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-09-350-4 DATE: 20210312 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 B.L., […]/2008, S.L. […]/14, J.L., […]/2016, N.L., […]/17, A.L., […]/19.
BETWEEN: THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant/Moving Party – and – J.L. and A.C. Respondents – and – T.P. and M.C. Respondents
COUNSEL: Brian Fisher, for the Applicant/Moving Party (The Children's Aid Society of Ottawa) Cedric Nahum, for the Respondent, J.L. Mellington Godoy, for the Respondent, A.C. Annemarie Roodal, for the Respondents, T.P and M.C. Sheldon Cherner, counsel for the child, B.L.
HEARD: March 9, 2021
Reasons for Decision
Audet J.
[1] On March 9, 2021, I heard a motion brought by the respondent mother, J.L., seeking an order that I recuse myself as trial judge and from hearing or deciding on any matter pending trial, due to a reasonable apprehension of bias on her part. The respondent father, A.C., supports that position.
[2] The Society, counsel for the eldest child B.L., and the added party, T.P. and M.C. (“the kin”), seek the dismissal of the motion. They are of the view that no reasonable apprehension of bias arises in the circumstances of this case.
[3] The trial in this matter is set to begin on April 19, 2021, for two weeks. By the time this motion was heard by me, it had already been confirmed that I would not be the trial judge, thus making part of this motion moot. There are, however, two pending motions which are set to be heard before me next week; a records motion scheduled for March 16 and a temporary care and custody motion scheduled for March 17. The Society has indicated that it may bring a cross-motion on March 17 to vary the parents’ access with B.L., but this is not yet confirmed.
[4] For the reasons set out below, the parents’ motion seeking my recusal is dismissed.
Background
[5] The respondents, A.C. (“the father”) and J.L. (“the mother”), are the parents of B.L. (12), S.L. (7), J.L. (5), N.L. (3) and A.L. (1). B.L.’s biological father is K.C., whose whereabouts are unknown. A.C. has acted as a parent for B.L. for many years now.
[6] On February 19, 2020, I heard a motion brought by the Society seeking an order that B.L. (12) be placed in the temporary care of his maternal great uncle and his partner under a supervision order pending trial. The parents brought their own motion seeking the gradual return of all five children in their temporary care pending trial under a supervision order. At that time, all five children were either in kin’s care or in the Society’s care. The trial, at that time, was set to begin in the Fall of 2020.
[7] In my Decision released on February 24, 2020, Children’s Aid Society of Ottawa v. J.L. , 2020 ONSC 1199, I concluded that it was in B.L.’s best interests to be placed with his kin pending trial. Although I recognized that the parents had made recent progress in addressing the protection concerns, I concluded that before I could consider the reintegration of the other four children into their parents’ care, the following needed to occur:
- a period of a few months of sustained attendance to programs;
- a period of a few months of regularly attending their access visits (which could be increased gradually during this period);
- positive engagement by the parents in addressing their mental health and addictions issues;
- The parents meeting with the Society’s workers to establish a family support network.
[8] I added the following at para. 37:
…However, time is ticking, and I am not prepared to leave it to the Society’s discretion to decide when the parents’ visits with the children should begin to increase or when a gradual reintegration plan should be put into place. I am also of the view that the parents must clearly understand that they must meaningfully engage in all the services previously identified by the Society if they are to maintain any hope of their children being reintegrated into their care before trial.
[9] Based on the above, and rather than dismissing the parents’ motion at that time, I adjourned it to March 31, 2020 to provide the parents with more time within which to engage in services and establish progress with meeting the objectives set out above. I seized myself of the care and custody motion and ordered the parties to re-attend before me on March 31 to re-assess whether the parents’ visits with the children should be increased and/or whether they should be gradually reintegrated into their care.
[10] Unfortunately, the COVID-19 pandemic struck before the motion could return before me.
[11] During the Child Protection Assignment Court held on July 13, 2020, a temporary without prejudice order was made on consent of the parties placing S.L.(7) in the care of her parents under a supervision order, and the motion before me was scheduled to resume on September 17, 2020. By then, new dates had been secured for the trial which was to be heard in December 2020.
