WARNING

The court hearing this matter directs that the following notice be attached to the file:

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- 21-22782

DATE: 20210913

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Child, Youth and Family Services Act,. S.O. 2017, c. C.14, Schedule 1

AND IN THE MATTER of the children:

Ki C. (born […], 2005)

Ke S.-N. (born […], 2009)

BETWEEN:

THE CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

(Appellant)

– and –

S.K.S., M.C. and T.N.

(Respondents)

– and –

CANADIAN ASSOCIATION OF REFUGEE LAWYERS

(Intervenor)

Fatima Husain and Marshall Matias for The Catholic Children’s Aid Society of Toronto

Jessica Gagne for the Respondent, S.K.S.

Madeleine Sarick and Caterina E. Tempesta for the Office of the Children’s Lawyer

Cheryl Robinson and Aviva Basman for the Intervenor, Canadian Association of Refugee Lawyers

Jocelyn Espejo-Clark and Alex Kam for The Minister of Public Safety and Emergency Preparedness

HEARD: July 19, 2021

PENNY J.

REASONS FOR JUDGEMENT ON APPEAL

Overview

[1] This is an appeal from the April 1, 2021 Order of Justice Sager of the Ontario Court of Justice granting, in part, a motion for disclosure brought by the Minister of Public Safety and Emergency Preparedness in these proceedings. “These proceedings” are child protection proceedings initiated by the Catholic Children’s Aid Society of Toronto under what is now the Child, Youth, and Family Services Act, 2017, S.O. 2017, Chapter 14, Schedule 1.

[2] In the Order under appeal, the motion judge ordered the Society to provide to the Minister:

(a) all status review applications and all agreed statements of fact filed with the court in this matter since 2015; and

(b) all future status review applications and all statements of agreed fact in this matter upon which the parties intend to rely in seeking any further orders in the future.

The motion judge also ordered that the Minister:

(c) be permitted to have counsel attend in court and make submissions on the supervision order being requested by the parties insofar as it has an impact on the Minister’s interests; and

(d) shall not use the documents ordered to be provided for any purpose other than to decide if he intends to make submissions to the Court and to assist in preparing those submissions, and shall not copy or distribute these documents or file these documents in any other proceeding.

[3] Both the Society and the Office of the Children’s Lawyer appeal the provisions of the Order summarized in para. 2 (a), (b) and, in part, (c) above. There is no appeal from the provisions of the Order summarized in para. 2 (d) above.

[4] The reasons of the motion judge are lengthy, detailed and thorough. For the reasons that follow, the appeal is dismissed. Although I would dismiss the appeal essentially for the reasons of the motion judge, given the time spent on certain issues and the nature of those issues, I will provide, in my reasons, a somewhat more expanded explanation for my decision on the main issues addressed by the appellants.

The Issues

[5] The issues in this case are somewhat unique and arise out of the intersection of s. 50(a) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA), the provisions of the Child Youth and Family Services Act (CYFSA) and applicable provisions of the Family Law Rules, O. Reg. 114/99 (FLR).

[6] There are three main issues. The first two are characterized by the appellants as “jurisdictional” in nature and are advanced by both appellants. In addition, the OCL advances a third issue as grounds for appeal, as set out below:

(1) Does the opportunity for the Minister to make submissions, as contemplated in s. 50 of the IRPA, extend to the ability of the Minister to make submissions on whether there is a genuine lis, or issue in dispute, between the Society, the OCL and the parent over whether the children are in need of protection and whether any further supervision or other child protection order should be made?

(2) Does the Ontario Court of Justice, as a statutory court, have jurisdiction to make orders for document disclosure and rights of audience for non-parties to these child protection proceedings? and

(3) Did the motion judge create a reasonable apprehension of bias or cease to be impartial as a result of statements she made during a pre-hearing case conference?

[7] The appeals of the Society and the OCL are supported by the respondent mother and by the intervenor, Canadian Association of Refugee Lawyers. The appeals are, obviously, opposed by the Minister.

