Children’s Aid Society of Toronto v. W.F., 2014 ONCJ 480

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., 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.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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: CFO-12-10529-B2 DATE: 2012-09-17 Citation: Children’s Aid Society of Toronto v. W.F. , 2014 ONCJ 480 Children’s Aid Society of Toronto - and – W.F. (mother) S.H. (father) Appearances: Ms. Handelman, Counsel for the CAS Mr. Mulholland (agent for Ms. Wendy Rogers), Counsel for the Mother Ms. Thurston, Counsel for the children Mr. S.H., appearing in person

September 17, 2014 Reasons for Decision of Justice H.P. Brownstone On August 18, 2014 I heard a

summary judgment motion in an Amended Protection Application seeking Crown wardship for S.P.F. and D.A.F., born […], 1996. These twin brothers have been in the Society’s temporary care pursuant to a temporary care and custody order made on July 3, 2012, upon their arrival in Canada. The mother took the children to Europe in December 2010 and placed them in a boarding house in the Netherlands in August 2011, and then she returned to Canada but eventually returned to Europe. The children have not been in her custody since then (other than for 4 days during April 2014 when S.P.F. briefly stayed with her).

Prior to leaving Canada, the family lived in Ottawa and there had been sporadic and ongoing involvement with the Children’s Aid Society due to issues of inappropriate discipline and poor supervision. Prior to the children being placed in the boarding house, the family had been involved with the child protection authorities in the Netherlands commencing in January 2011, as set out in the detailed Report of the Haaglanden Youth Care Agency dated November 28, 2011.

As the mother failed to pay the boarding house fees, and as the children were wishing to return to Canada, child protection proceedings occurred in the Netherlands which resulted in a court order on May 15, 2012 returning the children to Canada. The children arrived in Toronto on July 2, 2012, but the mother was still in Europe and did not return to Canada until August 15, 2012. She continues to reside in Ottawa. Her motion to have this proceeding transferred to the Ottawa Family Court was dismissed by Jones J. on August 24, 2012. Since arriving in Canada the children have been residing together in foster care.

They have had sporadic access to their mother but they have consistently refused to live with her (other than S.P.F.’s brief 4-day stay with her last April). The children lost contact with their father as infants, but re-established contact with him on August 29, 2012. They have been having occasional contact with him as they gradually become more comfortable with the renewed connection. The father, who resides in Peterborough, filed no materials in this proceeding and did not present a formal plan to assume care of the children.

However, he took the time to attend the hearing and wanted the court to know that he loves his sons and will be there for them in whatever way he can and in accordance with their needs and wishes. The mother did not file an Answer and Plan of Care in response to the Society’s Amended Protection Application (seeking Crown wardship) issued October 23, 2013. However, she did file an Answer and Plan of Care in response to the original Protection Application (seeking 6 months society wardship), in which she expressed a desire for the children to live with her either in Ottawa or the Netherlands or Louisiana.

This plan contained an astonishing lack of specificity and particulars. In response to the

summary judgment motion, the mother served and filed an affidavit. She seeks to have the children returned to her care, alleging that the Society breached her “Charter rights” by providing confidential information to the Netherlands authorities “in order to prevent me from exercising my constitutional right to raise my children in another country.” During submissions, the mother’s counsel was unable to provide the court with any further elaboration or jurisprudence in support of this Charter argument. The children, who will be turning 18 on […], 2014, instructed their lawyer to support the Society’s motion.

They want to be Crown wards so that they can continue to receive assistance from the Society in the Independent Living program. In order to succeed in this

summary judgment motion, the Society must establish that there is no genuine issue requiring a trial: Rule 16(4). The mother’s obligation is to provide evidence of specific facts showing that there is a genuine issue for trial: Rule 16(4.1). Dealing first with the issue of whether the children were in need of protection on July 3, 2012 (the date the application was issued), the Society is relying on s.37(2)(

i) of the Child and Family Services Act (“the Act”) which defines a “child in need of protection” as follows: The child has been abandoned, the child’s parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child’s care and custody. It is abundantly clear that the children were in need of protection at the commencement of this proceeding.

