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 NO.: FC-16-2381-1
DATE: 2021/11/01
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 J.M.
BETWEEN:
Children’s Aid Society of Ottawa
Applicant
– and –
K.T.
E.M.
J.W.
Respondents
Mark Hecht, for the Applicant
Self-represented
Dominique Smith, for the Respondent E.M.
Enoch Anekwe, for the Respondent J.W.
HEARD: October 19, 2021
endorsement
engelking J.
[1] There are two motions before the court. The first is a motion brought by E.M. and supported by K.T. for an order removing J.W. as a party to the proceedings. The second is a motion brought by J.W., should he remain a party, to have access to or care of the child, J.M.
[2] K.T. gave birth to J.M. in January of 2020; J.M. is now one year and 10 months old. K.T. is transgendered and identifies as male. K.T.’s partner, E.M. is also transgendered and identifies as female. J.M. has been in the care of K.T. and E.M. since his birth.
[3] J.W. is J.M.’s biological father. He has never met J.M. and has no current relationship with him.
[4] K.T. and J.W. were in an on and off relationship between 2011 and 2013 or 2014, which K.T. alleges to have been emotionally and sexually abusive.
[5] Subsequently, K.T. began his relationship with E.M. In 2016, K.T. and E.M. had a child together, F.T. (or F.W.), who unfortunately passed away on December 25, 2017.
[6] According to K.T. and E.M., they have always wanted children together but have experienced difficulties conceiving.
[7] In April of 2019, K.T. and J.W. reconnected, met up and had sexual relations, which K.T. alleges were coerced. J.W. confirms that he and K.T. had sexual relations in the spring of 2019, but he steadfastly denies K.T. was coerced into doing so. At this time, K.T. became pregnant. Due to their conception difficulties, K.T. and E.M. wanted to keep and raise the child. K.T. informed J.W. that he was likely the father of the expected child, which J.W. did not accept.
[8] J.M. was born in January of 2020. In April of 2020, a paternity test was done which confirmed that E.M. was not the biological father of J.M. K.T. informed J.W. of this, but according to K.T., he still did not accept that he may be J.M.’s father.
[9] On one occasion in the spring of 2020, K.T. and E.M. approached J.W. to assist them by purchasing a container of baby formula, which J.W. ultimately did. J.W. has not provided any further assistance to K.T. and E.M., nor has he paid any support for J.M. In June of 2020, K.T. sent J.W. a few photographs of J.M., however, he still maintained at that time that he was not J.M.’s father.
[10] In July of 2020, J.W. participated in paternity testing and it confirmed that he was the biological father of J.M. From the time that J.W.. understood that he was J.M.’s father, he has been requesting to see him and be involved in his care. K.T. and E.M. have steadfastly refused J.W. to have any role in J.M.’s life.
[11] In January of 2021, J.W. brought an application in Family Court in an effort to have some parenting time with J.M. and to ensure that he is listed on the child’s birth certificate. However, the Society subsequently brought a Protection Application seeking a finding that J.M. is a child in need of protection and an order placing him in the care of J.T. and E.M. subject to the supervision of the Society on certain terms and conditions for a period of six months.
[12] Subsection 79(1) of the Child, Youth and Family Services Act[^1] outlines who are parties to a proceeding under Part V of the Act, and it includes “3. The child’s parent”. A parent is defined under Subsection 74(1) and includes: “2. In the case of a child conceived through sexual intercourse, an individual described in one of paragraphs 1 to 5 of subsection 7(2) of the Children’s Law Reform Act[^2], unless it is proved on a balance of probabilities that the sperm used to conceive the child not not come from the individual.”
[13] J.W. is undoubtedly the biological father of J.M.; he, therefore, falls within the definition of a parent in the Act, and he is presumptively a party to the proceedings.
[14] E.M. and K.T. seek to have him removed as a party based on: a) J.M. having been conceived as a result of coercion; b) J.W. having no relationship with J.M.; and, c) J.W. having provided no support for J.M.
[15] J.W. having provided no support for J.M. to date has no effect on his status as a party to the CYFSA proceedings. The appropriate remedy for that issue lies within J.W.’s Family Court application (and K.T.’s response thereto), which is currently stayed due to this proceeding having been commenced.