Background

[8] Ms. S arrived in Canada with her oldest daughter St, and her only son Ki, in December 2007. Ki, at the time, was just two years of age. Ms. S lost her immigration status in Canada in May 2008. She gave birth to her daughter, Ke, in […] 2009, and then sought to regularize her immigration status. She made a claim for refugee status in May 2009. That claim was refused in July 2011, and she and her two older children (St and Ki) became subject to an enforceable removal order. A subsequent appeal and an application for status on the basis of humanitarian and compassionate grounds was refused. A further application made in June 2019 has not yet been determined. Ms. S and her son Ki remain under a valid removal order at this time (St became an adult and no longer has any role in these proceedings).

[9] The Society has been involved with Ms. S and her children since December 2010, initially due to concerns regarding physical discipline/abuse by Ms. S of her oldest child St. The Society remains involved with the family at the present time.

[10] In September 2013, Ms. S was charged with the Criminal Code offences of assault and assault with a weapon against her eldest daughter. The terms of Ms. S’s recognizance prohibited any unsupervised contact between Ms. S and her children. The children, Ke and Ki, were removed from Ms. S’s care and the Society commenced protection proceedings. Ms. S was ultimately convicted of the Criminal Code charges.

[11] The Minister was made aware of the charges and Ms. S’s subsequent convictions. As a result, the Minister determined that Ms. S is “inadmissible” to Canada for “serious criminality”. Ms. S was then issued a deportation order with no right to appeal.

[12] In November 2014, the children, Ki and Ke, were returned to their mother’s care subject to an order of supervision by the Society. Ms. S had worked cooperatively with the Society and community resources to mitigate the risk to the children in her care, such that the Society felt the children could be safely placed with her, provided there was ongoing supervision by the Society on specified terms and conditions.

[13] The children were found to be in continued need of protection and a further supervision order was made on February 18, 2015. Since that time, Ms. S, Ke and Ki have been the subject of various orders of supervision with numerous terms and conditions made on: November 9, 2015, August 17, 2016, June 5, 2017, March 26, 2018, January 9, 2019 and January 14, 2020. There have, therefore, been at least eight supervision orders and seven status review applications made in this case since 2014.

[14] At present, the Society continues to have ongoing concerns about the mother’s ability to manage the children’s needs, the children’s mental health, and about Ms. S’s parenting and continued poor mental health. The family was connected to, and remains involved with, a number of support services in an effort to mitigate the continued need of protection for the children while in their mother’s care.

[15] On September 6, 2019, the Minister notified Ms. S. that removal arrangements were being made and that a removal date had been set for October 20, 2019. The Society brought a motion before the Ontario Court of Justice seeking a non-removal order with respect to the two children, Ki and Ke. Ke was represented by counsel at that hearing, which took place on November 27, 2019. The Minister, represented by counsel, was also served with the notice of motion (including all supporting evidence), and was also present at the hearing. All parties agreed that the Minister should have the right to make submissions on the Society’s non-removal motion. At the hearing, the Minister was permitted by the Court to make submissions on the order sought.

[16] Justice Spence granted the non-removal order in reasons dated December 19, 2019.

[17] The Society brought a further status review application which was heard on January 14, 2020. At that time, the Ontario Court of Justice made a further six-month supervision order on consent, placing the children with Ms. S on specified terms and conditions. The Minister did not attend on or take any position at that application.

[18] The current status review application, seeking a further six-month supervision order, was originally returnable in July 2020, although the application was subsequently adjourned for various reasons, including the present motion and appeal.

[19] In September 2020, the Minister requested that it be provided with a copy of the pleadings, as well as the proposed Statement of Agreed Facts, in the current status review proceeding. The Society was not prepared to accede to this request. Accordingly, in October 2020, the Minister advised that he intended to bring a motion for an order requiring disclosure of this documentation.

[20] The Minister subsequently served an amended notice of motion in late January 2021, seeking an expanded array of prior court applications and supporting material. The motion proceeded before the motion judge on March 9 and 12, 2021 and, as noted earlier, her decision granting the relief sought, in part, was released on April 1, 2021.

