L.R. v. V.V., 2011 ONCJ 16

Toronto (North York) Registry No. D52722/10 DATE: 2011·I·21 CITATION: L.R. v. V.V. , 2011 ONCJ 16 ONTARIO COURT OF JUSTICE BETWEEN: L.R. and J.C., Applicants, — AND — V.V. and O.V., Respondents, — AND — CHILDREN’S AID SOCIETY OF TORONTO, Party on the motion only. Before Justice Stanley B.

Sherr Heard on 13 January 2011 Endorsement inscribed on 21 January 2011 CUSTODY OF CHILD — Procedure — Who may apply — Non-parent — Clearance reports — Motion for exemption — Shortly after birth, child (now almost 2 years old) was apprehended by local children’s aid society which conducted kinship assessment on family friends of mother (applicants) — Assessment was positive and society placed child into applicants’ home where child thrived — Court found child to be in need of protection and ordered child to be placed into applicants’ care and custody subject to society supervision for 6 months and subject to supervised access by mother — By time of status review, society had no protection concerns about child in applicants’ care and wanted to end its involvement, provided that applicants got interim custody order under domestic relations law, with supervised access to mother — In meantime, maternal grandmother sought party status at status review at which she wanted child placed with her or alternatively, access — At case conference, parties agreed that applicants would start custody application under Children’s Law Reform Act , in which grandmother would be included as respondent and thus be allowed to press her claims — It was further agreed that, once applicants got interim custody order, society would abandon status review in child protection case — When applicants did file their application, they also made motion asking to be exempted for statutory requirement to file clearance reports (such as getting police record checks, reports from every children’s aid society where applicants had resided setting out whether they ever had prior involvement with that society and check whether they had ever been involved in any family law proceeding regarding children) — They argued that court already had necessary information because society, as part of its assessment in child protection case, had already gathered not only that information but much more and that it would offend primary objective of rule 2 (saving time and expense) of Family Law Rules to force applicants to waste more time and expense to get new clearance reports — Motion judge agreed — If applicants had pursued their custody claim under

section 57.1 of Child and Family Service Act , court would have been content with information that society had gathered about applicants to assure itself about child’s safety and best interests — Merely because applicants chose to file their claim under Children’s Law Reform Act should not be occasion for imposing unnecessary additional burdens on them — Exemption allowed vis-à-vis applicants — But when it came to grandmother’s counter-claim for custody, society’s information about her was less than complete and court required her to comply with statutory requirements to file clearance reports.

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], clause 37(2) (

l) and

section 57.1. Children’s Law Reform Act , R.S.O. 1990, c. C-12 [as amended],

section 21 , subsection 21 (2),

section 21.1 ,

section 21.2 and

section 21.3 . Family Law Rules , O. Reg. 114/99 [as amended], rule 2, subrule 2(3), rule 35.1 and Form 35.1

CASES CITED Children’s Aid Society of Toronto v. K. (Carlene) and S. (Juliette) , 2008 ONCJ 38 , 171 A.C.W.S. (3d) 869, [2008] O.J. No. 588, 2008 Cars​well​Ont 790 (Ont. C.J.). P.(C.A.G.) and P.(S.D.) v. J.(C.) and A.(M.) , 2010 ONCJ 175 , [2010] O.J. No. 4154, 2010 Cars​well​Ont 7376 (Ont. C.J.). AUTHORS AND WORKS CITED Sullivan, Ruth: Sullivan and Driedger on the Construction of Statutes , 5th ed. (Markham, Ont.: LexisNexis Canada Inc., 2008). Lauren B. Israel ...................................................................................... counsel for the applicants Paula M.

McGirr ............................................................... counsel for the respondent mother, V.V. Janet P. Daby ............................................ counsel for the respondent maternal grandmother, O.V. Samantha-Leigh Levenson .................................. counsel for the Children’s Aid Society of Toronto JUSTICE S.B. SHERR ( endorsement ):— 1: INTRODUCTION [ 1 ] The child (C.), born on 7 February 2009, was apprehended at birth by the Children’s Aid Society of Toronto (the society).