[16] With respect to J.W. having no relationship with J.M., it is not logical for E.M. and K.T. to rely on this state of affairs when they have been preventing J.W. from having any such relationship. Indeed, the evidence demonstrates that J.W. has been asking K.T. to see/meet/visit with J.M. from at least August of 2020, after his fatherhood was confirmed by paternity testing, pretty much to the present. In fact, J.W. text messaged K.T. almost daily requesting to meet J.M. throughout the fall of 2020 until he received responses from an unknown number telling him to stop contacting K.T., and stating he would not be “seeing our son J.” One of the messages stated: “if you are really serious about being a part of his life contact his lawyer”, meaning presumably K.T.’s lawyer. Notwithstanding that J.W. has had legal counsel for more than a year, filed a Family Court application for parenting time with J.M. and has filed an Answer and Plan to these proceedings, he has still not been afforded the opportunity by K.T. and E.M. to meet J.M. or to develop a relationship with the child. Under these circumstances, and despite their efforts to do so, K.T. and E.M. cannot rely on J.W. having no relationship with J.M. as a ground to remove him as a party to this proceeding.
[17] What is left, then, is K.T.’s allegation that J.W. coerced him into sexual relations, the result of which was the pregnancy with J.M. E.M. and K.T. rely on the case of Children’s Aid Society of Toronto and L.O and M.O., 2003 4402 (ON CJ) in support of their position that J.W. should be removed as a party to this proceeding. That was a case in which the mother of a child, Ma. O., was seeking an order to dispense with service of Society’s Protection Application on the father. The court concluded that it did not have jurisdiction to dispense with service outside of Rule 6(16) of the Family Law Rules[^3], but it did have jurisdiction to remove the father as a party to the proceedings. The question posed in that case by Justice Spence was: “Do the facts of this case warrant a finding that it is contrary to Ma. O.’s “best interests, protection and well-being” that his father be a party to these proceedings.” After finding that the facts did indeed warrant such a finding, Justice Spence considered the court’s jurisdiction to make an order removing the father as a party. At paragraphs 28 and 29, Justice Spence stated the following:
[28] the Act is remedial legislation. Its purpose is to ensure that children are protected from ham. Therefore, a court cannot judicially sanction any process that would expose a child to genuine risk of harm by proceeding in a a manner that is otherwise provided for by the Act. If indeed the paramount purpose of the Act is the protection of children from that genuine risk of harm, then everything else in the legislation must be interpreted by the court , and acted upon, in such a manner so as not to subvert that paramount purpose.
[29] In this case, the effect of section 1 prohibits me from taking any inappropriate risks with Ma. O.’s well being. In arriving at my decision I am further aided by the wording of rule 7 of the Rules, which state (my emphasis added):
(3) Persons who must be named as parties. – A person starting a case shall name,
(b) as a respondent,
(ii) every person who should be a party to enable the court to decide all the issues in the case.
[18] Justice Spence found that the father, by his own actions, had long before relinquished his role as a parent to Ma. O., and that when he did spend time with the child, “his most significant contribution to his son was the trauma and abuse he inflicted upon him.” The father had also not complied with his court-order obligation to support Ma. O. Justice Spence stated at paragraph 31:
In the face of these facts, how can I possibly conclude that naming the father as a party is necessary “to enable [me] to decide all the issues in the case? Quite simply, there is nothing that the father could add to the evidence already presented that would assist me in deciding the two issues in the substantive child protection litigation, namely, whether Ma. O. is a child in need of protection and, if so, what is in his best interests.
[19] Justice Spence concludes at paragraph 32 that while the court has jurisdiction to make the order removing the father as a party to the proceedings, to do so is an “extreme step”, and one that should only be taken in “the rarest of cases and clearest of circumstances”. He goes on to state: “The evidence supporting such a request should be compelling, as well as corroborated by reliable sources – whether other individuals or documentation.”
[20] In Children’s Aid Society v. S.B. and C.G., 2018 ONSC 5301, Justice Audet states at paragraph 9 that she concurs with the line of cases which conclude “that courts do not have jurisdiction pursuant to the CYFSA or to the Family Law Rules to remove a parent as a party to a child protection proceeding (to be distinguished from the request to disqualify a parent under the relevant legislation).” Justice Audet finds at paragraph 12 that “to remove the father as a party to this protection application based solely on the mother’s untested affidavit evidence would be, in my view, to pre-judge the father on these alleged events without giving him an opportunity to respond to these allegations and to provide his own version of events. This would be a serious denial of natural justice, and one that can be avoided through other protective measures available to the mother and this Court.”