Analysis

Standard of Review

[21] The standard of review on appeal is set out in Housen v. Nikolaisen, 2002 SCC 33. The standard of review on a question of law is correctness. Jurisdiction is a question of law. The standard of review on a question of fact is palpable and overriding error. For questions of mixed fact and law, the standard of review is also palpable and overriding error unless there is an extricable question of law, in which case the standard of review on that extricable question is correctness.

[22] Failure to afford adequate procedural fairness, of which bias/lack of impartiality are a subset, is an error of law.

[23] The standard of review of a decision involving the exercise of discretion is whether the decision maker committed an error in principle or was plainly wrong. Reversing a lower court’s discretionary decision may also appropriate where the lower court gives no or insufficient weight to relevant considerations: Penner v Niagara (Regional Police Services Board), 2013 SCC 19, para 27.

Statutory Framework

The IRPA

[24] Before turning to the specific issues on appeal, I will summarize key elements of the relevant statutory framework.

[25] Section 50(a) of the IRPA provides that a removal order is stayed if a decision that was made in a judicial proceeding — at which the Minister “shall be given the opportunity to make submissions” — would be directly contravened by the enforcement of the removal order.

[26] Section 36 (1)(a) of the IRPA provides that a permanent resident or a foreign national is inadmissible on grounds of serious criminality for having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.

The CYFSA

[27] Section 1(1) of the CYFSA, which governs child protection proceedings, sets out the paramount purpose of the Act, which is to promote the best interests, protection and well-being of children.

[28] Section 1(2) sets out additional purposes of the Act, so long as they are consistent with the best interests, protection and well-being of children; these include recognition that, that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

[29] Section 35(1) sets out the functions of a children’s aid society, which includes supervising children assigned to its supervision under the Act.

[30] Section 74(3) sets out what a person must consider when directed to make an order or determination in the best interests of a child under Part V (Child Protection) of the Act. This analysis includes first considering the child’s views and wishes, special cultural considerations if the child is First Nations, Inuk, or Metis, and any other relevant circumstance (which includes enumerated circumstances to be considered as part of the analysis).

[31] Section 78(1) provides that a child may have legal representation at any stage in a proceeding under Part V of the CYFSA, and s. 78(2) requires a court to consider, as soon as practicable after commencement of the proceeding and may at any later stage in the proceeding determine whether legal representation is desirable to protect the child’s interests. Section 78 also provides specific criteria for when legal representation is deemed to be desirable to protect the child’s interests.

[32] Section 101(1) sets out that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under s. 102, in the child’s best interests; those enumerated orders include an order of supervision. Section 101(7) provides for the terms and conditions that may be imposed when making an order of supervision under the Act.

[33] Section 113 sets out who must or may apply for a review of the child’s status, and who is entitled to notice of that application, and s. 114 of the Act sets out the powers of the court when an application for status review is brought.

The FLR

[34] Rules 1 and 2 of the FLR set out, in part, the proceedings to which the rules apply, the court’s power to make certain procedural orders, and matters of interpretation. Most significantly, Rule 2 establishes that the primary objective of the rules is to enable the court to deal with cases justly, what that means, and the parties’ and their counsels’ duty to help the court to promote the primary objective of the rules.

Parties and rights to participate

[35] Section 79(1) of the CYFSA identifies the statutory parties to a proceeding under the Act, who has a right to participate in a hearing, and who is entitled to notice of a proceeding under the Act.

[36] Section 79(3) entitles any person, including a foster parent, who has cared for the child continuously during the six months immediately before the hearing, to the same notice of the hearing as a party, and permits the person to be present at the hearing, represented by a lawyer, and make submissions to the court, but clarifies that this person shall take no further part in the hearing without leave of the court.

[37] A child who is the subject of a proceeding is not a party to the proceeding. Despite this, s. 79(4) provides that a child twelve years of age or more who is the subject of a proceeding under this Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.

[38] Section 79(5) specifically provides that a child who receives notice of a proceeding under Part V or has legal representation in a proceeding is entitled to participate in the proceeding and to appeal under section 121 as if the child were a party.