The society subsequently commenced a protection application in this court pursuant to the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended. A temporary order was made on 13 February 2009 placing the child in the temporary care and custody of the society. [ 2 ] The society conducted a comprehensive assessment (called a kinship assessment) on the applicants, who were family friends of the respondent, Ms. V.V. (C’s mother). [ 3 ] This assessment was positive. C. was placed by the society with the applicants on 22 April 2009.

On 30 July 2009, C. was found to be a child in need of protection pursuant to clause 37(2) (

l) of the Child and Family Services Act and an order was made placing C. in the care and custody of the applicants subject to society supervision for 6 months. Ms. V.V. was granted supervised access. Ms. O.V. did not participate in this proceeding. [ 4 ] The child protection case continued on status review. C. has continued to reside in the care and custody of the applicants pursuant to court order. The evidence indicates that the child has thrived in this placement. [ 5 ] The respondent, Ms. O.V., is C’s maternal grandmother. In the status review proceeding, she brought a motion to be added as a party.

She wants C. to be placed with her or, in the alternative, to have access to the child. [ 6 ] A kinship assessment was conducted on Ms. O.V. by Jewish Family and Child Services of Toronto. This report, dated 9 June 2010, was filed with the court. [ 7 ] A case conference was held in the status review proceeding. The society had no protection concerns about the applicants and wished to terminate the case, but only if the applicants could obtain a temporary domestic custody order, with supervised access to Ms. V.V. [1] It took no position with respect to Ms.

O.V.’s access. [ 8 ] An agreement was reached at this case conference. Ms. O.V. would not proceed with her motion to be added as a party in the status review proceeding. The applicants would commence a custody application pursuant to the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended (the domestic case), and Ms. O.V. would be a named respondent. [2] It was agreed that, once the applicants obtained a temporary custody order, with supervised access to Ms. V.V. in the domestic case, the society would terminate the status review proceeding. Ms.

O.V.’s claims would then be addressed in the domestic case. [ 9 ] The recent amendments to the Children’s Law Reform Act (the Act) impose additional requirements (the additional requirements) on non-parents who apply for custody or access to a child before they can start their application.

These include: obtaining police record checks, reports from every children’s aid society where the non-parents have resided setting out whether they have had prior involvement with that society and a check whether they have ever been involved in any family law proceeding regarding children (set out in sections 21.1 , 21.2 and 21.3 of the Act). [ 10 ] At the case conference held in the status review proceeding, the applicants orally sought a court direction dispensing with their need to comply with the additional requirements in the proposed domestic application.

I indicated my preference to hear submissions on this request within the context of the domestic case. I directed court services to issue the domestic application, with the understanding that I would then hear the applicants’ motion with respect to this issue. [ 11 ] The applicants issued this application and brought their motion to dispense with the additional requirements. Ms. O.V., on the return of the applicants’ motion, made her own oral motion asking that the court also dispense with her need to comply with the additional requirements. [3]

[ 12 ] On 13 January 2011, the parties consented, in this domestic case, to orders granting the applicants temporary custody of C., with supervised access to Ms. V.V. They also agreed to adjourn this proceeding for a case conference to deal with Ms. O.V.’s claims. [ 13 ] On the basis of this agreement, the parties to the child protection proceeding agreed to terminate that case. [ 14 ] The court then heard submissions on the motions brought by the applicants and Ms. O.V.

On consent, the society participated in the motions; David Laird, the society worker who has worked with this family, provided viva voce evidence. 2: THE APPLICANTS’ MOTION [ 15 ] Rule 35.1 of the Family Law Rules , O. Reg. 114/99, as amended (the rules), requires that the additional requirements be submitted to the court as attachments to the Form 35.1 that is also required by that rule.

The applicants submit that the court already has the information required to be attached to Form 35.1; they submit that they have therefore substantially complied with the additional requirements and should not be required to obtain and file further information for the court. Ms.