[12] Upon the return of the motion before me, both the Society and the parents were seeking a temporary order placing N.L. (then 3) and A.L. (then 14 months) in the care of their parents pending disposition of the application. A more gradual re-integration process was being discussed in relation to J.L. (5), who was still in care. A.L.’s kin (the added parties), with whom A.L. had been placed since she was four months old, attended that hearing and voiced their strong objections to the Society’s plan to place A.L. back in her parents’ care essentially overnight, without a gradual reintegration plan having been put into place. They expressed their intention to be added as parties to this case and to file their own Answer and Plan of Care.
[13] It is to be noted that at the time of the September 17 motion hearing, the parents had had very little access with A.L. since my previous order, through no fault of their own and mainly due to the pandemic. The Society’s decision to place A.L. in her parents’ care as of September 2 had only been communicated to the kin five days prior, on August 28. Although the Society did not object to it, there was no plan for A.L. to continue to have contact with her kin and the parents were not open to provide the ongoing access sought by the kin.
[14] For detailed reasons set out in my unreported September 17 Endorsement, I expressed significant concerns about the Society’s plan for A.L. which I did not feel, based on the evidence filed by the parties for that motion, was in the best interests of A.L. I stated:
Let me be clear. While on a temporary basis I am satisfied that a re-integration plan is in order and in the best interests of these two young children, the evidence adduced by the Society, over the concerns and objections raised by [the kin] in relation to [A.L.], does not satisfy me that the way it is being implemented is in the best interests of these children.
[15] As a result, I adjourned the motion for a short period of time and requested additional evidence from the parties addressing the concerns raised by me. For the purpose of that motion, I permitted the kin to make submissions and to serve and file their own affidavit if they wished. On a temporary without prejudice basis, A.L. was placed in the care of her parents, but subject to the Society ensuring meaningful access between A.L. and her kin at least three times per week, for a minimum of three hours each time, until the return of the motion before me. Finally, I granted leave to the kin to bring a motion to be added as parties to this proceeding, as requested by them, which motion could be heard before any judge.
[16] For reasons that need not be related here, the motion was delayed and ultimately, it was back before me on October 2, 2020. The kin’s motion to be added as parties was also placed before me on that day. By that time, the kin were no longer seeking the return of A.L. in their care, but wished to be added as parties to pursue their claim for a more gradual return of the child in her parents’ care, and to pursue their claim for expanded access to A.L.
[17] In my unreported October 4, 2020 Endorsement, with regards to the issue of A.L.’s reintegration in her parents’ care and the level of access sought by the kin, I concluded:
… A.L. has been in her parents’ primary care since the beginning of September now (over one month). There is no evidence before me that suggests that she is not well cared for by her parents, or that there are currently any concerns of the kind which prompted the Society to bring the children to a place of safety. I am of the view that the abrupt change in [A.L.]’s primary care has been disruptive enough for her emotional health, that any further changes to her day-to-day caregiver may very well cause her further emotional harm.
Although I do not approve of the manner in which [A.L.] was reintegrated in her parents’ care, I am of the view that in the current circumstances, it is in her best interest to minimize any further major disruptions to her current routine so that she can continue to settle in with her parents and siblings, develop her attachment to them and reintegrate her family environment. For that reason, I find that the access plan proposed by the kin would be too disruptive and confusing for her. In particular, I am of the view that [A.L.] should return to her parents’ care, their home and her own bed, every night.
[18] I granted the kin access to A.L. every Tuesday and Thursday from 10 a.m. to 5 p.m. and ordered that, should the parents need childcare for A.L., priority was to be given to the kin.
[19] Despite the strong objections of the parents, and for detailed reasons set out in my unreported October 4 Endorsement which I will not repeat here, I concluded that it was in A.L.’s best interests that the kin be added as parties to this proceeding, but only for the purpose of advancing their claim for access to A.L. At that time, the parents and the Society expressed concerns about potential delays that might be caused by the kin’s late addition as parties to this proceeding, particularly in light of the forthcoming trial and their potential requests for disclosure from the Society and/or third parties. A records motion was being discussed and, given the fast-approaching trial, time was of the essence.