They could no longer stay at the boarding house in the Netherlands as the mother had not been paying the required fees (she provided no evidence proving that her account with the boarding house was in good standing as of July 3, 2012). Further, when the children arrived in Toronto, the mother was still in Europe and was therefore unavailable to exercise her custodial rights, and she had failed to make any provision for the children’s

care and custody. Any dispute the mother may have with the authorities or the court in the Netherlands, or with the Society in terms of the information it gave to the Netherlands child protection agency during its investigation, can have absolutely no relevance whatsoever to the question of whether, on July 3, 2012, the children were in need of protection, as this is a question to be determined in accordance with the factual circumstances set out in the definition quoted above.

None of the material facts in this regard are in dispute: the children were in Toronto with no available caregiver other than the Society. Regarding any possible claims of Charter of Rights violations that might be asserted by the mother, it was incumbent upon her at this stage to provide at the very least an air of reality to such claims, by specifying exactly: which section(

s) of the Charter were engaged; in what specific way(

s) those particular rights were violated and by whom; in what way(

s) the mother’s Charter rights would supersede those of her children, given their ages at the relevant time. Further, she would have had to demonstrate that, even if her Charter rights were violated, such a violation could conceivably lead to success at a trial in terms of having the Society’s protection application dismissed. Neither the mother’s materials nor her counsel’s submissions provided even the slightest air of reality to her bald assertion that her Charter rights had been violated.

Accordingly, on the question of whether a finding should be made that the children are in need of protection, there is no genuine issue for trial. Both children are found to be in need of protection under s.37(2)(

i) of the Act. In terms of disposition, the children have been in temporary care since July 2, 2012. The 2-year maximum time limit for temporary care pursuant to s.70 of the Act has been exceeded. Accordingly, the only available options for the Court at this stage are to return the children to their mother or make them Crown wards. No other family member has presented a plan for the children.

The Society’s plan is to have the children become Crown wards and then avail themselves of the Independent Living Program, which will give them access to continued financial, therapeutic and educational support beyond their 18 th birthdays. The disposition order in a child protection proceeding must be in accordance with the children’s best interests: s.57(1) of the Act. The definition of “best interests of the child” set out in s.37(3) of the Act, contains numerous factors to be considered by the court. This case is unusual, given that the children will be turning 18 on […], 2014.

They have had the right to withdraw from parental control since they were 16 years old: Family Law Act , s.31(2). Neither their parents, nor the Society, nor the court can dictate their living arrangements. Not even an order of Crown wardship can compel a child who has reached the age of 16 to remain in foster care. Accordingly, in the circumstances of this case, it is overwhelmingly obvious that the most important factor to be considered in determining the children’s best interests is their “views and wishes”, as set out in s.37(3)9 of the Act.

The evidence before me is clear that the children want to be Crown wards. They have had the option of withdrawing from the Society’s control and going to live with their mother since they turned 16 on […], 2012, and with the exception of 4 days in April 2014 when S.P.F. went to stay with his mother, these boys have consistently refused to reside with her. Although the mother insisted at the hearing that the children want to live with her, it is abundantly clear from their actions and from their lawyer’s submissions that they want to be Crown wards.

It is also clear that, like most children, they feel compelled to tell their mother what she wants to hear because they don’t want to hurt her feelings and disappoint her. The test to succeed in a

summary judgment motion, particularly where Crown wardship is sought, is a stringent one. The court should proceed with caution, and take a hard look at the merits of the case to determine if there is a genuine issue of material fact that requires resolution by way of trial. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child.

There must be an air of reality discernible from the evidence to indicate at least some prospect of success for that parent – that is, there must be some evidence from which a court could possibly order the return of one or both children to the mother. In this case Crown wardship is a foregone conclusion. The evidence gives rise to no possibility whatsoever of any other result. Accordingly, the Society’s

summary judgment motion is granted. Both children shall be Crown wards. I wish to make the following further comments regarding the mother’s request for a bilingual hearing. After this case proceeded in English before an English-speaking judge for 18 months, and on the eve of a

summary judgment motion being brought, the mother requested a bilingual hearing. The mother and her children communicate with each other in English. All of the documents filed in this case are in English. None of the lawyers, including the mother’s lawyer , speak French. The mother’s request necessitated considerable inconvenience and delay, as arrangements had to be made to

schedule a hearing before a bilingual judge (myself), who presides at a different court location than the court house where this case had been proceeding. When the parties appeared before me, all of the lawyers’ submissions were in English, as none of them speak French. The mother speaks and understands English fluently. When I attempted to engage her in French, it became abundantly clear to me that her facility in the French language is, to put it diplomatically, questionable. It was obvious that she was far more comfortable speaking English than French.

