WARNING
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87 …
Order excluding media representatives or prohibiting publication
(7) Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
Prohibition re identifying child
(8) 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.
Prohibition re identifying person charged
(9) 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 …
Offences re publication
(3) 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.: FS-20-15022
DATE: 20200709
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Office of the Children’s Lawyer
Applicant
– and –
Catholic Children’s Aid Society of Toronto, TP and CA
Respondents
Elizabeth McCarty and Ian Ross for the Applicant DP
Chris Andrikakis for the Catholic Children’s Aid Society of Toronto
Marlo K. Shaw for TP (Mother)
Avi Baratz (as agent for David Miller) for CA (Father)
HEARD: July 9, 2020
Reasons For Decision
Penny J.
[1] On July 7, 2020, I granted the OCL’s motion to admit fresh evidence on appeal and allowed the OCL’s appeal from the Order of The Honourable Justice Sager of the Ontario Court of Justice, dated December 20, 2019,[^1] with reasons to follow. These are those reasons.
Background
[2] The necessary background to this matter may be stated briefly. The Child, DP (who is currently eleven years’ old), first came into the care of the Society in July 2017 when he and five siblings were apprehended. In January 2018, The Honourable Justice Jones found the children to be in need of protection. On April 16, 2018, Justice Jones appointed the OCL to represent DP.
[3] In the summer of 2018, DP’s siblings were returned to their parents’ care. DP, however, expressed anxiety about contact with his family and a strong wish to remain in care. In December 2018, an order was made placing DP in the care of the Society for a period of four months with access to his parents, subject to the child’s views and wishes and informed by the recommendations of the child’s treating healthcare professionals.
[4] The Society’s original status review application issued in March 2019 sought a consecutive order, the effect of which would have been to impose a further six-month interim care order, following which DP would automatically be returned to the care of his parents. The Society, however, amended this application in July 2019 to seek only an extended care order, in part based on a pending psychological assessment of DP.
[5] The trial began on November 18, 2019. The psychologist, Dr. Vallance, who had prepared the psychological assessment of DP was unable to testify due to health problems and so her assessment was not placed in evidence or considered by the trial judge. After hearing three days of evidence, the trial was adjourned to November 21, 2019 to hear evidence from the last two witnesses. On the resumption of the trial, the Society and the parents advised the Court that they had reached consent on a consecutive order under s. 101(1)(4) of the Child Youth and Family Services Act, 2017 providing for a further six-month interim care order followed immediately by a six-month supervision order. Under the proposed consent order, therefore, DP would return to the care of his parents without a status review by the Court at the end of the interim Society care order.
[6] The OCL opposed the portion of the order requested in the consent that required DP to return home automatically after the six-month interim care order. The OCL took the position that, without DP’s consent, there was no consent and that, therefore, no order could be made until the conclusion of the trial.
[7] On December 20, 2019, following submissions, and over the OCL’s strong objection, Justice Sager made a final order on the terms of the consent of the parents and the Society based on the agreed statement of facts of the Society and the parents previously filed on November 21, 2019.
[8] The OCL requested that the trial judge provide written reasons to explain why she was prepared to accept a consent mid-trial when DP, who had the rights of the party, was opposed to the order. Despite this request, the trial judge did not provide reasons for her decision.
Grounds of Appeal
[9] There are three grounds of appeal:
the trial judge erred in law when she made an order, purportedly on consent, in the middle of a trial despite DPs opposition;
the trial judge erred in law by predetermining issues prior to hearing submissions from the OCL, as DP’s legal representative; and
the trial judge erred in law by not providing reasons for significant live issues before the Court.
DP’s Opposition to the Order
[10] In my view, the trial judge erred in law making a final order before the completion of the trial when DP opposed the order. Section 79(6) of the CYFSA entitled DP, as a child who had legal representation in the proceeding, to participate in the proceeding as if he were a party . The trial judge simply had no jurisdiction to make a “consent” order when DP opposed both the order sought and the evidentiary basis upon which it was being sought.
[11] The OCL, as counsel for DP, could not have been clearer in its opposition to the making of the order and to the so-called “agreed facts” upon which the proposed order was to be based.
[12] In accepting the consent and statement of agreed facts, the trial judge disregarded DPs participatory rights and failed to recognize DP as an individual rights holder. This was contrary to:
a) specific statutory language granting children the right to be treated as parties; and
b) the overall objectives of the CYSFA as set out in the Preamble.