V.V. supported this motion, subject to the applicants’ obtaining an updated criminal record search through the court’s police security office. [4] On consent, I made an order for an updated criminal record search on both of the applicants. [ 16 ] In analyzing the applicants’ argument, it is necessary for this court to consider the primary objective, set out in rule 2 of the rules: to deal with cases justly. Subrule 2(3) in particular directs the court as follows:

(3) Dealing with cases justly.— Dealing with a case justly includes, (

a) ensuring that the procedure is fair to all parties; (

b) saving expense and time; (

c) dealing with the case in ways that are appropriate to its importance and complexity; and (

d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. [ 17 ] It is also important to consider the legislative intent of the recent amendments to the Act . In paragraph [14] of C.A.G.P. and S.D.P. v. C.J. and M.A. , 2010 ONCJ 175 , [2010] O.J. No. 4154, 2010 Cars​well​Ont 7376 (Ont. C.J.), I reviewed this intent as follows: [14] . . .

The amendments to the Act were made on the basis that it is in the best interests of children to ensure that the court have additional threshold information about families before it makes custody decisions and to provide safeguards against placing children in unsafe homes. There is a clear expressed intent that, when non-parents are applying for custody, the information threshold is greater.

Although the reality might be that many children are placed on agreement of parents with non-parents without court orders, the intention of the legislation is that, when non-parents are applying for a court order for custody of a child, the court must have this additional information before it endorses its approval of these arrangements through a custody order. . . . [ 18 ] I find that the applicants have complied with the additional requirements in the Act and are not required to obtain and file further documentation for the following reasons: (

a) Mr. Laird testified that, as part of the society’s assessment of the applicants, the society obtained the complete history of the applicants’ involvement with any children’s aid society in Ontario. (

b) Mr. Laird testified that the society would be notified pursuant to intra-agency protocol if the applicants had any involvement with a children’s aid society in Ontario after the kinship assessment was completed. He said that the society has not received any such notification. (

c) Mr. Laird testified that comprehensive police record searches were conducted on the applicants when the kinship assessment was done and adopted the contents of a letter attached to the affidavit of the applicant, J.C., which set out the particulars of the police record searches. (

d) The updated police record searches ordered by this court on 13 January 2011 with respect to the applicants were clear from the date of the kinship assessment. (

e) I directed court services to run the searches on any current or previous family proceedings regarding the child or any of the parties to this proceeding, as required by

section 21.3 of the Act . The search revealed no further court actions involving the parties or the child. (

f) The kinship assessment conducted on the applicants is far more comprehensive than any of the additional requirements set out in the Act . The society conducted multiple interviews of the applicants, did home inspections and observed how the applicants parented the child. (

g) The society has had sufficient confidence in the applicants to place C. in their care since 22 April 2009. It has monitored the placement, advised the court that the applicants are responsible caregivers and reported that the child has thrived in their care. It encouraged the applicants to start the domestic case and obtain a custody order, as it has no risk concerns about the applicants. (

h) This court has actively case managed the child protection case. It has found that it is in C’s best interests to make orders placing C. in the care and custody of the applicants subject to society supervision. (

i) It is necessary that this court have the substantive information set out in the additional requirements to determine that C. will be safe and protected and that it is in the child’s best interests to make the custody order requested by the non-parent applicants. It is not the form in which this information is delivered that is as important. This court has the necessary information about the criminal records of the applicants, their prior involvement with any child protection agency and any family court history involving them or the child.

In this case, with the helpful assistance of the society, the court is fortunate enough to have information that considerably exceeds that set out in the additional requirements.

(

j) It would be contrary to the primary objective of rule 2 to require the applicants to incur the time and expense to obtain new clearance letters from child protection agencies where they have previously lived.

This would not benefit or further protect the child as it would be a duplication of information that has already been obtained for the court, albeit in a different form. [ 19 ] Another significant factor in granting this motion is that the applicants have essentially exercised custodial rights to the child since 22 April 2009 in the child protection case. [5] When a decision is made to transition a case from the child protection forum to the domestic forum, parties now have two choices.

