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-15-57-6

DATE: 2023/02/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

C.D., R.B., and D.B. (Mohawks of the Bay of Quinte)

Respondents

Counsel:

Tara MacDougall, for the Applicant

Dominique Smith, for the Respondents

Alexandra Kirschbaum, for the Office of the Children’s Lawyer

Cedric Nahum, for the Foster Parents

HEARD: January 20, 2023

Endorsement

Audet J.

[1] On January 20, 2023, the parties appeared before me to argue the issue of the Office of the Children’s Lawyer’s (“OCL”) request to have the children’s wishes and preferences placed before the court by counsel without the need for a clinician’s affidavit, in the context of the summary judgement motion to be heard on February 23, 2023.

[2] Ultimately, the OCL abandoned this request. Mr. Nahum, counsel for the foster parents, sought his costs for this attendance. He took the position that he was served with motion materials that did not address the issue to be decided on that day, but rather other issues which had not been raised with the parties ahead of time. Further, he took the position the OCL counsel had failed to respond to his communications when he reached out for clarifications. For these reasons, he sought his costs against the OCL for wasting his time.

[3] On the day of the hearing, I indicated that I would not deal with costs, but I would allow the parties to make written submissions on costs if they so wished, in accordance with a timeline that I would set out in my endorsement. This is dealt with below.

[4] On the day of the hearing, Mr. Nahum asked for the February 23, 2023 summary judgment motion to be adjourned to a later date because he is not available on that day. When asked why he was seeking an adjournment (given that the date had been set more than a month ago), Mr. Nahum expressed his view that, when the motion date was set by me during the December 13, 2022 court appearance, his student had informed me that he would not be available on February 23 and I “very inappropriately suggested to her” that he would be required to have an agent appear on his behalf. When I indicated to Mr. Nahum that he ought to have been present with, or available to his student on that day to voice his objections, he responded that indeed he was, that he was speaking with his student on the phone at the time and that she had made it clear, at his instruction, that he was not available but that I had “insisted anyways”.

[5] Mr. Nahum added that when counsel have students appear in court “and the court bullies them into accepting dates where counsel are not available”, they can no longer use students for this purpose and “it’s going to cause significant problems when the court behaves in this manner”. Mr. Nahum finally argued that the motion to be heard was a summary judgment motion, and that his clients were entitled to have counsel of their choice represent them in the context of such an important hearing.

[6] The Children’s Aid Society (“CAS”) and the OCL opposed Mr. Nahum’s adjournment request. Mr. Smith, counsel for the mother, agreed that a party’s ability to be represented by counsel of their choice was very important, and consented to the adjournment request.

[7] I took Mr. Nahum’s request for an adjournment under reserve, to consult my notes on what had actually happened on December 13, and to provide a more considered response to his request, and to the highly inappropriate manner in which he had addressed the Court.

[8] On February 2, 2022, the LAJ for Child Protection, Justice Engelking confirmed with the Child Protection Bar by email via Chief Counsel for the CAS of Ottawa, Ms. Daoust, and the President of the Child Protection Respondent Counsel’s Association, Ms. Naik, that “the Ottawa Family Law judiciary consents to students-at-law appearing in the morning docket of the CYFSA court without the necessity of obtaining the sitting justice’s approval so long as their principal is also available to step in, if necessary. For afternoon matters, the permission of the presiding justice will have to be obtained for a student-at-law to address the court.”

[9] The goal of this new initiative was to allow articling students the opportunity to appear before the court to gain meaningful advocacy experience in child protection court. The goal was never to make students available to child protection counsel to appear alone on their behalf in these important hearings. For that reason, the communication makes it clear that when a student appears before the court in child protection matters, the student’s principal must be “available to step in”.

[10] Mr. Nahum was not present during the December 13 hearing. However, he states that he was “speaking on the phone with his student” and that he was reachable. Mr. Nahum’s understanding of what occurred on that day is entirely incorrect.

[11] On December 13, when the issue of the OCL’s ability to present the children’s views and preferences from counsel’s table was broached, the student appearing on Mr. Nahum’s behalf indicated that she did not have instructions from Mr. Nahum, but that she could send him text messages and get instructions. I explained to the student that while I was very happy to see her in court that day, the protocol for her to do so required Mr. Nahum to also be present in court with her or at least to be reachable at all times. Nonetheless, I allowed her to seek instructions via text messages from Mr. Nahum.

