proceedings. The mother should have been ready to proceed to trial. I do not accept the mother stating she is not ready for trial due to factors not related to the child protection proceedings as a basis that supports her position that this proceeding should be stayed.
[13] The mother also argues that she is not ready to proceed to trial because she is seeking counsel to act on her behalf in the family law proceedings. She does have counsel in the CYFSA proceedings due to being granted a legal aid certificate in that proceeding. In these family law proceedings, the mother has been stating for some time that she is attempting to retain counsel. She has had a number of months to secure counsel but has not done so. In the absence of the child protection proceedings, I would not delay this proceeding due to the mother asking for more time to retain counsel. The institution of the child protection proceedings, however, raise new serious issues that the mother believes will result in her getting a legal aid certificate to retain another lawyer in these proceedings. I place some weight on this submission, although it is limited due to the delays to date in retaining counsel. I reiterate the importance of parties taking immediate and urgent steps to retain counsel if they wish to do so as proceedings should not normally be delayed because they have failed to take such steps to date.
[14] The CAS takes the position that the family proceedings should be stayed, primarily because information that should be before the court for the determination of the children’s best interests is not yet available (as the CAS has not completed its investigation) and that the best place to address the protection concerns is under the CYFSA, given the resources and mandate of the CAS.
[15] The CAS investigation was initiated in November of 2018 with new disclosures in early January 2019. This has involved a police investigation and there have been criminal charges laid against the mother’s partner. The CAS has not made a final determination of their plan or under what sections of the CYFSA they will proceed – a verification conference must first take place. Counsel also advised that although the Society normally does not get involved in custody and access issues, such that there is a risk that the Society will withdraw if the protection issues regarding the mother’s partner are addressed, this case is different as there are other protection issues, or potential issues. These include the mother’s ability to protect children while in her care and may also include the high conflict and various allegations made between the parties. Given these circumstances, it is very possible the Society will continue to be engaged on issues that go beyond the allegations made against the mother’s partner.
[16] This matter does involve significant allegations that raise child protection issues and I agree that the best place to resolve those issues, at this time, is under the CYFSA with the involvement of the CAS of Ottawa, who can bring resources to the fact finding process as well as their mandate under the CYFSA.
[17] Given that we are in a Unified Family Court jurisdiction, both the CYFSA and Divorce Act proceedings are before the same court. It may be appropriate for the custody and access issues under the Divorce Act to be joined with the CYFSA proceedings, or heard together – but I leave that issue to be determined at a later date.
[18] There is extensive conflicting evidence in this matter. Each party presents a very different view of events and the issues, particularly regarding the best interests of the children. Within the family law proceedings, it is was obvious that the evidence of each side needed to be tested at trial. That trial was expedited in the best interests of the children, in particular due to significant concerns raised by the allegations and escalation of the issues. Optimally, the allegations raised in both matters, which underlie the child protection concerns, will receive a full hearing at trial, with viva voce evidence tested by cross examination, at the earliest opportunity. This may mean that a trial in the CYFSA proceedings should be expedited. I am not deciding this issue. That issue will need to be decided within the CYFSA proceedings.
[19] The Respondent mother is pregnant. She advises that she is due April 22, 2019 but expects to have a caesarian section at an earlier date. When asked how this would impact her ability to proceed to trial in May of 2019, which she was asking the court to order as an alternative to a stay, she advised that the expected birth would not interfere with her ability to attend trial in May of 2019. She stated she had made arrangements with her mother to assist during the trial. I note this because, given the history of this matter, I am very much concerned with more delays in the future. The mother has specifically stated that the upcoming birth of her child will not cause further delays, and I have relied on this in arriving at my decision.
[20] In summary, although I am of the view that the issues between the parties need to be determined at a hearing, with evidence tested by cross examination, at the earliest opportunity, this is not possible at this time due to the intervening child protection proceedings and in particular the ongoing investigation by the CAS of Ottawa. The information that will arise from the child protection investigation is needed for the determination of the best interests of the children. For this reason, I agree that it is premature for this matter to proceed to trial at this time, in the January 2019 trial sittings.
[21] Given this delay, the question is whether the matter should best proceed under the CYFSA first (i.e. for the family proceeding be stayed), or whether both proceedings should be permitted to continue at the same time. To avoid duplicity of proceedings, and given the primacy of the child protection concerns, as well as the resources and mandate that the CAS of Ottawa can provide, I find that the CYFSA proceedings should be determined first.
[22] Accordingly, I order that the family proceedings are stayed pending the completion of the child protection proceedings.
[23] In ordering this stay, I want to be clear that I am specifically contemplating that it may be appropriate for the child protection proceedings to be expedited, for the stay of the custody and access issues under the Divorce Act to be lifted and joined or heard at the same time as the child protection proceedings, or for the stay of the custody and access issues under the Divorce Act to be lifted at a subsequent date depending on how the child protection issues progress. Those issues should be determined by a subsequent judge hearing this matter or within the child protection proceedings once further information is available.
[24] Even if I am wrong in my characterization of Justice Minnema’s endorsement, I would apply the same reasoning to dismiss the Applicant’s motion to lift the stay of the custody and access proceedings at this time, subject to same comments set out in the preceding paragraph.
[25] On the consent of the parties and the CAS of Ottawa, disclosure of the updated CAS records (since January 2, 2019) will be provided to the parties on or before January 25, 2019.
Justice P. MacEachern
Released: January 22, 2019
COURT FILE NO.: FC-17-1516
DATE: 2019/01/22
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: D.W., Applicant
-and-
A.H., Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Karla Policelli, for the Applicant
Respondent, Self-Represented (Kristen Robins, Friend of the Court on behalf of Respondent)
Danielle Marchand, for CAS Ottawa
ENDORSEMENT
Justice P. MacEachern
Released: January 22, 2019
[^1]: R.S.C. 1985, c.3 (2nd Supp), as am [^2]: S.O. 2017, Chapter 14 Schedule 1 [^3]: R.S.O. 1990, c.C.12, as am [^4]: O.Reg. 114/99 as am [^5]: R.S.O. 1990. c.C.11, as am