[13] The Preamble to the CYFSA significantly enhances the importance of recognizing children as individual rights holders in several respects:
children are individuals with rights to be respected and voices to be heard;
the aim of the CYFSA is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child which includes a child’s right to have a voice in decisions that are being made about their lives;
services provided to children should be provided in a manner that includes the child or young person in the decisions;
the child’s views and wishes are now one of two mandatory considerations under the best interest test in Part V (Child Protection) and Part VIII (Adoption); and
children were given expanded participatory rights in openness proceedings under Part VIII. The Guide to the Implementation of Selected Provisions of the CYFSA reference the rationale for this change as being to ensure that “the child can participate as if they were a party, without restriction ” (emphasis added).
[14] Section 79(6) of the CYFSA entitles a child to participate in a proceeding as if they were a party, where, among other things, the child has legal representation. Not all children in protection proceedings have the rights of a party. But once the Court orders legal representation, as was the case here, that child is given the rights of a party under s. 79(6). Section 79(6) places no restrictions on the child’s rights as a party, unlike, for example the right to “participate” granted under s. 79(3). And, unlike Rule 4(7) of the Family Law Rules , under s. 79(6) the Court does not have the power to place any limits on the child’s rights as a party.
[15] Further, the order of April 16, 2018 appointing the OCL as DP’s counsel specifically confirms that the OCL has full power to act as though the child is a party to this proceeding.
[16] I also agree with counsel for the OCL where she wrote, in her factum, that absurd results would follow from an interpretation of s. 79(6) that would enable the Court to make an order affecting a represented child based on a proposed “consent” of other parties over the child’s objection, see the analysis at para. 34 of the OCL factum.
[17] For these reasons, I must conclude that the trial judge erred in law making a final order before the completion of the trial when DP opposed the order.
[18] On this basis alone, the order must be set aside and a new trial ordered.
2) Did the Judge Predetermine the Issue Before December 20, 2019?
[19] Although not strictly necessary, I will address briefly the two other arguments advanced by the OCL.
[20] While I agree with the OCL some of the trial judge’s comments from November 21, 2019 were concerning, they do not, in my view, rise to the level of unambiguous evidence of a predetermination of the issue of whether the consent should be accepted and the requested order issued. Standing alone, I would not have been prepared to set aside the order on the strength of this argument.
3) The Failure to Give Reasons
[21] An appeal based on inadequate reasons cannot be based on a claim that the trial judge did a poor job of expressing herself; nor is the failure to give reasons necessarily a “freestanding” ground of appeal. Nevertheless, the purpose of reasons is:
a) to justify and explain the result;
b) to tell the losing party why he or she lost;
c) to provide for informed consideration of the decision if it is appealed; and,
d) to satisfy the public that justice has been done.
[22] In this case, the trial judge did not provide any reasons for her decision. A detailed review of the transcripts of the interchanges with counsel does not provide any explanation for her decision. I agree with OCL’s counsel that, in fact, the transcripts give rise to more questions than answers as to why the order was made.
[23] For example, the trial judge refers to a “gaping hole” in the evidence created by Dr. Vallance’s inability to testify and stated that she needed a better understanding of why DP did not want to return home. She ordered an assessment to provide the missing information. But then, without explanation, the trial judge proceeded to make an order that would automatically return DP home without a status review.
[24] This is a case in which the lack of any explanation means there is no justification or explanation of the result, DP does not know why this order was made over his objections, meaningful appellate review is essentially impossible, and no transparency into whether or not justice was done. For these reasons, the trial judge’s failure to provide reasons on critical issues before the court constitutes an error of law. This too, provides a sufficient ground to set aside the order and to order a new trial.
Conclusion
[25] For these reasons, the appeal is allowed and a new trial is ordered.
Costs
[26] No costs were sought. None are ordered.
Penny J.
Released: July 9, 2020
COURT FILE NO.: FS-20-15022
DATE: 20200709
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Office of the Children’s Lawyer (for DP)
Applicant
– and –
Catholic Children’s Aid Society of Toronto, TP (Mother) and CA (Father)
Respondents
REASONS FOR JUDGMENT
Penny J.
Released: July 9, 2020
[^1]: It should be noted that the relief sought by the OCL was not opposed by the CCAST or the Child’s parents.