Children’s aid Society of Halton Region v. A.R., 2011 ONCJ 682

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. 537/10 DATE: 2011·09·01 CITATION: Children’s aid Society of Halton Region v. A.R. , 2011 ONCJ 682 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY, REGION OF HALTON, Applicant, — AND — A. R. (mother), R. V. (father of J.V.), K. B. (father of M.R.) Respondents.

Before Justice Sheilagh M. O’Connell Heard on August 30, 2011 Reasons for ruling released on September 1, 2011 Megan Pallett ............................................................................................. for the applicant society

A.R. on her own behalf No appearance by or on behalf of respondent fathers O’CONNELL J.: [ 1 ] The mother brings a motion requesting the following orders regarding my reasons and decision on costs in this case, released on August 11, 2011: 1) an order that the reasons and decision not be reported or published in any form; 2) an order that the reasons and decision not be included in the court file; and 3) an order that the reasons and decision not be given to any party. [ 2 ] During the hearing of the motion, the mother orally amended the relief that she was seeking and advised that she was now agreeable to having the reasons and decision remain in the court file.

She further advised that those portions of my reasons relating to the law regarding costs against a society and relating to her conduct can be published, however, any information regarding the children, and in particular, specific references from the affidavit of Cynthia Thompson with respect to the children, be removed from my decision and reasons, “as they have never been corroborated by J.V. or any other party and they are emotionally harmful to the child and children.” [ 3 ] The mother submits that my decision regarding her motion for costs against the society contains information which make the identification of the children possible and that the references to the affidavit of Cynthia Thompson in the decision will make it very easy for “third parties” to research and find the decision online if published. [ 4 ] The mother defined “third parties” to include the children’s biological fathers, and their counsel.

The children’s biological fathers are respondents in these proceedings. The mother submits that because both respondent fathers were noted in default, they are not entitled to receive copies of my decision relating to costs. The mother submits that releasing portions of my decision relating to the children to the respondent fathers and their counsel will be emotionally harmful to the children.

She raises concerns about the “questionable interest and motives of the children’s father and their lawyers” during the course of the child protection proceedings. [ 5 ] Although the society clearly agrees that any identifying information regarding the children should be removed from the decision, the society opposes the mother’s motion that the decision not be reported or published (in its redacted form) and that it not be given to any party. The society further opposes amending the decision to remove the references to Ms. Thompson’s affidavit. [ 6 ] Ms.

Pallett for the society submits that the child protection proceedings are closed to public and media subject to

section 45 of the Child and Family Services Act R.S.O. 1990, c. C.11, (“CFSA”) .

Section 45 places very strict restrictions on the publication of child protection hearings, including any information identifying a child. However, the respondent fathers are not members of the public or third parties and they are entitled to access the child protection file, regardless of whether they have been noted in default. The society submits that the mother should not be permitted to, in effect, rewrite my decision and the decision should be accessible to the court and the parties to ensure the proper administration of justice.

The society further submits that it should be permitted to rely on the decision as a useful legal precedent in other cases regarding costs against a society, subject to all identifying information being redacted. [ 7 ] In reviewing my decision, I note that I did include the name of one of the children’s school and part of the child, M.R.’s address. I agree that this information could potentially identify the children so I have amended my decision and redacted this information pursuant to section 45(8) of the Child and Family Services Act : 45

(8) 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. R.S.O. 1990, c. C.11, s. 45 (8) . [ 8 ] However, other than these amendments, for the reasons that follow, the mother’s motion is dismissed. [ 9 ] This case proceeded under

Part III of the CFSA and is therefore subject to sections 45 and 76 of the Act. Sections 45(4), 45(7), 45(8), 45(9) and 45(10) of the act provides as follows: 45(4) A hearing shall be held in the absence of the public, subject to subsection (5), unless the court, after considering, (

a) the wishes and interests of the parties; and (

b) whether the presence of the public 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, orders that the hearing be held in public. R.S.O. 1990, c. C.11, s. 45 (4) ; 2009, c. 33 , Sched. 7, s. 1 (2). 45(7) The court may make an order, (

a) excluding a particular media representative from all or part of a hearing;

(

b) excluding all media representatives from all or a part of a hearing; or (

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 the presence of the media representative or representatives or the publication of the report, as the case may be, 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. R.S.O. 1990, c.

C.11, s. 45 (7) . 45(8) 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. R.S.O. 1990, c. C.11, s. 45 (8) . 45(9) 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. R.S.O. 1990, c.