It was also painfully obvious that the mother’s request for a bilingual hearing was nothing more than an attempt to frustrate and stall the proceedings.

According to the Supreme Court of Canada, language rights should be interpreted purposively and remedially: Reference Re ManitobaLanguage Rights, (SCC), [1992] 1 SCR 212; Reference re Public Schools Act (Manitoba), (SCC),[1993] 1 SCR 839. The right to require a bilingual proceeding is set out in s.126(1) of the Courts of Justice Act, which states, A party to a proceeding who speaks French has the right to require that it be conducted as a bilingual proceeding. (emphasis mine) Provisions such as this have been accorded quasi-constitutional status: R. v. McKenzie, 2004 NSCA 10.

It is settled law that the right ofa party who speaks French to require that a proceeding be bilingual is a substantive and not merely procedural right. It is an absoluteright: Ndem v. Patel, 2008 ONCA 148, [2008] OJ 748. Such a party need not prove that he or she cannot also communicate in English:Tremblay v. Picquet, [2010] O.J. 1216 (Ont.S.C.). However, when such a request is made, it is incumbent upon the court to satisfyitself that the requesting party does in fact “speak French”.

It is clear that the requesting party’s ability to “speak French” is acondition precedent to the right to a bilingual proceeding: Mimico Co-operative Homes Inc. v. Ward, [1997] OJ 519, 97 OAC 309;A.J.W. v. B.W., 2014 ONSC 2745 , [2014 OJ 2209. In applying the appropriate

interpretation of the term “speaks French”, Iam guided by the Supreme Court of Canada’s decision in R. v.

Beaulac, (SCC), [1999] 1 SCR 768, [1999] SCJ 25,where an accused was denied a bilingual trial after making an application under s.530 of the Criminal Code, which provides: 530(1) On application by an accused whose language is one of the official languages of Canada […] a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused betried before a justice of the peace, provincial court judge or judge and jury, as the case may be, who speak the official language ofCanada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada. [emphasismine] Bastarache J. considered what the words “language of the accused” meant: 32 The expression "language of the accused" was not addressed at trial or in the Court of Appeal because it posed no problem to theparties.

Admittedly, French was the maternal language of the accused and that fact was accepted as justification for invoking s. 530(4).The Attorney General of Canada explained that the definition of the language of the accused has been a contentious issue for manyyears. In R. v. Yancey (1899), 1899 CanLII 95 (QC CS), 2 C.C.C. 320 (Que. Q.B. (Crown side)), at p. 323, the "habitua[l]" language ofthe accused was adopted. This solution was accepted in Piperno v. The Queen, (SCC), [1953] 2 S.C.R. 292, at p. 296,and more recently in Saraga v. The Queen, Que. Sup. Ct., No. 500-01-01624L-876, November 18, 1988.

Other courts have adopted thematernal language, or first language learned and still spoken; see R. v. Brown, Que. Sup. Ct., No. 700-01-3172-840, March 28, 1985,R.J.P.Q. 85-215; R. v. Lorentz-Aflalo, Que. Sup. Ct., No. 500-01-006114-877, October 8, 1987. In those cases, the court considered thelanguage of education, the language used at home, the language used for social contacts and the language of the community to which theaccused identifies.

In Saraga, supra, Martin J. accepted the language of the preferred form of communication. 33 A simple approach, such as maternal language or language used in the home, is inappropriate inter alia because it does not providea solution for many situations encountered in a multicultural society and does not respond to the fact that language is not a staticcharacteristic. Some persons insist that they have two maternal languages.

Some persons have a maternal language that is neither Frenchnor English, and use in the home either the maternal language, or the maternal language and French, or English, or both English andFrench. Their language at work may be English or French. Their language in social contacts may not be the same as their language ofwork. Language of use can change when a person changes employment, marries or divorces, or makes new friends. Many othersituations of this nature could be described. This is not necessary. 34 The solution to the problem, in my view, is to look at the purpose of s. 530.