[20] To limit the possibility of delays resulting from pre-trial issues, I ordered that any further motions in this case, including records motions, until the trial was held were to be brought before me, and permitted the parties to bring such motions on short notice.
[21] It is clear that the parents took objection with my decision to add the kin as parties to this case. They voiced their strong objections during the October 2 hearing before me and, subsequently, they sought leave to appeal my decision before the Divisional Court. Their request for leave to appeal was denied by the Divisional Court recently.
[22] Ultimately, the trial did not proceed in December 2020. In the context of a settlement conference held before Engelking J. on October 23, 2021, she postponed the trial to the weeks of April 19 and 26, 2021, on consent of all parties. I am not privy to the reasons which led to the trial being adjourned, but undoubtedly the parents’ appeal of my decision to add the kin as parties needed to be adjudicated before the trial was held. Since all the children, except for B.L., were now back in the parents’ full-time care, there was also less urgency for the trial to be held.
The Parents’ Position
[23] The parents ask that I recuse myself from hearing the two motions scheduled to proceed on March 16 and 17, as well as any other motions that may be brought in this proceeding until trial. Since I will not be presiding the trial, the parents’ arguments in relation to my perceived inability to be impartial as the trial judge will not be discussed here, since this issue is now moot.
[24] The parents are of the view that, given my significant prior involvement in this matter, a reasonable person would realistically conclude that at least some measure of prejudgment exists. While the parents acknowledge that I may not actually hold any bias against them, they argue that the test is not whether the bias exists; the test is whether a reasonable person in full knowledge of all the facts would reasonably believe it exists.
[25] The parents argue that my decision to grant party status to the kin, and the manner in which this was done, demonstrates a commitment to advancing the kin’s interest over their own. In their view, the fact that I accepted the kin’s evidence over their own evidence in the context of the October 2, 2020 motion, and concluded that A.L.’s separation from the kin had been emotionally harmful to her despite the evidence to the contrary adduced by the parents and the Society, raises a reasonable apprehension on their part that I may be biased against them and that I do not and will not in future hearings trust their evidence.
[26] The mother also expresses concerns about the fact that, during the first motion hearing back in February 19, 2020, I reviewed a Family Court Assessment prepared by Mr. Pelletier, a psychologist, containing information about B.L.’s special needs and the parents’ ability to parent him and meet his needs. The mother is of the view that the issues raised in that report are three years old and that my perception of her has been irremediably colored by the outdated information contained in that report.
[27] Finally, the parents argue that my prior decisions all contain negative language against them, and that I have consistently found them unprepared to have their children re-integrated into their care. As a result, they say, the actual integration of the children into their care has had to occur outside of judicial proceedings, with the consent of the Society. This, in their view, further supports their perception that I show a consistent bias against parents and a pervasive belief that all of the children are better off in the care of the Society rather than in the care of their parents.
The Legal Framework
[28] The legal principles related to bias and recusal are well established and have recently been summarized as follows by Bale J. in CAS v. J.J., C.M. and Six Nations of the Grand River , 2021 ONSC 1654, 2021 CarswellOnt 2924, at para. 24;
a) Bias or prejudice refers to a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case;
b) The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly”;
c) Impartiality is the fundamental qualification of a judge and the core attribute of the judiciary. It is key to the judicial process and must be presumed. While the requirement for judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified;
d) The threshold for a finding of real or perceived bias is high.
Analysis
[29] I will address each of the parents’ areas of concerns raised by them in their submissions which, in their view, lead to a reasonable apprehension of bias on their part.
My significant prior involvement in this case
[30] Subrule 2(4) of the Family Law Rules, O. Reg. 114/99 (“the Rules”) requires the court to apply the rules in a way which promotes their primary objective, which is to deal with cases justly. Dealing with cases justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
[31] Pursuant to subrule 2(5), the court is required to promote the primary objective by active management of cases. Remaining seized of particularly complex matters or motions to promote accountability, ensure compliance with court orders, assess the progress made by the parents in addressing protection concerns, or to periodically check-in on the children’s well-being while parenting time is gradually increased, is one of the most effective ways in which judges promote the primary objective of the Rules . This is also consistent with judges’ duty to promote the best interests, protection and well-being of children, as required by the CYFSA, the DA and the CLRA, among others.