[39] Rule 7 of the FLR also clarifies who is a party to a case or a motion, including affected parties to a motion, and Rule 7(5) provides for who may be added as a party to a case or motion.

Disclosure/Information

[40] Sections 130-132 of the CYFSA permit a society, by motion, application, warrant or telewarrant to obtain production of records or part of a record that may be relevant to a child protection proceeding.

[41] Rules 19 and 20 of the FLR govern the disclosure of documents, questioning of a witness and disclosure of information in family law cases. Rule 20(3) states that in a child protection case, a party is entitled to obtain information from another party about any issue in the case by questioning the other party or by affidavit or by another method, in which case the party shall serve the other party with a request for information.

[42] Under Rule 20(5), in a child protection case the court may order that a non-party be questioned by a party or disclose information to a party, if it would be unfair for the party who wants the questioning or disclosure to carry on the case without it, the information is not easily available by another other method, and the question or disclosure will not cause unacceptable delay or undue expense.

[43] Rule 19(11) further provides an avenue to obtain documents from a non-party, on motion with notice served on every party and on the non-party by special service.

Confidentiality

[44] Subrules 20(24-26) of the FLR place limits on the use of any information obtained under Rules 13, 19, or 20. More specifically, Rule 20(24) provides that when a party obtains evidence under this rule, rule 13 (financial disclosure) or rule 19 (document disclosure), the party and the party’s lawyer may use the evidence and any information obtained from it only for the purposes of the case in which the evidence was obtained, subject to the specific exceptions in subrule (25), or if the court, on motion, gives a party permission, provided the interests of justice outweigh any harm that would result to the party who provided the evidence.

[45] Section 87 (4) of the CYFSA sets out that a hearing shall be held in the absence of the public, subject to subsection (5), unless the court orders that the hearing be held in public after considering both the wishes and interests of the parties; and whether the presence of the public 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.

[46] Section 87(8) of the CYFSA sets out that 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.

Jurisdiction

(a) Opportunity to Make Submissions

[47] It is important to note at the outset that all parties to the child protection proceedings, as well as the intervenor, CARL, desire that Ms. S and her children should enjoy the obvious benefit to them of s. 50(a) of the IRPA. For this reason, the parties have previously consented to, and continued to consent to, the Minister being represented by counsel and attending at the hearing to make submissions. They take no issue with the motion judge’s decision to grant standing to the Minister or to entertain his motion under Rule 14(2) of the FLR. The disagreement is over the scope and content of the submissions the Minister can make, and the extent of the information, if any, required by the Minister to make those submissions.

[48] The appellants argue that the motion judge erred in law when she accepted that s. 50(a) of the IRPA required the Minister to make “meaningful” and “informed” submissions. This finding, they say, was predicated on the belief that the Minister’s submissions could only be “meaningful” if the Minister was permitted to make substantive submissions on any aspect of the order being sought in the child protection proceedings, rather than confining himself to information regarding the immigration proceedings already within his knowledge.

[49] The appellants argue that s. 50(a) does not include language about the submissions being “meaningful” or “informed”, or what that might constitute. Section 50(a) simply states that, where the effect of a removal order is such that, if enforced, it would directly contravene another court order, it is stayed provided the Minister had the opportunity to make submissions before the court making the order that would be contravened. Nothing in s. 50(a) provides that the Minister should be entitled to make submissions beyond the scope of the Minister’s own knowledge or interest. No existing jurisprudence suggests a different reading of that section.

[50] Thus, the appellants argue, s. 50(a) speaks to only one circumstance in which a removal order must be stayed: where the Minister has been afforded the opportunity in a court to make submissions, and the order made would be contravened by a removal, a stay is automatically triggered. Section 50(a) merely ensures that courts do not make orders without knowing of the existence of a pending removal order. It may be that once the parties and court become aware of the pending removal order, they may proceed differently. However, should the court make the order with knowledge of the removal order after the Minister makes his interest clear, then the stay is triggered.

