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 and Parties

Court File No.: FC-14-398-5 Date: 20200608 Superior Court of Justice – Ontario

In the Matter of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1

And In the Matter of R.G., d.o.b. […], 2008; M.G. (1), d.o.b. […], 2010; J.J.G., d.o.b. […], 2012, M.G. (2), d.o.b. […], 2015

Re: The Children’s Aid Society of Ottawa, Applicant And M.L. and J.G., Respondents

Before: Madam Justice Julie Audet

Counsel: Marcelle Story, counsel for R.G. and M.G. (1) Tara MacDougall/Marie-Josee Ranger, counsel for the Children’s Aid Society of Ottawa Kristen Robins, counsel for the mother, M.L. Stephen Pender, counsel for the father, J.G.

Heard: June 8, 2020

Endorsement

[1] The trial in this matter was completed on February 21, 2020, after fifteen days of hearing. I took my decision under reserve and then the COVID-19 pandemic struck us all. On May 8, 2020, before my decision was released, counsel for all parties wrote to me to inform me of material changes in circumstances affecting the children and sought to re-open the trial. During a teleconference that took place on May 13, 2020 and during which counsel advised me of the important developments that occurred since the completion of the trial, I agreed that it was appropriate to re-open this trial to allow the parents to present amended answers and plans of care and to allow all parties to adduce new evidence.

[2] Given that in-person attendance in court continue to be restricted, it was agreed that the continuation of this trial would be heard via videoconferencing. On June 5, a lengthy trial management conference was held to discuss the parameters within which this trial would be continued as well as the many technological issues that needed to be addressed.

[3] In crafting this detailed trial management endorsement, I have relied heavily on the Ontario Bar Association’s Best Practices for Remote Hearings released on May 13, 2020. This comprehensive guide was invaluable to the Court’s ability to properly prepare for the continuation of this trial via videoconference. I wish to extend my gratitude to the Ontario Bar Association for the tremendous efforts it deployed to swiftly develop this vital tool in these unprecedented times.

[4] I have also liberally borrowed from Justice Lafrénière’s comprehensive and thorough endorsement in Rovi Guides, Inc. v. Videotron Ltd., 2020 FC 637, in crafting my own endorsement which I have adapted to the needs of this child protection trial.

1. Issues

[5] The relevant issues for the resumption of this trial are narrow and twofold:

• The parents’ new plans of care;
• Recent events which have affected the children’s placements in foster care.

2. Witnesses and Evidence

[6] At this time, only the mother and the Society intend to adduce new evidence.

[7] All evidence in-chief will be adduced by way of affidavits, to be served on opposing counsel by June 19, 2020, at 4 p.m. Counsel will have until June 24, at 4 p.m. to confirm which witnesses they wish to have produced for the purpose of cross-examination, which will take place viva voce by videoconference.

[8] On consent of all parties, any of the respondents’ counsel may request that Ms. Myles (the children’s CYC) be produced for the purpose of cross-examination even if she does not provide any evidence in-chief.

[9] The Society shall provide weekly disclosure to the respondents until the trial resumes.

3. Technology

[10] The hearing will proceed using the Zoom platform, beginning on June 29, 2020, at 10 a.m. It is anticipated that, by that time, our court registrars will have been fully trained on Zoom and will be able to take on the role of moderators (hosts). If that is not the case, the Court will request that the hearing be conducted through an external service provider approved by the Ministry of the Attorney General (some providers have already been approved for this purpose).

[11] All counsel, parties and witnesses must sign in Zoom using their full names.

4. Document Management

[12] Affidavits and other evidentiary documents to be adduced during the trial will be managed using the sync.com document sharing platform. The account will be created by the Court and access to same will be provided to all counsel by June 24 at 4 p.m.

[13] All affidavits shall be assembled in one searchable PDF document (called “Joint Brief of Affidavits”) and shall be organized using Bookmarks and a table of content identifying each individual affidavit using the naming convention described below. For that purpose, it is strongly recommended that counsel familiarize themselves with the Family Law Matters: Best Practice for Sending Large Electronic Documents to Court prepared by an ad hoc committee of the Ottawa Family Bench and Bar Committee (available on the CCLA website).

[14] To the extent that it is possible, all other documents to be adduced in evidence by the parties should be assembled in one PDF document (called “Joint Brief of Documents”) also organized using Bookmarks and a table of content identifying each document in accordance with the naming convention described below.

[15] If for some reason joint briefs cannot be submitted, each party may file their own individual briefs of affidavits/documents clearly identifying same (for instance: “Mother Brief of Documents”). If this is not possible, then at the very least each party’s affidavits/documents should be uploaded on the sync.com platform in individual folders (each folder properly identified as follows: “Society”, “Mother”, “Father”, “OCL”), with each document uploaded within each folder being identified in accordance with the naming convention below.

5. Naming Convention

[16] Joint or individual briefs of documents shall be identified as described above, with the court file number preceding the description. For example, the Joint Brief of Affidavits shall be identified as follows: “FC14-398-5 – Joint Brief of Affidavits”.

[17] Each individual document within a joint brief of affidavits/documents shall be clearly identified with the Tab number and a brief description revealing its nature (email, report, affidavit, letter, etc.) and its date. For instance:

• Tab 1 – Email from Bob to Jane 4 Feb 2019
• Tab 24 – Affidavit of John Doe 16 December 2008
• Tab 6 – Sandra Dee Telus telephone records 1 Jan 2007 – 30 Nov 2010

[18] Each page of a joint brief of documents must have a page number (distinct from the page numbering already contained in each individual document within the brief), from the first to the last page (to facilitate identification).