[32] In McMurter v. McMurter , 2020 ONCA 772, the Ontario Court of Appeal recognized that, particularly in family law proceedings, where, as here, parties may appear in court repeatedly, judicial continuity is recognized as promoting both efficiency and fairness.
[33] This most recent motion hearing before me on March 9 was the 29th appearance overall in this Protection Application, which has been amended three times. This, in and of itself, is clear indication of the need for this matter to be actively case managed to bring it expeditiously to its due completion. Five children are at the heart of this case, all with very different circumstances and needs. Complex child protection cases, such as this one, often involve voluminous amounts of written evidence, often filling up several volumes of the continuing record. Each time a subsequent hearing or motion is heard by the court, updated affidavits from the parents and from a countless number of child protection workers, health practitioners, parents supports, access supervisors, teachers and other third parties are filed, usually referring the judge back to affidavits previously filed in the record to complete their evidence. It is simply unreasonable and counter productive to expect a different judge to have to read the entire record each time.
[34] In this time of pandemic, when judicial resources are scarce and the time required to deal with any matter is increased by the need to work remotely, it is particularly important to ensure that judicial resources are used efficiently to promote expeditious access to justice.
[35] In a case like this one, it was particularly important to have one single judge seized of the initial care and custody motion. There were many reasons for this. First, the amount of information needing to be reviewed by myself, even in the context of the first motion hearing, was voluminous. Having one judge seized of a motion of this nature to its completion allows the judge to have a very clear understanding of the case from one hearing to the next, a solid knowledge of the facts and an ability to get up to speed on updated materials without the need to read the entire record anew. Most importantly, my continued involvement in the children’s gradual re-integration into their parents’ care allowed me to truly appreciate the progress made by the parents in addressing protection concerns. Further, it allowed me to monitor how the children were faring when transitioning from the Society’s or the kin’s care to their parents’ care, and provided both the parents and the Society with quick access to a judge in case of an emergency if swift action became necessary.
[36] Similarly, seizing myself of all future motions until trial, which I did on October 4 after adding the kin as parties, was the most efficient way to ensure that the parents’ and the Society’s expressed concerns about potential delays of the trial as a result, was being addressed. The fact that the parents disagreed with my decision to add the kin as parties to the case, and in the manner that I did, is not sufficient to give rise to a reasonable apprehension of bias, from an objective perspective.
Evidentiary issues
[37] In McMurter v. McMurter , 2020 ONCA 772, the motion judge had seized herself of all motions pertaining to a security order with regards to spousal support. Despite significantly adverse findings had been made by the motions judge with regards to the appellant’s credibility in the context of a series of motion hearings, which the appellant described as, among other things, "disparaging and vituperative" and "unnecessary to a fair resolution of the issues between the parties", the Court of Appeal nonetheless concluded that adverse credibility findings did not give rise to a reasonable apprehension of bias.
[38] In its decision dismissing the appeal, the Court of Appeal reiterated that judges are presumed to be impartial and the test for apprehension of bias establishes a high threshold. As a starting point, and contrary to the appellant’s submissions, the Court of Appeal found that the motion judge's credibility findings were findings that were necessary to the proper adjudication of the issues in that proceeding. The court concluded (at para. 29):
In any event, I am not satisfied that the motion judge’s adverse credibility findings in her 2016 change motion reasons, standing alone, compromised her impartiality in relation to the issues before her on the 2018 security order motions. The main issue was whether the remaining security would be sufficient if the appellant was permitted to dispose of the Bell’s Side Road property. Prior to the recusal motion, the motion judge had already determined that the remaining security would be sufficient.
