Jewish Family and Child Service of Greater Toronto v. I.P., 2016 ONCJ 202

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 45 (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. No. C72035/14 CITATION: Jewish Family and Child Service of Greater Toronto v. I.P. , 2016 ONCJ 202 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1 IN THE MATTER OF The Child and Family Services Act, R.S.O. 1990, c. 11 AND IN THE MATTER OF: K. P.-M., born […] , 2014, and A.

P.-M., born […], 2014 BETWEEN: Jewish Family and Child Service of Greater Toronto Applicant - and - I.P. (mother), and I.M. (father) Respondents Before Justice Robert J. Spence Argued on 11 April 2016

Reasons for Ruling released on 12 April 2016 Ms. Sara Westreich …………………..for the applicant society Mr. David Miller ………..………………for the respondent mother Mr. Bradley Berns ……………………..for the respondent father [ 1 ] This is my ruling in respect of the admissibility of two transcripts contained in the Trial Record which was prepared by the Jewish Family and Child Service of Greater Toronto (“society”).

This ruling is made in the midst of a child protection trial which has been ongoing before me for six days. [ 2 ] The first transcript arises from a motion before Justice Zisman on January 13, 2015. [ 3 ] The second transcript arises from a case conference before Justice Zisman on March 17, 2015. [ 4 ] Parents’ counsel seek to exclude certain portions of those transcripts. The society argues that the transcripts are admissible in full.

The portions of the two transcripts which are objected to are various statements made by then-parents’ counsel with respect to certain matters before the court. [ 5 ] In the January 13, 2015 proceeding, the society had brought a motion to suspend or limit the parents’ access because they had been transmitting bedbugs to the society’s offices and to the foster home. The society was of the view that the parents were refusing to cooperate in ridding their home of the infestation.

Ultimately, on that date, Justice Zisman made the order that the society was requesting. [ 6 ] I do not find it necessary to reproduce in full the impugned portions of the two transcripts. However, to give a flavor of those portions which are objected to, I set out two examples from the first transcript: 1. From father’s counsel – I’ve got some written instructions from my client that he just handed to me today and unfortunately, after reading those instructions I’m concerned that my client doesn’t fully appreciate the risks that the bedbugs are posing, that the ease with which they can be transmitted. 2.

From father’s counsel – I’m overwhelmed with the assistance this society is offering. I’ve never, in 25 years of doing child welfare, seen an agency step up to try to help get this family back together. So – and this, this is a critical step that has to be taken and it’s not happening. [ 7 ] Although this first transcript was in respect of a motion brought by the society, it appears in reviewing the transcript that, in substance, the motion was never actually argued.

A review of the transcript reveals that parents’ counsel were ad idem with the society in terms of what the society was attempting to do. [ 8 ] Rather than proceeding as a contested motion, the appearance before Justice Zisman unfolded more as a case conference, a discussion with the court about how to resolve the bedbug problem which was then ongoing.

Notwithstanding that Justice Zisman made the order which the society was seeking, I characterize the substance of this appearance as a case conference, rather than a motion. [ 9 ] The statements which are arguably objectionable are statements made by both parents’ counsel about their clients, including the lawyers’ own challenges in dealing with their respective clients and the need for their clients to cooperate with the society in its efforts to resolve the bedbug issue. [ 10 ] None of the impugned portions of this first transcript contain any statements made by the parents themselves. [ 11 ] Justice Zisman granted the society’s motion, permitting the society to suspend access in its own discretion until such time as the parents cooperated fully with the society.

[ 12 ] The second transcript, arises from an attendance before Justice Zisman on what was in fact a case conference. The purpose of this attendance was to update the court as to the progress being made in addressing the bedbug issue. [ 13 ] Once again, parents’ counsel made a number of statements that are arguably inadmissible. I provide a single example of those statements to give some flavor to what is now impugned: From mother’s counsel – This has been the most challenging case I’ve ever had in my practice. We have to micro-manage our clients in order to get things done.

The society in this case, as Your Honour has correctly identified, is amazing. I have never seen anything like it. [ 14 ] In seeking to have the transcripts admitted in full, the society relies on the following. [ 15 ] First, the society relies upon section 50(1)(

b) of the Child and Family Services Act , which states: Evidence Past conduct toward children 50.

(1) Despite anything in the Evidence Act , in any proceeding under this Part, (

a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and (

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. 1999, c. 2, s. 12. [ 16 ] Specifically, the society relies on subsection (b), which refers to the admissibility of a “transcript”. [ 17 ] The society argues that the transcript is “relevant” – which is a precondition for admissibility – because one of the issues in this case, will be whether the parents cooperated with the society in resolving the infestation, and/or what their level of cooperation was in addressing that problem. [ 18 ] Second, the society relies on a consent order endorsed by the court pursuant to a 14B motion form dated March 31, 2015.