[51] Specifically, the appellants argue that the Minister has no right to make submissions, nor is there any need for the Minister to make submissions, on whether the orders sought from court are bona fide orders based on a real and existing lis between the parties as to the continuing need for protection and to preserve the integrity of the family unit.

[52] There is no disagreement about the duty and responsibility of the court hearing a status review application. In Catholic Children’s Aid Society of Metropolitan Toronto v. C. M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, the Supreme Court of Canada wrote, at para. 25 that, “The procedural steps and safeguards which govern the entire process under the Act, including the status review hearing, must always be construed in light of the clear purposes of s. 1.” The court went on to state in paras. 35-36, in discussing the test on a status review:

It is clear that it is not the function of the status review hearing to retry the original need for protection order. That order is set in time and it must be assumed that it has been properly made at that time. In fact, it has been executed and the child has been taken into protection by the respondent society. The question to be evaluated by courts on status review is whether there is a need for a continued order for protection …. The question as to whether the grounds which prompted the original order still exist and whether the child continues to be in need of state protection must be canvassed at the status review hearing. Since the Act provides for such review, it cannot have been its intention that such a hearing simply be a rubber stamp of the original decision. Equal competition between parents and the Children's Aid Society is not supported by the construction of the Ontario legislation. Essentially, the fact that the Act has as one of its objectives the preservation of the autonomy and integrity of the family unit and that the child protection services should operate in the least restrictive and disruptive manner, while at the same time recognizing the paramount objective of protecting the best interests of children, leads me to believe that consideration for the integrity of the family unit and the continuing need of protection of a child must be undertaken.

[53] The appellants argue that because of this heightened scrutiny in child protection proceedings (as distinct from domestic proceedings where the parents, for example, might collude in bringing about an order on consent that is intended to thwart an otherwise valid and existing federal removal order) and because the Society is effectively an arm of the state, having been created by and exercising powers conferred upon it by the Legislature, there is simply no role for the Minister, and no need for his input, on any of the substantive issues involved in this application.

[54] The motion judge rejected these arguments. The motion judge concluded that the Minister was entitled to make submissions on any issue that fell within the scope of the Minister’s legitimate interest, and that whether there was a genuine child protection lis in the Ontario Court of Justice proceedings falls within the scope of that legitimate interest. She found support for this approach in the decisions of the Court of Appeal for Ontario in J.H. v. F.A., 2009 ONCA 17 and in prior decisions of the Ontario Court of Justice, including: Spence J. in CCAST v. SKS, 2019 ONCJ 899; Jones J. in Office of the Children’s Lawyer v. N.N.D., Ruling of the Honourable Carolyn C. Jones, Ontario Court of Justice, dated October 9, 2014 (unreported); and Starr J. in Children’s Aid Society, Region of Halton v. M.M., 2016 ONCJ 237.

[55] The decision of the Court of Appeal for Ontario in J.H. v. F.A. requires special attention. J.H. involved a non-removal order made by the Ontario Court of Justice in the context of an application for custody, where the applicant mother was subject to a federal immigration removal order. In that case, as found by the Court of Appeal, there was no family law dispute with respect to custody between the parents. There was no suggestion that any of the parties had any interest in removing the children from Ontario. The non-removal order, the Court of Appeal found, was not aimed at the parents of the child but at the Minister of Public Safety and Emergency Preparedness. The purpose of non-removal orders under what was then the Children’s Law Reform Act “is not to frustrate the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation but to prevent parents from removing children from the jurisdiction in contested family law proceedings”. The Court of Appeal referred, with approval, to the decision of the Federal Court of Appeal in Idahosa v. The Minister of Public Safety and Emergency Preparedness, 2008 FCA 418, where Evans J.A. held at para. 59 that s. 50(a) of the IRPA “does not apply to a provincial court’s order awarding custody to a parent of Canadian-born children for the purpose of delaying or preventing the enforcement of a removal order against the parent, where there is no lis respecting custody that is unrelated to the removal”.

[56] The motion judge specifically rejected the submission that so-called “domestic” case law, such as the J.H. case, is irrelevant in the context of a child protection application. She concluded, in para. 37 of her decision:

I find that both the domestic and child protection case law provide support for the Minister’s position that he should be permitted to make meaningful submissions including the existence of a genuine lis between the parties.