[39] Similarly, here, my role as the motion’s judge was to determine, based on the evidence before me, what outcome was best for the children. Motions judges are always faced with contradictory evidence, which requires the judge to prefer one version of the facts over another, and in certain circumstances to assess the affiants’ credibility considering the evidence as a whole. If this exercise, in and of itself, created a reasonable apprehension of bias, then a judge would always be precluded from hearing any subsequent motion in the same case. This is not the state of the law.
Negative language
[40] Having reviewed all my decisions rendered in this case, I am unable to find any portion of my decisions where I would have used negative language to describe the parents. Even if I had, my comments above equally apply to this area of the parents’ concerns about my impartiality.
Mr. Pelletier’s 2019 Report
[41] The mother’s argument that my review of the Family Court Assessment prepared by Mr. Pelletier in 2019 has forever tainted my opinion of her is also not reasonable if assessed from an objective perspective.
[42] Section 93 of the CYFSA expressly allows the court to consider, despite anything in the Evidence Act, R.S.O. 1990, c. E.23, the past conduct of a person toward any child if this person is caring for or has access to, or may care for or have access to, a child who is the subject of the proceeding. The assessment prepared by Mr. Pelletier in 2019, on consent of the parents, was clearly admissible evidence in the temporary care and custody motion. While the information in the assessment report was admittedly outdated, it nonetheless showed historical concerns about the parents’ relationship with B.L. and the issues which gave rise to protection concerns in relation to this particular child in the past.
[43] It is against historical protection concerns that the court is often required to assess, based on current evidence, whether protection concerns have re-occurred or continue to exist. I do not think it is reasonable to conclude that the court is unable to appreciate the progress made by the parents in this case, and to make an order accordingly, simply because the court has had access to a report that is dated and may no longer be representative of the parents’ current circumstances. It is a function of the judge, sitting in trials or motions, to be able to be unaffected by inadmissible and/or outdated evidence. Judges are routinely entrusted with the task of hearing and rejecting information that has little relevance. Judges can and routinely do disabuse their minds of potentially prejudicial information. This case is no different.
Conclusion
[44] The analysis as to whether a reasonable apprehension of bias exists must be assessed from an objective perspective. Paull J. explained it as follows in Children’s Aid Society of Oxford County v. E.M.T. , 2019 ONCJ 427, | 26 R.F.L. (8th) 115 at paras. 35 to 37:
35 The analysis is conducted from the point of view of a reasonable and right-minded person. That reasonable person must be one who is informed with reasonable knowledge of all the relevant circumstances and an understanding of the judicial process and nature of judging in child protection matters.
36 That reasonable person would be aware of the expanded role of a judge in family law matters and in child protection matters in particular. In a case where the paramount consideration is the best interests of children, the court not only has the authority but the duty to intervene to clarify and understand the evidence.
37 Further, that reasonable person would be aware that both the case law and the CYFSA provide the court in protection proceedings with the authority to insist on more evidence than the parties presented.
[45] For all the above reasons, I cannot find that an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that I am biased against the parents or that I have prejudged the outcome of any motion that I might hear in this proceeding.
The Additional Consideration of Delay
[46] Consideration must also be given to the potential impact of my recusal on the parties’ ability to proceed with trial in four weeks, and on the parents’ ability to have J.L. (5) re-integrated into their care, should that be in his best interest, before the trial is heard. The Society’s most recently amended Protection Application seeks an order for Extended Society Care for J.L. (5) who, contrary to three of his siblings, has remained in the Society’s care to this date. Access between J.L. and his parents has recently been significantly curtailed by the Society, thus prompting the parents to bring this care and custody motion weeks before trial.
[47] The Society, on the other hand, is bringing a records motion to obtain evidence which, in its view, is necessary for the trial. If the motion is delayed, it is doubtful that any documents ordered to be produce will be available on time for the trial, potentially resulting in another adjournment.
[48] Time, therefore, continues to be of the essence. My recusal from these pre-trial motions will likely lead to the motions having to be rescheduled to another date if another judge cannot be secured on such short notice. This would clearly not be in the children’s best interests.
Order
[49] For all these reasons, the mother’s motion is dismissed.
Madam Justice Julie Audet Released: March 12, 2021

