Children’s Aid Society of Halton v. S.N.S., 2011 ONCJ 635

WARNING The court hearing this matter directs that the following notice should 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. Milton Registry No. C173/10 DATE: 01·IV·2011 CITATION: Children’s Aid Society of Halton v. S.N.S., 2011 ONCJ 635 ONTARIO COURT OF JUSTICE BETWEEN: THE CHILDREN’S AID SOCIETY, REGION OF HALTON, Applicant, — AND — S.N.S. & J.O. Respondents.

Before Justice Sheilagh O’Connell Heard on March 24, 2011 Reasons for Decision released on April 1, 2011 Meagan Pallett ...................................................................................... for the applicant society

No appearance by or on behalf of S.N.S. or J.O. O’CONNELL J.: Introduction [ 1 ] On May 6, 2010, the Honourable Justice Zisman made a final order, on consent of the mother, that the child D. S. born March […], 2010, be made a crown ward, without access to either parent, for the purpose of adoption. The respondent father named in the final order was J. O. [ 2 ] On March 10, 2011, the society brought a motion for the following relief:

a) An order that the style of cause on the Crown wardship order be amended to replace the name of the respondent J. O. with the name J. P.

b) An order that the finding made by the Honourable Madame Justice R. Zisman on May 6, 2010, be amended to read that the full legal name of the respondent father is J. P. instead of J. O.

c) An order that the order of the Honourable Madame Justice Zisman be amended to indicate that J. P. has been served with the protection application and supporting documentation. [ 3 ] The society is seeking this relief because after the final order was made, it learned that the respondent mother had provided false information about the father’s identity. J. P. is the true father of the child, a fact that was confirmed by DNA testing on October 25, 2010, six months after the final order was made. The society has been in communications with J.

P. since that time and has requested that if he intended to provide an alternative plan for the child, that he do so as soon as possible. [ 4 ] On February 3, 2011, the society personally served J. P. with the original protection application and all original supporting documentation, the final order and endorsement of Justice Zisman dated May 6, 2010 and a blank answer and plan of care.

Issue: [ 5 ] Should this court simply amend the final order dated May 6, 2010 to reflect that J.P. is the true respondent father and indicate that he had been served with the protection application and supporting documentation nunc pro tunc , (on February 3, 2011 to have retroactive effect)? [ 6 ] In the alternative, should this court declare that the final order is a nullity and set it aside on the basis that J.P. did not have notice of the original proceedings? [ 7 ] In the further alternative, should this court make the finding that J.

P. is a parent and entitled to status in these proceedings, and then grant him leave to serve and file a motion to set aside the final order within prescribed timelines? Background: [ 8 ] The child, D. S., was born March […], 2010. After the child’s birth, while still at the hospital, the young mother advised a hospital social worker that she wanted to arrange for the private adoption of the child. On March […], 20100, the mother placed the child in the care of an adoption agency that had been contacted by the hospital.

On April 9, 2010, the society apprehended the child from the adoption agency because the adoption agency no longer wished to continue with the adoption process. In its view, the mother was not cooperating with the agency and the agency wanted the society to intervene with the care and custody of the child. [ 9 ] The mother met with the society workers on April 9th and April 13th, 2010 and maintained that she wished the child to be adopted. At all times during the child protection proceedings, the mother told the adoption agency and society workers that the father of the child was named J.O.

The mother advised society workers that she did not know J.O.’s address or whereabouts, but he travels between Halifax and Toronto. She further advised that they last had contact in January of 2010, that he was aware of the pregnancy, but did not care. She said that she was unaware of any family members related to the father and on one occasion when she tried to contact a friend of his, she was yelled at and told never to call again. [ 10 ] The adoption agency placed ads in both Toronto and Halifax newspapers for J.O. in an attempt to contact him.

The adoption agency and society worker called all telephone numbers in the Halifax and Toronto area listed with the father’s last name, but did not locate him. [ 11 ] On April 14, 2010 at the first appearance of the protection application, the society filed a statement of agreed facts signed by the agency and the mother seeking a final order of Crown wardship, no access for the purpose of adoption. Justice Zisman was not prepared to grant a final order until the society brought a formal notice of motion and supporting affidavit seeking to dispense with service on the father.

The child was placed in the temporary care and custody of the society in the interim. [ 12 ] On May 6, 2010, the society’s notice of motion and affidavit for an order dispensing service on the father J.O. returned before Justice Zisman. Based on the evidence filed, Justice Zisman was satisfied that every effort had been made to attempt serve J.O.

with the protection application and supporting documents and granted an order dispensing with service of the protection application andall supporting documents on J.O. After reviewing the signed statement of agreed facts signed by the mother and the society, as well asthe consent signed by the mother, Justice Zisman made the required statutory findings regarding the child’s name, date of birth andstatus, including the finding that the father of the child was J.O.

On that day, Justice Zisman made a final order that the child be made acrown ward without access for the purpose of adoption. [13] On June 17, 2010, the child was placed on adoption probation. To date, the child’s adoption has not been finalized andthe society has taken no further steps in the adoption process, which is a separate proceeding, at this time. [14] On July 19, 2010, the society received a telephone call from the child’s maternal grandmother. She advised the societythat she had found the court papers and the final order court order.