[57] I am unable to find any error of law in the motion judge’s interpretation of s. 50(a) of the IRPA or her assessment of the Minister’s ability to address matters falling within the scope of the Minister’s legitimate interest. The appellants’ attack on the motion judge’s concern that the Minister be permitted to make “meaningful” submissions is particularly troubling. What do the appellants want – that the Minister be limited to making un-meaningful submissions? It seems that perhaps this is so.

[58] The Court of Appeal for Ontario recognized that the Minister, under s. 50(a), had a legitimate interest in whether the proceedings giving rise to the potential for a stay of a valid federal removal order, involve a genuine lis: J.H. v. F.A., at para. 15. While I agree with the appellants that, in child protection proceedings, it is for the court alone to determine whether a protection order is warranted, I do not agree that this necessarily means “domestic” case law is irrelevant in the child protection context. The focus on child protection versus domestic in this context misses the point. The issue - that is, the content of the Minister’s “opportunity to make submissions” - is largely defined by the nature of the interest involved, not whether the parties are in a domestic dispute or one with a children’s aid society. The Minister’s legitimate interest in ensuring that the court focuses on the existence of a genuine lis underlying a dispute in proceedings that may give rise to a stay of an otherwise valid removal order can be present in either case.

[59] This is not to say the Minister will always be able to establish this interest, or that in every child protection case involving the potential for federal removal orders, the Minister will be entitled to a disclosure order. What process is fair, and what process gives appropriate content to the expression “opportunity to make submissions”, must be determined contextually. The process is directly analogous to the process for determining the content of the need for procedural fairness established in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, which includes:

(i) the nature of the decision being made and the process followed in making it;

(ii) the nature of the statutory, institutional and social context;

(iii) the importance of the decision to the parties and interests affected; and

(iv) legitimate expectations.

[60] The motion judge was acutely, and appropriately, alive to these considerations. At paras. 55 and 56 of her decision she wrote:

55. The court would fail in its duty of fairness and responsibility to the administration of justice if the Minister was limited in the manner requested by the parties. In fact, the parties ask to put such severe restraints on the Minister’s submissions that he would be left only with the opportunity to tell me what I already know; that the mother and older child are subject to a deportation order.

56. I therefore reject the parties’ argument that the Minister’s right to make submissions before this court should be severely restricted as I find doing so would be contrary to the children’s best interests and to the administration of justice.

[61] The motion judge was correct in her interpretation of s. 50(a) of the IRPA, to the extent that she found the nature of the Minister’s legitimate interest is the basis for determining the content of the required “opportunity to make submissions”. Determining the specific order or orders necessary to give rise to effective or “meaningful” submissions, however, involved the exercise of discretion. Subject to the next argument, addressed below, the motion judge committed no error of principle, and was not clearly wrong, in making the specific orders in this case that she did.

(b) Jurisdiction to Order Disclosure to a Non-Party

[62] I will now turn to the second argument the appellants characterize as exceeding the motion judge’s jurisdiction: whether the motion judge possessed the statutory authority to make the specific disclosure order she did.

[63] In the court below, and in this Court, the Society conceded that while the court had, under the broad powers conferred under s. 1 and s. 101(7) of the CYFSA, the ability to order a party to provide disclosure to a non-party, there must always be a connection to the paramount purpose of the Act in doing so (for example, where a party is ordered to provide a medical report regarding the child to a treatment professional or caregiver of the child). In this case, there is in the Society’s submission, no such nexus. The Society asserts that the Minister’s purpose in seeking disclosure is not to further the best interests of the children but to further the deportation of Ms. S and Ke.

[64] The OCL goes further. Essentially, counsel for the OCL argues that the Ontario Court of Justice is a statutory court. As such, it lacks inherent jurisdiction. Further, she submits that neither the Court’s enabling legislation, the Courts of Justice Act, nor the relevant statute it administers in this case, the CYFSA, provide express authority for the disclosure of confidential child protection documents to a non-party. Nor do the FLR, which apply to the parts of the CYFSA relevant to this case, confer such authority.