[12] While Mr. Nahum’s student was texting him to get instructions, the parties patiently waiting in court began discussing possible dates for the summary judgment motion. When February 21, 2023 was discussed as a possible date, Mr. Nahum’s student indicated that he had a three-week trial beginning on that day but that he could do the motion on February 20. Since that date was not available to all, additional dates were canvassed for the month of March. During those discussions, Mr. Nahum’s student indicated that he had practically back-to-back trials that would make him unavailable until March 27, thus possibly pushing the hearing of this motion to the month of April.

[13] I then indicated that while the court was happy to accommodate counsel’s busy schedules, there was a point to which it could no longer do that. If Mr. Nahum happened to be busy until the month of April, I indicated that we would need to find some other way to have this summary judgment motion heard. It is important at this juncture to note that the sole issue to be decided at the summary judgment motion is the issue of what access, if any, the mother will have to the children after they are permanently placed (on consent of all parties) with their foster parents.

[14] It was suggested by CAS counsel that if we scheduled this motion at the end of February, it would provide sufficient time for Mr. Nahum to find an agent to argue this motion on his behalf, or alternatively to ask the presiding judge in his trial for the indulgence of being freed up for one hour to deal with this motion in the middle of his trial. At that time, Mr. Nahum’s student indicated that she was sure Mr. Nahum would be agreeable to that. As a result, all parties agreed to schedule the motion for February 23, 2023.

[15] It was only after all these discussions took place that we were informed by Mr. Nahum’s student that he did not consent to the OCL providing the children’s views and preferences to the Court from counsel’s table. At that point, further discussions took place following which I indicated that I would make myself available for a very short motion, at 9 a.m. on any day during the week of January 16, 2023, to deal with this issue prior to the February 23 summary judgement motion. When January 20 was discussed as a possibility, Mr. Nahum’s student indicated that he was available on that day, and so it was scheduled.

[16] As is reflected by the above, if Mr. Nahum had been present on December 13 as required by the protocol regarding students-at-law addressing the court, he could have stepped in to express his objections to the motion proceeding on February 23 himself, instead of putting his student in this unfortunate predicament, and wasting everybody’s time. In addition to Mr. Nahum’s completely false account of what occurred on December 13, his comments to the Court were unprofessional and disrespectful.

[17] Despite all the above, ultimately the question is one of fairness to Mr. Nahum’s clients, which must be assessed having regard to the best interests of the children at the heart of this proceeding. As indicated above, the sole issue to be decided in this summary judgement motion is the access that the children should have to their mother after they are permanently placed in the custody of their current foster parents. Delaying this summary judgement motion by one month or so, while unfortunate, will not result in the children’s permanency planning being delayed.

[18] For those reasons, I agree that the motion, while pressing, is not urgent and that if the foster parents insist on having Mr. Nahum represent them in the context of that hearing, the motion should be adjourned to allow them to be represented by counsel of their choice.

[19] As a result, the following order is made:

1. The summary judgment motion scheduled for February 23, 2023 (at 2 p.m.) is adjourned to a date during the month of April 2023 to be immediately fixed by the parties through Trial Coordination. If the parties are unable to agree on a date, I can be spoken to.

2. Should the foster parents wish to pursue their request for costs against the OCL, or should any of the parties wish to seek their costs against the foster parents as a result of the adjournment of the summary judgment motion, I will accept brief written submissions not exceeding three pages (double-spaced) in accordance with the following timelines:

a. The party(ies) seeking costs shall serve and file their written submissions by February 17, 2023;

b. The responding party(ies) shall serve and file their written submissions by March 3, 2023;

c. Any reply shall be served and filed by March 10, 2023.

[20] Should any of the parties wish to satisfy themselves of the events that transpired during the December 13, 2022 or the January 20, 2023 hearings, a transcript shall be prepared and provided to all parties at the request of any of them.

Madam Justice Julie Audet

Released: February 2, 2023

COURT FILE NO.: FC-15-57-6

DATE: 2023/02/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

C.D., R.B., and D.B. (Mohawks of the Bay of Quinte)

Respondents

Endorsement

Audet J.

Released: February 2, 2023