She told the society worker that she had not known that her daughterwas pregnant or that she had given birth to a child. [15] The grandmother further advised the society worker that her daughter had not been honest regarding the name of thechild’s father. The birth father was not J.O., but a man named J.P., who resides in Halifax. The grandmother advised society workersthat she planned to contact J.P. and inform him that he had a son. [16] On August 23, 2010, J.P, contacted the society and advised that he believed that he was the birth father of the child. Heconsented to a paternity test.

On October 25, 2010, the results of the DNA testing confirmed that J.P. is the birth father of the child. [17] The society had corresponded with J.P. by e-mail and ordinary mail and requested that if he intended to provide analternative plan for the child, that he do so in writing. On October 29, 2010, J. P. was sent pictures of the child and advised that theprospective adoptive family welcomed him to be part of the child’s life. J. P. advised the society that he was interested in meeting thechild, but to date has not presented an alternative plan of care for the child. [18] On February 3, 2011, J.

P. was personally served in Halifax with the protection application, all supporting documentation,the endorsement dated April 14, 2010, and the endorsement and final order dated May 6, 2010. The delay in personally serving J. P. wasthrough no fault of the society. On November 2, 2010, the society asked the Department of Community Services in Halifax to serve J. P.with all of the court documentation. Despite regular follow-up, this was not done so the society then hired a private process server toeffect service.

The Law: [19] Rule 6(16) of the Family Law Rules allows the court to order, on a motion without notice, that service is not required ifreasonable efforts to locate the person have been made or would not be successful, and there is no method of substituted service thatcould reasonably be expected to bring the document to the person's attention. [20] Rule 25 (19) of the Family Law Rules provides the following: CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE 25

(19) The court may, on motion, change an order that, (

a) was obtained by fraud; (

b) contains a mistake; (

c) needs to be changed to deal with a matter that was before the court but that it did not decide; (

d) was made without notice; or (

e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the partywas unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6. [21] It is a well known principle that a party seeking an order without notice must make full and fair disclosure of all materialfacts and that failure to do so is in and of itself sufficient ground for setting aside any order obtained.

Rule 1(7), combined with Rule37.14(1) gives this court jurisdiction to set aside a final order in those circumstances: Re N.P. (2001), (ON SC), 15R.F.L. (5th) 151, [2001] O.J. No. 441, [2001] O.T.C. 93, 2001 CarswellOnt 403 (Ont. Fam. Ct.); N.P. (Re) [2001] O.J. No. 441. [22] Further, the law in Ontario is clearly set out in Fromovitz v. Fromovitz, (ON SC), [1962] O.R. 120, 31D.L.R. (2d) 221 (Ont.

H.C.), where the court held that failure to serve a party with notice of an action means that a judgment rendered insuch a case should be set aside. [23] The issue of whether failure to give notice of a Crown wardship application to a person entitled to notice makes thesubsequent Crown wardship order null and void as against such person was addressed by the Supreme Court of Canada in Children's AidSociety of Metropolitan Toronto v. Lyttle, (SCC), [1973] S.C.R. 568, 34 D.L.R. (3d) 127, 10 R.F.L. 131.

In this case, aparent (the father) had not been given notice of the Crown wardship application, the child had been made a ward of the Crown and thematter had proceeded to the point where notice of the intention to adopt the child had been given to prospective adoptive parents. Inwriting for the majority, Chief Justice Laskin stated that the father in that case was entitled to notice of the Crown wardship proceedings,either as a consequence of the definition

section qualifying him as "a parent" or as a matter of common law entitlement. Justice Laskinfound the failure to give notice to the father a fatal defect and consequently found the Crown wardship order to be a nullity so far as thefather was concerned.

[24] The Supreme Court of Canada has further expanded upon the importance of procedural fairness in child protectionproceedings in New Brunswick Minister of Health v. G., (SCC), [1999] 3 S.C.R. 46. The Court emphasized that thestate can remove a child from parental custody only in accordance with the principles of fundamental justice which are to be found in thebasic tenets of our legal system. The Court went on to state the following: Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural.

The state may onlyrelieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for makingthis determination. ... For the hearing to be fair, the parent must have an opportunity to present his or her case effectively. ... If [they are] denied theopportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child's bestinterests.

There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child's best interest toremain in his or her care. [25] These principles have been followed by Justice Mackinnon in Re N.P. (2001), (ON SC), 15 R.F.L.(5th) 151, [2001] O.J. No. 441, [2001] O.T.C. 93, 2001 CarswellOnt 403 (Ont. Fam. Ct.), and by Justice Wolder in Children's AidSociety of Halton Region v. C.J.R. 2005 ONCJ 514 , [2005] O.J. No. 5786. [26] In Re N.P. (2001), (ON SC), 15 R.F.L. (5th) 151, [2001] O.J. No. 441, [2001] O.T.C. 93, 2001CarswellOnt 403 (Ont. Fam.