[19] Each document that is submitted individually (not incorporated into a brief) shall be identified with the court file number and a brief description revealing its nature and date. For instance:

• FC14-398-5 – email from Bob to Jane 4 Feb 2019
• FC14-398-5 – Excerpt from mother’s journal – undated
• FC14-398-5 – Affidavit of John Doe 16 December 2008

[20] Each document submitted individually must be page numbered from the first to the last page.

6. Trial Distribution List

[21] To facilitate the expeditious exchange of documents which may have inadvertently been left out, that a party wishes to put to a witness during cross-examination or re-examination, or which needs to be provided again to a witness who experiences difficulty in locating his/her own copy, documents may also be adduced in evidence/exchanged during the trial in the manner described below.

[22] Counsel to the parties shall jointly prepare an email distribution list to which documents may be circulated during the trial (“the Trial Distribution List”). This list shall include: myself and the court’s registrar (the email addresses to be used for this purpose will be communicated during the test run scheduled for June 25), counsel and the parties. Counsel for the parties shall also exchange the email addresses of any person intended to be called as witnesses in order to allow these parties to access documents during their testimony.

[23] In addition, counsel for the parties shall ensure that they each have back-up phone numbers for every witness they intend to call and that each of these witnesses has counsel’s phone number that he/she can call so that counsel and witnesses can communicate with one another in the event that the Internet connection is interrupted or some other technical problem occurs. Prior to a witness being called, a phone number for the witness will be provided to the registrar and the witness will be provided with a phone number at which the registrar may be contacted in case of technical difficulties.

7. Witness Preparation and Testimony

[24] At the end of the test run which will take place on June 25, at 4 p.m. (as indicated below), a detailed witness schedule will be developed to clearly set out at which time and on which day each witness will be entering the videoconference for the purpose of being cross-examined. Counsel shall canvass their witnesses’ availability prior to the test run so that the schedule can be created on that day.

[25] Counsel are expected to advise each of their witnesses (produced for the purpose of examination or cross-examination) in advance of their testimony of the scheduled time for their appearance, to help them understand and prepare for the virtual hearing they will be required to participate in, and to ensure that they are provided with all relevant emails, phone numbers and copies of relevant documents (such as their own affidavit) in advance of their testimony.

[26] Counsel shall provide each of their witnesses with a copy of Appendix A of the Ontario Bar Association’s Best Practices for Remote Hearings: “On-Screen Tips for Counsel, Parties and Witnesses” at least two business days before the commencement of the trial. Counsel shall also clearly communicate the following instructions to each of their witnesses before they testify:

• While the witness is giving evidence, the witness shall not review any documents or access any electronic resources (Internet or otherwise), other than: o Those documents put to them during their examinations or cross-examination; o Such documents as they may ask and be permitted to review; and o In the case of witnesses who have provided their evidence in-chief by way of affidavit, their affidavit.
• While the witness is giving evidence, the witness shall not refer to or rely on a script or any notes, unless permitted by the Court;
• While the witness is giving evidence and until the completion of such evidence, the witness shall not communicate with any other persons about the substance of their examination;
• The witness may communicate with counsel or another person while on a break prior to the commencement of their cross-examination, provided that any such communication is consistent with counsel’s professional obligations and applicable rules of the Court;
• If the witness requires the assistance of a third party during his or her testimony (for instance, to assist with technology), permission to do so must be requested before the witness’ testimony begin.

[27] Counsel shall also ensure that all of their witnesses have access to the technology necessary to testify virtually, ahead of the trial. To the extent that a witness does not have access to the necessary technology, I shall be alerted as soon as possible.

[28] There will be no subpoenas required for this trial. Those witnesses to whom a written request has been made to appear at trial (for this purpose an email request is acceptable) will be treated as if under subpoena for the purposes of permitting counsel calling those witnesses to make alternate arrangements for the adducing of evidence, if the witness fails to appear at the planned time.

[29] A copy of any documents intended to be put to a witness during that witness’ examination in-chief (if any) and/or that witness’ sworn affidavit shall be provided to the witness in advance of that witness’ examination in-chief. The witness may use a hard copy of those documents during his/her testimony instead of an electronic copy if he/she prefers.

[30] With respect to documents to be put to witnesses during their cross-examination or re-examination, counsel conducting such cross/re-examination may choose to put that document to the witness by sending a copy of the document by email to the witness and all participants (using the Trial Distribution List) as the witness is being cross/re-examined or, if it is a short document or the reference to it is brief or focussed on a small portion of the document, by asking the registrar to show the document on the screen, using the screen-sharing functionality.

[31] Any documents being put to witnesses electronically on examination, cross-examination or re-examination shall be in PDF format.

8. Testing Prior to Trial

[32] A test run will take place on June 25, 2020, at 4 p.m. The link for the Zoom conference will be sent to the parties the day before.

[33] The following people shall participate in the test run: myself, the court’s registrar and counsel for the parties. While the parties are not required to participate in the test run, they are free to do so if they wish.

9. General

[34] The registrar for the trial hearing will be the “host” of the Zoom sessions and I will be “co-host”. During witness examinations, the video feed will be restricted to the trial judge, the witness, the examining lawyer and opposing counsel. Other than those individuals, and the registry officer, all other participants will be muted and will have no video feed (their faces will not be shown on the screen) during the examination.

[35] During breaks, as much as is practicable, participants shall mute their microphones and turn off their cameras for the duration of the break, rather than disconnecting from the Zoom session. At the appointed time, participants shall turn on their cameras to signal that they have returned from break.

10. Next Steps

[36] A teleconference will take place on Tuesday, June 9, at 8:00 a.m. to discuss the potential need for a records motion to be brought.

[37] As stated earlier, a test run will take place on June 25, 2020, at 4:00 p.m.

Madam Justice Julie Audet Date: June 8, 2020