In that consent motion form, the society requested the following: 1. An Order that the [society] may obtain the transcript from the case conference held on Tuesday March 17, 2015, before the Honourable Justice Zisman, with copies of the transcript to be provided by the Society to parents’ counsel. 2. All of the parties agree that it would be helpful to have a formal record of the various undertakings that the parents provided directly to the court during the March 17, 2015 case conference.

The parties also agree that the transcripts may be an important tool to employ with the parents in reviewing the commitments that they made to the Court should they have difficulty remembering. [ 19 ] Third, the society relies on the case of Jewish Family and Child Service v. S.K ., 2015 ONCJ 246 , a decision of Justice Zisman. In that case, Justice Zisman was making admissibility rulings in the context of a

summary judgment motion. She held, at paragraph 122 [my emphasis]: [ 122 ] I agree that the findings of fact made by the case management judge are not binding on me and that the test on a

summary judgement motion is distinctly different than the test applicable to the temporary care and custody motion or a variation motion. However, the history of the litigation that is evident from the many endorsements, decisions and Orders in this case are relevant to the issue of parents’ ability to cooperate with the society and the treatment providers and are relevant to the issue of the relationship between the child and the parents.

The history of the litigation and the finding previously made are also relevant to the issue regarding the finding of need of protection as the court needs to examine the protection concerns at the time of the apprehension and whether or not those concerns still exist. Counsel for the parents was not able to provide any cases that stood for the proposition that a

summary judgement motion judge could not review the prior endorsements, decisions or Orders made in the case .

[ 20 ] For the reasons which follow, I have concluded that the society’s position in the case before me is not sustainable. [ 21 ] First, referring back to Justice Zisman’s comments, I have emphasized certain portions of her reasons to illustrate the kinds of material which a court can and should consider as “relevant to the issue regarding the finding of need of protection”. I agree with Justice Zisman’s analysis.

However, nowhere in that reasoning does Justice Zisman state that transcripts of comments made by the parties or their counsel in a case conference are admissible in a trial. [ 22 ] Second, while I agree with the society – and parents’ counsel - that the transcripts are admissible for the undertakings given by the parents on March 17, 2015, the impugned portions of the transcripts do not include those specific undertakings.

Those undertakings are set out in different portions of the transcript arising from the March 17, 2015 appearance. [ 23 ] Third, and perhaps most important, I am concerned about the danger of admitting at a trial the statements made by parents or their counsel in the course of a case conference. [ 24 ] The purpose of a case conference is to discuss issues and to brainstorm the possible resolution of issues which are ongoing in the particular case. Effective case conferencing often results in the resolution of some or all of those issues.

However, in order to case conference effectively, the parties and their counsel need to be frank and open in their discussions with the court. [1] [ 25 ] Resolutions are unlikely to occur if the parties or their counsel hold back and circumscribe their comments during the case conference. If parties believe that their comments made during the course of a case conference are likely to come back to haunt them at a subsequent trial, they would be more inclined to be cautious and restrained in how they engage with the court.

In my view, this would seriously limit the effectiveness of case conferences. [ 26 ] The case of Z.(A.) v. W.(J.) , 2004 ONCJ 158 is a decision of Justice Heather Katarynych. In that case, Her Honour considered the admissibility of comments made by the case management judge during the course of judicial case management. At paragraphs 18 and 19 of that decision, Justice Katarynych stated [My emphasis]: [ 18 ] Judicial case management under the Family Law Rules has, as its central goal, frank discussion of the respective cases put forth by the parties in the interest of narrowing the scope of the litigation.

To that end, the likely merits of the claims are part and parcel of that discussion. See rule 2 and rule 17. [ 19 ] It is improper for the trial judge to have access to comments made by a brother or sister judge made in the course of that judicial case management.

The transcripts proffered by Ms Zwaigenbaum are not admissible in evidence in the trial. [ 27 ] I agree entirely with Her Honour’s observations at paragraph 18. [ 28 ] As to paragraph 19 of Her Honour’s reasons, it is not necessary in the present case to consider the admissibility of Justice Zisman’s comments during the course of the two appearances before her, as none of Her Honour’s comments are impugned at this trial.

I need only consider the admissibility of statements by parents’ counsel. [ 29 ] In that regard, and on the basis of the foregoing rationale, I would refuse to admit those statements into evidence in this trial. [ 30 ] I wish to be clear, that despite my holding in this case, there may well be cases where statements made by litigants or their counsel during the course of a case conference would be admissible in a subsequent trial.

However, in my view, those would be rare and exceptional cases only. [ 31 ] As a matter of public policy, and in the furtherance of effective case management, the general rule should be that these kinds of statements are not admissible in a subsequent trial. [ 32 ] On the basis of the foregoing, I conclude that the following shall not form part of the evidence in this trial:

1. Transcript of the January 13, 2015 appearance – page 5, lines 1-11; and page 8, lines 15-22. 2. Transcript of the March 17, 2015 appearance – page 15, lines 12-24; page 16, lines 13-21 and lines 31-32; and page 18, lines 7-15. Justice Robert J. Spence April 12, 2016