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.
COURT FILE NO.: FC-16-1259-4
DATE: 2020/02/27
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF K.A. (DOB: […], 2018), E.U. (DOB: […], 2016)
BETWEEN:
Children’s Aid Society of Ottawa
Applicant
– and –
E.U. (Mother)
A.A. (Father in Default)
Respondents
Danielle Marchand, for the Applicant
Dominique Smith, for the Respondent Mother
HEARD: February 27, 2020
endorsement
engelking J.
[1] This matter was scheduled for a care and custody hearing with respect to two children, E.U. and K.A., who have been subject to a temporary without prejudice care and custody order of Justice Blishen since January 29, 2019.
[2] The hearing was originally scheduled for January 21, 2020 but was adjourned at the request of the mother to today’s date. The mother is again seeking an adjournment of the care and custody hearing, this time to permit her to redo a treatment program at the Wanaki Centre at Kitigan Zibi. She advises that the next available English language program is from April 6 to May 1, 2020, which would permit her to reschedule the motion to later in May 2020.
[3] The Society does not oppose the adjournment of the motion but submits that the order of Justice Blishen dated January 29, 2019 should be converted to a with prejudice order pending the adjournment.
[4] The mother seeks for the order to remain a without prejudice order pending the return of the motion. As Justice Sherr has noted in Children’s Aid Society of Toronto v. W.I. and D.T., 2014 ONCJ 62, [2014] O.J. No. 620, at paragraph. 23: “The distinction is important because different legal tests apply to the two types of motions.” If the order remains a without prejudice one, the test the mother will have to meet on the motion is contained in section 94(4) of the Child Youth and Family Services Act, (S.O. 2017, C. 14, Schedule 1). If it is converted into a with prejudice order, the mother’s motion will need to be argued pursuant to section 94(9) of the Act and she would have to demonstrate that there has been a material change in circumstances since the making of the with prejudice order.
[5] The Society relies on the W.I. and D.T. case to support the proposition that without prejudice orders have a “shelf life”, which in other cases have been noted to be somewhere between three and eight months. However, Justice Sherr found in that case at paragraph 26 that “the facts of each case need to be carefully examined to determine if the “shelf life” of a without prejudice order has run out.” Justice Sherr found that it had not in W.I. and D.T., but the Society submits that it can be distinguished on the basis that there were only four justifiable adjournments in it and the care and custody was held within five months of the application having been initiated.
[6] In the case at bar, it has been more than one year since the without prejudice order was made and there have been four settlement conferences conducted in the interim, one in each of April, July, November and December of 2019. Indeed, the first request for a care and custody hearing was only made on December 10, 2019.
[7] The mother submits that, while it has been a year since the order was made, prior to some developments in October and November of 2019 which were significant, the parties were on a particular path for which a care and custody hearing was not necessary. When that path changed, a care and custody hearing was sought.
[8] These are the particular facts of this case which she submits need to be carefully examined. She submits further that because there are already trial dates scheduled in October, whether the temporary order remains on a without prejudice basis or not, the trajectory of the case will not be affected. She also submits that her request for the order to remain on a without prejudice basis is not for “indefinitely”, as was referenced in the case of Children’s Aid Society of Toronto v. K.N., 2008 ONCJ 340, [2008] O.J. No. 3074 (Ont. C.J.), referred to by Sherr J. in W.I. Rather, it is only until the motion can be heard in May.
[9] Both of the CAS and the mother agree that the court has a discretionary power to determine this issue.
[10] Although the without prejudice order has been in place for one year, and although a number of settlement conferences have already been held, I exercise my discretion in favour of the order remaining a without prejudice order to the return of the motion for the following reasons:
[11] First, I have examined the circumstances of this case and do find that until the intervening events of the father of the children becoming involved in October 2019 and the mother relapsing and being charged with assault on November 19, 2019, the case was on a particular path, albeit a somewhat slow and cautious one.
[12] Second, I concur with Justice Sherr when he says at paragraph 26 of W.I. that: “The court does not and should not lightly eliminate the subsection 51(2) [now subsection 94(4)] rights of the person who had charge of the child.” In this case, the mother had never had a section 94(4) hearing, and she only sought one when, in her view, it became necessary due to the turn the file had taken.
[13] Third, and most significantly, I find that the remedial nature of CYFSA as it pertains to First Nations, Inuit and Métis children and families requires me to permit the mother to argue her motion pursuant to the subsection 94(4) test. The preamble of the legislation provides that the Government of Ontario believes that:
First Nations, Inuit and Métis Children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as member of their families, communities and Nations.
and that:
Honouring the connection between First Nations, Inuit and Métis Children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.
[14] The CYFSA is replete with special considerations for First Nations, Inuit and Métis Children and families and I can only view that maintaining the without prejudice nature of Justice Blishen’s order in this case would be in keeping with the courts obligation to ensure those special considerations are applied. As on aside, though it is not necessary to rely upon it, I am also of the view that it would be consistent with the Federal Act respecting First Nations, Inuit and Métis Children, Youth and Families. It is, moreover, consistent with the admonitions of the Ontario Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at paragraph 80 that: “The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.”
[15] The temporary order of Justice Blishen dated January 29, 2019 shall continue on a without prejudice basis until the return of the motion, which will be peremptory on the mother.
[16] The care and custody motion is adjourned to May 12, 2020 at 2:00 p.m.
Engelking J.
Released: February 27, 2020
COURT FILE NO.: FC-16-1259-4
DATE: 2020/02/27
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF K.A. (DOB: […], 2018), E.U. (DOB: […], 2016)
BETWEEN:
Children’s Aid Society of Ottawa
Applicant
– and –
E.U. (Mother)
A.A. (Father in Default)
Respondents
Endorsement
Engelking J.
Released: February 27, 2020