Court File and Parties

COURT FILE NO.: C-785/16 DATE: 2020-05-22

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., R.C., 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, I.B. Mr. M. Vamos, Counsel, for the Respondent, R.C. K.K. (Present with L.B.), Self-Represented Respondent

HEARD: May 22, 2020 via Zoom Video Conference

Endorsement

[1] This was a motion brought by the Catholic Children’s Aid Society requesting that it be permitted to proceed with a Summary Judgment Motion. The discretionary relief was referred to me as Triage judge, in light of the evolving but continuing limitations on the services the court is able to provide during the COVID-19 situation.

[2] I received the following materials from the Society:

a. Notice of Motion dated May 19, 2020. b. Affidavit of Society worker Alberta Abbiw dated May 19, 2020. c. Statement of Law with supporting caselaw.

[3] I did not receive any responding material from the Respondents. Ms. Williams and Mr. Vamos made submissions based upon the Society’s materials and based upon the Protocols and Notices to the Profession issued by the court during COVID-19.

[4] We proceeded by way of Zoom teleconference. Early in the conference I had to eject one of the fathers R.C. because he was disruptive and ignored repeated warnings that he would not be permitted to interrupt other speakers. His counsel remained and actively participated in the motion.

[5] This is a very complicated protection file, but the relevant considerations for today’s motion include the following:

a. The Society seeks extended society care with no access in relation to three children now ages 7, 2 and 20 months. b. There is a lengthy history of child protection proceedings in relation to these children and these Respondents. c. On August 28, 2019 the Society commenced the current Status Review application seeking that all three children be placed in extended society care. d. In October 2019 the summary judgment motion was scheduled to be heard on February 18, 2020. e. On February 18, 2020 Justice Brown granted an extension to March 4, 2020 to allow the fathers R.C. and K.K. to serve and file their Answers and Plans of Care, and any materials to be relied upon for the summary judgment motion. Up to that point, neither of the fathers had filed any materials despite having been served in August 2019. f. The matter was adjourned to the March 30, 2020 sittings peremptory on the Respondents. g. However the motion was not heard on the March 30, 2020 sittings as a result of the suspension of court operations due to the COVID-19 pandemic. h. For the most part the summary judgment motion is ready to proceed. All parties have filed their materials. i. However, K.K. is self-represented. He does not feel he is ready to proceed with the summary judgment motion because he wants to retain a lawyer to prepare better affidavit materials on his behalf, and also to represent him at the hearing of the motion. He suggested he might be ready to proceed by about mid-August 2020.

[6] Ms. Williams suggested the Superior Court Protocols do not allow for summary judgment motions of this magnitude to be heard at this time. I disagree. The succession of Notices to the Profession has clearly identified that the judicial system is making continuing efforts to respond to the community’s needs despite the unforeseen complications and restrictions created by COVID-19. Nobody knows how long it will be until we can physically return to the courtroom. And there appears to be broad consensus that even after we resume courthouse operations, we are going to be subject to a new world of physical restrictions and safeguards which will inevitably slow our progress.

[7] The current protocols provide for long motions – including summary judgment motions – to be presented for consideration by a Triage judge. Given the subject matter, and the urgency of dealing with children’s situations in a timely manner, I would think that child protection matters are likely the most appropriate matters to proceed, if they can be accommodated by the court system.

[8] I agree with the Society’s submission that the facts of this case – and the reality of these children’s lives – cries out for timely resolution:

a. These are young children – particularly the youngest two – in the formative years of their development. b. The seven year old has been in care for 30 months. A CAAP assessment has identified that he has special and complex needs. He is developmentally delayed. c. The younger two have been in care for 18 months. d. They have been in care even beyond the extensions permitted under the legislation. e. The children have experienced a great deal of instability and uncertainty in their short lives. They require a determination as to permanency.

[9] I agree with the Society that the summary judgment motion should proceed.

[10] With respect to K.K., his request for more time to retain counsel is quite understandable. I will allow him some additional time. However, I must consider the following:

a. The Society says he was served in July 2019. K.K. does not acknowledge this. b. He says he was delayed in responding because he was in jail. But he was in jail between September 2019 and December 18, 2019. He was out of jail for approximately three months before COVID-19 came to broadly impact the community. c. He had plenty of time to retain counsel and file materials prior to the originally scheduled hearing of the summary judgment motion on February 18, 2020. d. He was already given a further extension to March 4, 2020. I note that Justice Brown identified that she was granting the extension “reluctantly” and she specified that the re-scheduling of the summary judgment motion to the March 30, 2020 sittings was “peremptory” on the Respondents. e. To his credit, without counsel, K.K. served and filed an affidavit in response to the summary judgment motion. f. Had COVID-19 not interceded, and had the summary judgment motion been called during the March 30, 2020 sittings, there would have been no basis for his request for a further adjournment. g. I am mindful of the fact that selecting and communicating with lawyers has been more difficult during the COVID-19 situation. But I can also take judicial notice of communications which the bench has received from the bar. Lawyers have made it overwhelmingly clear that it is more difficult for them to practice law, because they have to be conscious of COVID-19 safety restrictions in dealing with people. But lawyers have also emphasized that they are open for business and desperately anxious for the court to be more available for lawyers to proceed with their cases. Lawyers are available and willing to take on cases. h. I will allow a brief extension for K.K. to make whatever arrangements he wishes with counsel. i. But K.K. should have been pursuing counsel long ago – before anyone had even heard of COVID-19. Despite the current pandemic, he should still be able to retain counsel. He says he already has a Legal Aid certificate.

[11] Counsel expressed concern about whether this summary judgment motion is too complicated to proceed by Zoom videoconference.

a. Clearly, proceeding in the courtroom would have been everyone’s first choice. b. But the court and the entire community must face the reality that the COVID-19 pandemic is forcing us to change the way we do things. At least temporarily. And quite possibly indefinitely. c. I anticipate that any proceeding being conducted by videoconference will be more cumbersome and time-consuming than if it were to proceed in the courtroom. d. But we are all working very hard to adapt. And I am confident that in this case – particularly since the determination will be made based upon written materials – fairness and justice can be maintained, even using Zoom or some other video conferencing format.

[12] The order:

a. The Society’s motion for summary judgment shall proceed, to be heard not sooner than (and preferably during) the week of June 29, 2020. b. The matter shall be scheduled for two full days. c. The matter is not to be scheduled before Justices Brown or Lafrenière. d. This is peremptory on all Respondents. e. The parties may rely upon all materials filed to date, including affidavits the parties and the Society filed in relation to a related access motion. f. K.K. shall be allowed until June 12, 2020 to serve and file a further affidavit. g. The Society, the mother and R.C. shall be allowed until June 19, 2020 to serve and file any responding materials in relation to K.K.’s affidavit. h. Factums shall be served and filed by June 25, 2020. The factums should include hyperlink connections with respect to any caselaw or legislation being referred to. i. All materials (including previously served materials) may be filed electronically. j. Counsel should submit materials in complete sets both in paper form to be filed physically with the court and electronically (to allow the presiding judge to make their own determination as to whether they wish to utilize paper documents, electronic documents, or a combination of both). Paper copies of everything to be filed by June 25, 2020. k. Existing order to continue.

Pazaratz J.

Date: May 22, 2020