[65] Again, the motion judge rejected these arguments. She found that, while the CYFSA did not expressly authorize the grant of the relief sought by the Minister, it did not expressly prohibit such an order either. Section 87(4) provides that child protection proceedings shall be private unless the court orders otherwise after considering the wishes and interests of the parties. There is no absolute prohibition against members of the public being present in child protection proceedings. Nor is there an absolute prohibition against ordering a children’s aid society to disclose documents to non-parties. As noted earlier, the motion judge also cited existing jurisprudence of the Ontario Court of Justice in which disclosure orders had been made in favour of third parties. The prohibition against the publication of identifying information applies to the Minister as well an anyone else, and orders prohibiting copying or using the documents for any purpose other than making submissions under s. 50(a) further protects the parties to the child protection proceedings.

[66] The motion judge also considered the primary objective of the FLR, set out in Rule 2. The primary objective of the FLR is to enable the court to deal with cases justly. This includes ensuring that the procedure is fair, saving expense and time, dealing with cases in ways that are appropriate to their importance and complexity and using court resources appropriately. Rule 1(7.2) of the FLR also provides that, for the purposes of promoting the primary objective of the rules, the court may make orders “giving such directions or imposing such conditions respecting procedural matters as are just, including” an enumerated list of specific instances.

[67] After citing the Court of Appeal’s reasons in J.H v. F.A., the motion judge wrote, in paras 116 and 117:

116. The case before me demonstrates the importance of statutory courts being empowered to control its process as it involves managing the interests of the parties, promoting the best interests of the children and controlling the involvement of a third party with a legitimate interest who represents the Canadian government and answers to the public. This court must be authorized to make orders necessary to allow it to carry out its duties in circumstances that are clearly not contemplated by the legislation governing the proceeding.

117. In order for me to carry out my duties, I must be permitted to make orders pursuant to Rules 1 and 2 of the FLR to allow for the Minister, as a party with a genuine interest in this case, to make meaningful submissions on the issue of a genuine lis as no other party will make submissions that align with the Minister’s interests. In order for the Minister to be able to make informed submissions, he may require disclosure from the Society. I find that subrule 1(7.2) of the FLR provides this court with the authority to grant the relief the Minister is seeking with respect to disclosure in order to control the progress of this case, carry out the court’s duties, and ensure the procedure is fair to all involved.

[68] I can find no error in the motion judge’s conclusion that, as a matter of law, she had jurisdiction to order production of relevant documentation to a third party in appropriate circumstances. The scope of the disclosure order, and its terms and conditions, fall within the exercise of discretion available to the motion judge in a case conference, particularly where she would be hearing the motion. Her order discloses no error of principle and the appellants have not convinced me that, in making this order, she was clearly wrong.

[69] Particular complaint is made by the appellants about the order for production of future supervision applications in this case. This is an unusual case. There have been, to date since 2014, no less than seven applications for orders continuing the Society’s supervision – none opposed. The motion judge’s order specifically leaves open the reconsideration of her order regarding disclosure of future applications. I am not convinced that this limited order regarding future applications was improper in the circumstances.

Impartiality/Bias

[70] Apart from one motion heard by Spence J. on November 27, 2019, concerning the Society’s motion for a non-removal order, the motion judge presided over all attendances in these child protection proceedings, including case conferences. During a prehearing case conference on December 22, 2020 (in advance of the return date for the Minister’s disclosure motion), the motion judge expressed a concern that refusing to give the Minister any disclosure would make it impossible for his counsel to make meaningful submissions and that, if the Minister was denied the opportunity to make meaningful submissions, the Minister would be able to argue before the Federal Court that any supervision order made by the family court could not operate as a stay of the immigration removal order under s. 50(a). Both in this case and in other child protection proceedings in which the Minister has been involved, there is some history of cooperation between the parties and of disclosure of certain material to the Minister’s counsel. The motion judge urged the parties to reach an agreement on the provision of some disclosure to the Minister.