It is, as mentioned earlier, to provide equal access tothe courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities inpreserving their cultural identity; Ford, supra, at p. 749. The language of the accused is very personal in nature; it is an important part ofhis or her cultural identity. The accused must therefore be afforded the right to make a choice between the two official languagesbased on his or her subjective ties with the language itself.

The principles upon which the language right is founded, the fact that thebasic right is absolute, the requirement of equality with regard to the provision of services in both official languages of Canada and thesubstantive nature of the right all point to the freedom of Canadians to freely assert which official language is their own language. I notethat s. 530(2) will apply to individuals who do not speak either of the two official languages. An accused's own language, for thepurposes of s. 530(1) and (4), is either official language to which that person has a sufficient connection.

It does not have to be thedominant language. If the accused has sufficient knowledge of an official language to instruct counsel, he or she will be able to assert thatthat language is his or her language, regardless of his or her ability to speak the other official language. The Crown may challenge theassertion made, but it will have the onus of showing that the assertion is unfounded. The court, in such a case, will not inquireinto specific criteria to determine a dominant cultural identity, nor into the personal language preferences of the accused.

It willonly satisfy itself that the accused is able to instruct counsel and follow the proceedings in the chosen language. [Emphasis mine] Although Bastarache J. sets out a relatively relaxed test for identifying the “language of the accused”, he makes it clear that not everyone

can simply assert a right to a bilingual proceeding. Without a subjective connection to the official language, language rights are not triggered because there is no threat to the subjectively-felt cultural identity that these rights are intended to protect. In my view, the words “speaks French” in the context of s.126 of the Courts of Justice Act , should be interpreted having regard to the intent and spirit of the provision: to permit francophone litigants, or litigants who are more comfortable communicating in French than in English, to participate in court proceedings in French.

The words “speaks French” in this important legislative provision should connote something more than being able to order crème brulée in a restaurant. The party requesting a bilingual proceeding should be able to demonstrate that he/she has a working fluency in the French language sufficient to instruct counsel and follow the proceedings in French . In my view, anything less than this makes a mockery of s.126 and permits the invoking of this provision by obstructionist litigants and their counsel as a delay tactic or as a way of avoiding a particular judge.

This strikes at the very heart of the integrity of the single-judge case management system, which is a hallmark of family court in this province. Unfortunately, this is a very real concern, given my 19 years’ experience on the Bench. Sadly, the circumstances of this case are by no means unusual or infrequent. I am not suggesting that a voir dire must be held each time a request for a bilingual proceeding is made, to determine whether the requesting party speaks French.

For example, in cases where court documents have been prepared in French, or where the request for a bilingual proceeding is made promptly at the beginning of the case, or where a party’s fluency in French is self-evident, the court need not make any inquiries and the request for a bilingual proceeding should be immediately granted.

However, in circumstances giving rise to a suspicion that the request may not be a bona fide one – especially where the request is not made in a timely fashion, the court materials are in English and the requesting party’s lawyer does not speak French – then the court should conduct a voir dire to satisfy itself that the requesting party does in fact “speak French” as contemplated by s.126.

I appreciate that it can be difficult and awkward to assess someone’s facility in a language that the assessor does not speak, but judges are routinely required to engage in similar inquiries when assessing the validity of a party’s request for an interpreter (see for example R. v. Wangchuk , 2012 ONCJ 338 ) or the competence of unaccredited interpreters, and so what is being suggested here is not foreign to judges.

The presence of a French interpreter, who can be asked to converse with the requesting party, would generally be sufficient to assist the court in making a determination that the party “speaks French” with sufficient fluency to make the request for a bilingual hearing a bona fide one. Had such a voir dire been conducted in this case, it would have been abundantly clear to the case management judge that the mother’s French language skills did not rise to the minimum level necessary to allow her to invoke s.126 of the Courts of Justice Act .

Her request for a bilingual hearing was motivated by a desire to frustrate, obstruct and delay the inevitable disposition being ordered today. This was not fair to her children, whose permanency planning was significantly delayed by the transfer of this case to a bilingual judge. ____________________________ Mr. Justice Harvey Brownstone Dated at Toronto, this 17th day of September, 2014.