COURT FILE NO.: FS-18-19048
DATE: 20190131
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Windsor-Essex Children’s Aid Society
Applicant (Respondent)
– and –
M.D.
Respondent (Appellant)
and C.G.
Respondent
Karen Robertson, for the Respondent
Paul Rowley, for the Appellant M.D.
No one appearing for the Respondent C.G.
HEARD: January 10, 2019
RESTRICTION ON PUBLICATION
Pursuant to section 87(8) of the Child, Youth and Family Services Act no person shall publish or make public information that would identify the child who is the subject of a child protection proceeding or the child’s parent or foster parent or a member of the child’s family. This judgment does comply with this restriction so it can be published.
On appeal from the judgment of the Honourable Justice B. Tobin of the Ontario Court of Justice dated June 27, 2018.
REASONS FOR DECISION ON APPEAL
carey j.
[1] The appellant, M.D. has framed the issues on this appeal as both one of statutory interpretation of the rules relating to amended applications in child welfare proceedings and the implications of the failure to file an amended answer, as well as one of procedural fairness.
[2] The responding party, Windsor-Essex Children’s Aid Society (“WECAS” or “Society”), argues there was no procedural unfairness and that M.D.’s actions and inactions in relation to his child showed both a disinterest in being a part of this child’s future life and was informed by the knowledge of the steps the Society was undertaking to secure Crown wardship (now referred to as extended care).
[3] The appellant has not satisfied me that the learned trial judge erred in proceeding with an unopposed trial in this case. The appeal is dismissed for the brief reasons set out herein.
Background
[4] The timeline for this matter, beginning with the child’s apprehension shortly after birth, is set out in the factum of the respondent, WECAS, at pages 1-4. The parents filed a joint answer to the application by WECAS which was initially for Society wardship. The joint answer did not contest the finding of protection but sought a temporary and final order placing the child in the care of the respondent mother subject to supervision. In the alternative, it sought orders placing the child in the joint care of the respondent mother and grandmother. In the final alternative, the joint answer sought an order placing the child in the care of the grandmother subject to supervision. As well, there were orders sought for access to the child that did not specify who was to be granted access.
[5] The plan put forward by the mother and grandmother was withdrawn and the mother stopped taking part in the action. Her whereabouts became unknown. The appellant father, while entitled to access, did not exercise any access and only saw the child during the brief time of his hospitalization with the mother after birth.
[6] These developments resulted in the Society amending their application to seek what was then known as Crown wardship without access to either parent. The mother was substitutionally served and the appellant father was personally served with the amended application. The appellant father did not file an answer to the amended application nor did he appear again in court regarding this matter, although a pre-trial was set with his knowledge at the Leamington courthouse. The Society took the position that, in the circumstances, it was appropriate to set a date for an unopposed hearing. Following the unopposed trial, the learned trial judge granted the order appealed from after reviewing the history of the proceedings and concluding there was overwhelming evidence to support the Society’s position.
Law and Analysis
[7] Rule 11 of the Family Law Rules, O. Reg. 114/99, reads as follows:
AMENDING APPLICATION WITHOUT COURT’S PERMISSION
11(1) An applicant may amend the application without the court’s permission as follows:
If no answer has been filed, by serving and filing an amended application in the manner set out in rule 8 (starting a case).
If an answer has been filed, by serving and filing an amended application in the manner set out in rule 8 and also filing the consent of all parties to the amendment.
AMENDING ANSWER WITHOUT COURT’S PERMISSION
(2) A respondent may amend the answer without the court’s permission as follows:
If the application has been amended, by serving and filing an amended answer within 14 days after being served with the amended application.
If the application has not been amended, by serving and filling an amended answer and also filing the consent of all parties to the amendment.
CHILD PROTECTION, AMENDMENTS WITHOUT COURT’S
PERMISSION
(2.1) In a child protection case, if a significant change relating to the child happens after the original document is filed,
(a) the applicant may serve and file an amended application, an amended plan of care or both; and
(b) the respondent may serve and file an amended answer and plan of care.
[8] Counsel for the appellant submits that this litigation is essentially a “test case” to clarify what is argued to be a gap in the Family Law Rules. He says while r. 10(1) sets out the consequences of failing to respond to an application; that is, no further notice of steps in the case – there is no corresponding section in the Rules that lists any consequences for not answering an amended application. As filing an amended answer is permitted but not mandatory, the appellant says reference to r. 26.05(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is appropriate: see r. 1(7), Family Law Rules. If applied, the appellant would be deemed to rely on his original answer. Thus, in the absence of his original answer being struck, he was entitled to rely on it and to notice of a trial date and trial. He says he was entitled to be heard even if his case was weak.
[9] The respondent Society argues that it makes sense that the language in r. 11(2.1)(b) is permissive due to the various degrees of seriousness of amendments to applications. They can range from renaming parties, correcting dates or addresses, all the way up to fundamentally changing the request as was the case here. They say by the time the unopposed hearing date was set, the change in circumstances, as set out in the judge’s reasons, resulted in the original answer being irrelevant. As the Society was seeking wardship without access, it was incumbent on the appellant to file his argument as to why access was in the child’s best interests, and he did not. The appellant father says that if that were the case, the appropriate step was to proceed to a summary judgment motion.
[10] In my view, there are three overriding decisive principles in this case. First, that where there is an issue of procedural fairness it is secondary to the best interests of the child. Second, that the degree of deference owed to the trial judge is especially high in child protection cases: see Children’s Aid Society of Toronto v. V.L., ONCA 890, 249 O.A.C. 388, at paras. 14-17. Third, that claims for a lack of procedural fairness are still governed by common law principles, including the withholding of relief when the procedural error is purely technical and occasions no substantial wrong or miscarriage of justice: see Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 43.
[11] I am satisfied on the record before me that it was abundantly clear as stated by the trial judge that this child required the stability and permanence of the order sought. The child’s biological parents had essentially abandoned their interests in his future. Even if I had been convinced there was a lack of procedural fairness here, which I am not, I would not have ordered a new trial which would only have delayed the inevitable. I agree with the Society that it was incumbent on the appellant in the very specific circumstances of this appeal to present an affidavit setting out, at the very least, his reasons why access to his child would be appropriate given the principles of the Act. He failed to do so, nor did he suggest any plan that would accommodate such a proposal. There was nothing preventing him from doing that, and in my view the facts of this case put the onus on him to do so.
[12] Given the disappearance of the child’s mother, the withdrawal of the grandmother’s involvement, and the filing of the amended application seeking Crown wardship without access, for all intents and purposes the joint answer was no answer at all. It did not specifically ask for access for the appellant.
[13] It would have been technically preferable to have brought a summary judgment motion, but it would have delayed matters and would not have served the best interests of the child: see Children’s Aid Society of Toronto v. D.P. (2005), 2005 CanLII 34560 (ON CA), 202 O.A.C. 7 (C.A.), at para. 9. Any procedural error was purely technical and occasioned no substantial wrong or miscarriage of justice, and an order for a new trial would manifestly not be in the best interests of the child.
[14] The appeal is dismissed without costs.
“original signed and released by Carey J.”
Thomas J. Carey
Justice
Released: January 31, 2019
COURT FILE NO.: FS-18-19048
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Windsor-Essex Children’s Aid Society
Applicant (Respondent)
– and –
M.D. and C.G.
Respondents (Appellants)
REASONS FOR DECISION ON APPEAL
Carey J.
Released: January 31, 2019