[71] At the time, counsel for the OCL said she was “a bit concerned” that the motion judge had “expressed an opinion on the outcome of the motion”. The motion judge responded, saying that this was “quite premature” and that all she had done was flag the central issue of concern to her on the pending motion.

[72] The OCL now argues that in conducting settlement discussions regarding the Minister’s motion for disclosure and offering an opinion at the conference on the central issue in dispute, the motion judge violated rule 17(24) of the FLR by hearing the motion.[^1] Accordingly, the OCL asks that the decision of April 1, 2021 be set aside on grounds of bias or lack of impartiality.

[73] There are two aspects to this argument. First, did this conference, in substance, involve settlement negotiations? I am not satisfied it did. Telling the parties that because the central issue in dispute was a matter first impression and of uncertain outcome, and then encouraging the parties to reach an accommodation (particularly where the Minister had already been provided with a certain amount of disclosure over the history of these proceedings on consent), does not amount to the conduct of settlement negotiations. Nor was there, in fact, any material exchange of compromised positions that could tilt the possible outcome or create prejudice to a party’s legal position later in the proceedings.

[74] Second, I do not interpret the motion judge’s statements as any kind of predetermination. Her statements were not evidence of a predetermined mind but, rather, an expression of her concerns; in other words, they were an attempt to focus counsel’s minds on what she perceived as the central issue in dispute and what was troubling her about it. Judges do this kind of thing all the time as a way of focusing counsel’s attention on the court’s issues of concern.

[75] The purpose of Rule 17(24) is to foster settlement, to avoid an apprehension of bias and to maintain the appearance of fair, impartial proceedings. In the circumstances of this case, the motion judge’s statements did not undermine the sanctity of without prejudice settlement discussions. Nor could the motion judge’s statements reasonably lead to the conclusion that the motion judge had made up her mind on the central issue.

Conclusion

[76] For the foregoing reasons, the appeals are dismissed.

Costs

[77] No party sought costs of the appeal and so no costs are awarded. However, Horkins J. reserved, to the judge hearing the appeal, the costs of an earlier motion, which she dismissed, by the Minister seeking to exclude all evidence of the December 22, 2020 case conference. The OCL seeks its costs of responding successfully to the Minister’s motion in the amount of $2,466.65.

[78] The Minister submits that the general rule under Rule 24 – a presumption that a successful party is entitled to the costs of a motion – does not apply in a child protection case or to a government agency (Rule 24(2)). Rather, in the case of a government agency, an order for costs is discretionary, to be made without the benefit of any presumption.

[79] Both parties make allegation of improper conduct against the other in the way this issue came about and how it came before the court.

[80] I make no finding of impropriety of any kind about anyone. The OCL alleged, as a ground of appeal, bias or lack of impartiality on the part of the motion judge arising out of the December 22, 2020 case conference. This engaged issues about the nature of the conference and whether statements of the motion judge at the conference constituted evidence of a pre-determined mind. The OCL was entitled to make these allegations/submissions. Although I did not accept the OCL’s position, it was not frivolous or made in bad faith. As Horkins J. found in her June 1, 2021 endorsement dismissing the Minister’s motion to exclude this evidence, “the court will require the transcript to assess and decide this ground of appeal” and “where bias, apprehension of bias or procedural fairness are raised, transcripts are typically part of the appeal record.”

[81] I agree with Horkins J. The Minister’s motion was, it seems to me, doomed to fail. For this reason, although there is no presumption in this regard, I award the OCL its costs of the motion before Horkins J. in the amount of $2,466.65.

Penny J.

Released: September 13, 2021

COURT FILE NO.: FS- 21-22782

DATE: 20210913

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

(Appellant)

– and –

S.K.S., M.C. and T.N.

(Respondents)

– and –

CANADIAN ASSOCIATION OF REFUGEE LAWYERS

(Intervenor)

REASONS FOR JUDGMENT ON APPEAL

Penny J.

Released: September 13, 2021

[^1]: Rule 17(24) provides that a judge who conducts a settlement conference about an issue shall not hear the issue.