The caregivers can start a new domestic application, as was done here, or they or the society can apply for a custody order in their favour pursuant to

section 57.1 of the Child and Family Service Act . There are benefits and detriments with both procedures. However, the end result is the same; the caregiver obtains an order that will be deemed to be a domestic order under the Children’s Law Reform Act and any future change motion will be decided in the domestic case. In this case, the detriment to the society in proceeding with a

section 57.1 order would be that, since Ms. O.V. is contesting the matter, it would be an unnecessary litigant in what is essentially a custody dispute. [ 20 ] The additional requirements are not required for a party obtaining a

section 57.1 custody order. This is not by accident and makes considerable sense. The additional requirements are required when the court knows very little about non-parents applying for custody. This is not the situation in a child protection case, where a society is intimately involved with the family. The legislation recognizes the reality that, when a society is involved and is endorsing a

section 57.1 order, the court will generally have the necessary information about the caregivers before it to assure itself about the safety and best interests of a child; information that considerably exceeds that required in the additional requirements. [ 21 ] Legislation must be read in context.

This court finds that, where there is an existing child protection case, the child has been living in the care and control of the caregivers (who are applying for custody in the domestic case) for an appreciable length of time with the court’s approval and the court substantially already has the information set out in the additional requirements, then the additional requirements should not be required in the domestic case. [6] To order otherwise would be to treat custodial applicants differently depending on whether they apply for a custody order under

section 57.1 of the Child and Family Services Act or under

section 21 of the Children’s Law Reform Act , with no reasonable justification. To do so, could also have the unintentional chilling effect of stopping applicants from obtaining a domestic custody order when there may be benefits in doing so. [7] 3: Ms. O.V.’s MOTION [ 22 ] Ms. O.V. argued that I should apply rule 2 to dispense with her need to comply with the additional requirements. The other parties did not take a position on this motion. I find that Ms. O.V. must comply with the additional requirements for the following reasons: (

a) The kinship assessment conducted on her was completed on 9 June 2010. This court does not have updated information about her — neither about her criminal record nor about any subsequent involvement with a children’s aid society. (

b) Mr. Laird testified that, since C. is not in Ms. O.V.’s care, the society would not be notified about any involvement that Ms. O.V. would have had with a children’s aid society after the completion of the assessment. (

c) It is unclear from the kinship assessment conducted by the Jewish Family and Child Services whether a search for involvement regarding Ms. O.V. with every children’s aid society in Ontario was conducted. Mr. Laird could not confirm this (as he did with the applicants’ assessment) since Ms. O.V.’s assessment was conducted by a different child protection agency. In the part of Ms. O.V.’s kinship assessment dealing with children’s aid society searches, it says “CCAS- undetermined”. [8] I am not sure what that means. In the absence of further evidence, I cannot conclude that this aspect of the assessment meets the standard required by

section 21.2 of the Act . (

d) Ms. O.V. has not seen the child since April of 2009. She cannot make the argument that the additional requirements do not apply to her because of having pre-existing custody rights”. (

e) Rule 2, in the absence of other considerations, [9] cannot be applied to except a party from compliance with a specific statutory provision. In so far as possible, courts seek to avoid conflict between statutory and regulatory provisions and to give effect to both. Where conflict is unavoidable, normally the statutory provision prevails. See Ruth Sullivan: Sullivan and Driedger on the Construction of Statutes , 5th ed. (Markham, Ont.: LexisNexis Canada Inc., 2008), page 341. 4: CONCLUSION [ 23 ] An order will go as follows: (

a) The applicants will not be required to further comply with the additional requirements. They will not be required to provide the attachments to their Form 35.1 required by rule 35.1 of the rules. (

b) The respondent, Ms. O.V., will be required to comply with the additional requirements and file the necessary attachments to their Form 35.1 affidavit required in rule 35.1 of the rules. (

a) what steps the society took in investigating the placement; (

b) stating when the police records check on the caregivers was made and the results; (

c) stating when the society conducted a province-wide check to see whether the caregivers have had contact with a children’s aid society and the results; (

d) confirming that the society would be notified if the caregivers subsequently had any involvement with the society and whether or not this has happened;

(

e) describing the society’s monitoring of the placement and the progress of the child and the caregivers; and (

f) a statement that the society has no safety or protection concerns about the caregivers.