COURT FILE NO.: C-785/16

DATE: 2019-11-22

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Catholic Children’s Aid Society of Hamilton, Applicant

AND:

I.B. and K.K., Respondents

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Mr. I. Kamal, Counsel, for the Applicant Ms. A. Williams, Counsel, for the Respondent Mother, I.B.

HEARD: November 22, 2019

ENDORSEMENT

[1] On November 14, 2019 the mother brought this motion requesting the involvement of the Office of the Children’s Lawyer on behalf of the child H.R.M. who recently turned 7.

[2] The context and timing are important.

[3] On October 21, 2019 the court set timelines in relation to a summary judgment motion brought by the CCAS. The motion is to be heard during the sittings of February 3, 2020.

[4] The Society and the mother have known for quite some time that the Society is seeking Extended Society Care with no access.

[5] The Society is opposed to the request on the basis that the OCL’s involvement is unnecessary. In the alternative, the Society would not oppose the request if there could be a guarantee that the request for OCL involvement would not delay the scheduled summary judgment motion.

[6] On the issue of potential delay, I’m not sure that we could guard against it.

a. The mother says she is prepared to undertake that she would not use the OCL’s involvement as the basis for any delay.

b. The Society would want a term making the scheduled summary judgment date peremptory on all parties, including the OCL.

c. However, the court cannot on the one hand request the OCL to become involved, and on the other hand arbitrarily impose a time limit on the OCL, without allowing the OCL to participate in the discussion, and identify the time the OCL might require to do its job.

d. So I can make an endorsement that the OCL’s involvement is not to delay the summary judgment motion, but I don’t think we can have any confidence that the potential for delay could be avoided.

[7] The inability to absolutely preclude potential delay is a relevant consideration, but in this case I do not find it to be a determinative consideration.

[8] Counsel agree that the OCL’s policy is generally not to appoint counsel for children under the age of 8, unless there are special circumstances.

[9] In this case the child is not only chronologically under the age of 8, but developmentally the child is even less mature. The mother has not identified any specific purpose or objective in appointing counsel for a very young child.

[10] The Society has filed materials indicating that the child’s views, to the extent that they can be ascertained, are not disputed.

[11] From a practical point of view, the mother’s request – very late in the process – for an OCL appears to be based on the hope that potentially some helpful information might arise, even though the mother is not specifically identifying what information or input she feels would arise. I note that the mother didn’t even file an affidavit on this motion. Staff from her lawyer’s office submitted a brief affidavit explaining that her counsel feels an OCL might be of assistance.

[12] The OCL’s involvement is never intended to be a fishing expedition.

[13] Regrettably I must decline the mother’s proposal, not only because it might lead to delay, but more to the point because the mother has not provided any evidence that the OCL’s involvement would assist the court or the child in any specific way.

[14] Motion dismissed.

Pazaratz J.

Date: November 22, 2019