[21] If, as Justice Spence has found, the court has jurisdiction to remove a party from a CYFSA proceeding, I agree that it must be done cautiously and only in the clearest of circumstances and on the most compelling evidence. This is not such a case. Unlike in L.O and M.O, J.W. has not “by his own actions” relinquished his role as a father; rather, he has been permitted no such role by the actions of K.T. and E.M. Further, J.W. contests K.T.’s allegation that he was coerced into sexual relations with J.W. K.T.’s allegation is just that at this stage of the proceeding, an allegation. It has not been tested through viva voce evidence and cross-examination, nor has it been corroborated by other reliable individual or documentary sources. There is, in fact, evidence in J.W.’s affidavit, particularly Exhibit “B” thereto, being text message exchanges between K.T. and J.W. in May of 2019, which suggest that they may have been involved in a consensual relationship, including a consensual sexual one. At this stage of the proceeding, nothing has been proven and no findings have yet been made in this regard. J.W. is, moreover, not in breach of any order for child support, nor has any evidence been led that he has or would cause harm to J.M.
[22] To exclude J.W. from participating in this proceeding would do a disservice to J.M. and his options for the future, including the option of having a relationship with, or perhaps even being cared for by, his father. J.W. has filed an Answer and Plan to the Society’s application in which he has put forward his own plan of care for J.M. His participation is necessary to enable the court “to decide all of the issues in the case”. Even if the court has jurisdiction to do so, removing J.W. as a party in this case would, in the words of Justice Audet, constitute a “serious denial of natural justice.”
[23] The motion of E.M. is, therefore, dismissed.
[24] With respect to J.W.’s motion for placement of or parenting time with J.M., subsection 104(1) of the CYFSA provides that the court may, when making an order under Part V of the Act, make, vary or terminate an order respecting a person’s access to a child in the child’s best interests. J.W. seeks an order that he have interim parenting time with J.M., or in the alternative, that J.M. be placed in his interim care subject to the supervision of the CAS. As has been indicated, J.W. currently has no relationship with J.M. There is an existing without prejudice order placing J.M. in the care of K.T. and E.M. subject to the supervision of the CAS. Absent evidence of that not meeting his needs, which I do not have, I would not contemplate uprooting J.M. from their care to place him in that of J.W. Bearing in mind the criteria of subsection 74(3) of the Act, I do, however, find that it would be in the best interests of J.M. to foster a relationship between him and his father. No evidence has been led which would cause the court to conclude that J.W. would present any risk to J.M. J.W.’s interactions with K.T., as evinced by the text messaging included in the documentation, are respectful on their face. Additionally, the three affidavits filed by the Society, being those of March 15, 2021, July 14, 2021 and August 6, 2021, contain no negative information about J.W.; indeed, but for identifying him as J.M.’s biological father, they contain barely any information about him at all. But for K.T.’s bold assertions that his relationship with J.W. was emotionally and sexually abusive, which J.W. adamantly denies, neither his nor E.M.’s affidavits contain any information negating J.W.’s ability to form a relationship with or care for his child.
[25] I, therefore, find that it is in J.M.’s best interests to have access with J.W. and I order that commencing the week of November 1, 2021, J.W. shall have access to J.M. a minimum of two times per week for a minimum of two hours per visit. I have received no evidence which would support that such access needs to be supervised, however, given that J.M. does not know J.W., I would expect the first two visits to take place at and be arranged through the Society. Thereafter, the parties shall agree, with the Society’s assistance, if necessary, on the days and times for the visits to occur.
[26] The matter is adjourned to November 23, 2021 at 10:00 a.m. to be spoken to and determine next steps.
Engelking J.
Released: November 1, 2021
COURT FILE NO.: FC-16-2381-1
DATE: 2021/11/01
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 J.M.
BETWEEN:
Children’s Aid Society of Ottawa
Applicant
– and –
K.T.
E.M.
J.W.
Respondents
Endorsement
Engelking J.
Released: November 1, 2021
[^1]: S.O. 2017, c.14, schedule 1, as am [^2]: R.S.O. 1990, c.C.12, as am [^3]: O. Reg. 114/99 as am