Ct.), Justice Mackinnon set aside a Crown wardship order and a then set a new date to deal with the nextstep in the case. In that case the order was made without notice to the father. The society knew who the father was but had obtained anorder dispensing with service on him on two separate occasions. Justice Mackinnon found that the affidavits filed by the society insupport of both orders to dispense were deficient not only in terms of a failure to disclose all material information to the court, but werealso misleading.

She concluded that the society breached the duty of full and frank disclosure and that the affidavits were misleadingregarding facts material to the court's decision. [27] In Children's Aid Society of Halton Region v. C.J.R. 2005 ONCJ 514 , [2005] O.J. No. 5786, Justice Wolderfound that failure to give notice of the status review for Crown wardship to the respondent aunt and uncle made the Crown wardshiporder null and void against those respondents and ordered that it be set aside.

In reaching this decision, Justice Wolder stated thefollowing: The importance of procedural fairness, which encompasses the requirement of notice, is the cornerstone of fundamental justice in childwelfare proceedings. Whether the resulting judgment is to be regarded as a nullity or irregularity is of no consequence. Therefore, if theaunt and uncle were entitled to notice, then the failure to serve them means that the Crown wardship order should be set aside againstthem as a nullity.

The principle of fundamental justice in child protection proceedings was endorsed by the Supreme Court of Canada inNew Brunswick Minister of Health and Community Services v. J.G., (SCC), [1999] 3 S.C.R. 46, 244 N.R. 276, 216N.B.R. (2d) 25, 552 A.P.R. 25, 177 D.L.R. (4th) 124, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203, [1999] S.C.J. No. 47, 1999 CarswellNB 305. [28] In both of the cases referred to above, the party who had not received notice of the proceedings brought an application toset aside the final order.

In this case, the father has not yet brought a motion to set aside the final order and he has only recently beenserved with the protection application, supporting documents and final court order. [29] In Children’s Aid Society of London and Middlesex v. M.L.W. [2005] O.J. No. 3498, a final order for crown wardship hadbeen made based on false information given by the child’s mother and maternal grandmother regarding the child’s father. As a result ofthe false information, the society dispensed with service on the father of the protection application.

After the final order was made, thematernal grandmother provided the society with detailed information regarding the exact location of the father. The society applied tothe court for directions. [30] Justice Marshman stated the following in considering her ruling: Although not exactly on all fours, this is not unlike the situation faced by MacKinnon J. in Re. N.P. (ON SC), [2001]O.J. No. 441, where the father moved to set aside a Crown wardship order on the basis that he had no notice of the proceedings.

In thatcase, the affidavits filed by the Society in support of the orders obtained to dispense with service on the father were deficient in that theyfailed to disclose all material information and were misleading. While I do not suggest that the Society was misleading in any way whenit obtained the orders in this case, the result is the same. A Crown wardship order has been made against a respondent father, who mayhave no knowledge of the proceeding. I am not satisfied that it is necessary to set aside the Crown wardship order at this time.

At most, it is voidable at the instance of thefather, who should receive notice of the order. According to the case of Children's Aid Society of Metropolitan Toronto v. Lyttle, (SCC), [1973] S.C.R. 568, 34 D.L.R. (3d) 127, 10 R.F.L. 131, the Crown wardship order in his case is a nullity as against thefather. I am of the opinion that the respondent father ought to be given an opportunity to appear and apply to set aside the Crown wardshiporder. It is clear from the Lyttle case that the nullity is only against him and accordingly he is the only person who ought to have relief.

CONCLUSION [31] This case is very similar to the case before Justice Marshman. In my view, the final order of Justice Zisman, dated May

6, 2010, is a nullity against the father and he should be given a reasonable opportunity to apply to set aside the crown wardship order. [ 32 ] Accordingly, I make the following order: 1. The father, Mr. J.P. shall be personally served with a copy of this endorsement and court order; 2. The father, Mr. J.P. shall be served with notice that he or his counsel is entitled to appear in this court on any child protection hearing day (usually a Thursday in this jurisdiction) to indicate his intention to set aside the order.

The father or his counsel should notify society and the trial coordinator’s office of the date he intends to attend; 3. If the father or his counsel fails to appear in court on the day referred to in paragraph 2 above and does not otherwise move to set aside the final crown wardship order within 30 days of personal service of this order and endorsement, then the Order of Justice Zisman dated May 6, 2010 shall be deemed to be in full force and effect as against J.P., subject to the following amendments:

a) The title of proceedings on the Crown wardship order be amended to replace the name of the respondent J. O. with the name J. P.

b) The finding made by the Honourable Madame Justice R. Zisman on May 6, 2010, be amended to read that the full legal name of the respondent father is J. P. instead of J. O.

c) The order of the Honourable Madame Justice Zisman be amended to indicate that J. P. has been served with the protection application and supporting documentation. 4. The Children’s Aid Society shall take no further steps to finalise the adoption of D.S. until after the expiration of the timelines prescribed in this order. Released: April 1, 2011 Signed: “Justice Sheilagh O’Connell”