C.11, s. 45 (9) . 45(10) No person except a party or a party’s solicitor shall be given a copy of a transcript of the hearing, unless the court orders otherwise. R.S.O. 1990, c. C.11, s. 45 (10) . [ 10 ] Sections 76(11) and 76(12) of the Act provides as follows: 76(11) No person shall publish or make public information that has the effect of identifying a witness at or a participant in a hearing, or a party to a hearing other than a society. 76(12) The record of a hearing or appeal under this

section shall not be admitted into evidence in any other proceeding except a proceeding under clause 85 (1) (d) (confidentiality of register) or clause 85 (1) (e) (amendment of society’s records). R.S.O. 1990, c. C.11, s. 76 . [ 11 ] It is clear that the Act already places restrictions on access to the court file by members of the public. Other than the parties, no member of the public is entitled to access the court file. Further, any decision made redacts any and all information which could identify a child of the proceedings. [ 12 ]

Section 45 does not prohibit the release of a decision relating to a child protection case in a legal publication, so long as identifying information is removed concerning the parties and the children and the publication of a report of the hearing or a specified part of the hearing would not cause emotional harm to a child.

All decisions in child protection cases are redacted to eliminate identifying information in this manner and includes a warning setting out the relevant prohibitions attached to the decision. [ 13 ] There is no basis for the mother’s submissions that the publication of my decision regarding her motion for costs against the society would be emotionally harmful to the children. All identifying information regarding the children is now removed from the decision. The decision largely focused on the mother’s conduct in these proceedings, and her identity is also protected and sealed in the court file.

The decision canvasses the law regarding costs against a society and it could potentially be a useful precedent to the society in other cases as there are generally not many cases involving motion for costs against a society brought by a parent. If the decision was published in a legal publication, subject to the conditions set out in s.45 of the Act, it would not be possible for the public to identify the children or the parties.

If the decision is not published in a legal publication, the public has no right of access to the court file. [ 14 ] It appears that the mother’s real concern is the release of my decision to the respondent fathers. The decision should be accessible to the respondent fathers in this child protection proceeding to ensure the proper administration of justice. Parents are not “third parties”. A party to a proceeding who is noted in default does not lose the right to access the court file or to be provided with reasons for decision. Pursuant to Rules 10(5) and 25(13) of the Family Law Rules , O.

Reg. 114/99, a respondent who is noted in default is not entitled to any further notice of steps in the case, except service of an order made in the case . Further, pursuant to Rule 9(17) of the Family Law Rules, if a court gives written reasons for an order, the clerk of the court shall add a copy of the reasons to the endorsement

section of the court file and shall send a copy of the reasons to the parties by mail, fax or electronic mail, regardless of whether the part was noted in default. [ 15 ] In this case, the respondent fathers did not participate in the mother’s cost motion against the society. However, they are still entitled to a copy of the decision and reasons. [ 16 ] The mother concedes that there is nothing in the CFSA that would prohibit releasing a copy of my decision to the other parties in this proceeding.

She submits that I have the discretion to order that the reasons for decision not be released to the respondent fathers, as it would be emotionally harmful to the children. Specifically, she submits that releasing my decision to the respondent fathers with the specific references from Cynthia Thompson’s affidavit regarding the children would be emotionally harmful to the children. The mother deposes at paragraph 3 of her affidavit in support of her motion the following: “3.

During the course of the proceedings there have been concerns raised about the questionable interests and motives of the children’s fathers and their lawyers.

The fathers and their lawyers were given documents which inflamed and negatively impacted the children and their relationship with their birth fathers.” [ 17 ] In argument, the mother expanded on the above and advised that the fathers may share the costs decision with third parties and rely on portions of the decision to harm the mother and indirectly the children, by releasing the decision to the mother’s landlord for example, and to various other third parties.

[ 18 ] These submissions have no merit. First, the fathers are prohibited from releasing my reasons and decision to any third party or to any member of the public pursuant to sections 45 and 76 of the CFSA . A person who contravenes sections 45 and 76 of the CFSA is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or imprisonment for a term of not more than three years, or to both, pursuant to s.85 of the Act. [ 19 ] Second, the respondent fathers were already served with the affidavit of Cynthia Thompson referenced in my decision during the course of these proceedings.

The respondent fathers were not noted in default on May 12, 2011 and June 2, 2011 respectively. By that time, they had already been served with all of the affidavits in the child protection proceedings, including the affidavits of Ms. Thompson. My August 11 reasons only refer to the affidavits of Ms. Thompson that the fathers had already received.

They are clearly prohibited from using those affidavits in any other domestic proceedings regarding the children and the mother, pursuant to sections 45 and 76 of the CFSA . [ 20 ] The mother wants me to make an order which, in effect, will hide the decision from the respondent fathers, or which will substantially alter my decision and reasons.

This is procedurally unfair and does not serve the proper administration of justice. [ 21 ] For the above reasons, I dismiss the mother’s motion. [ 22 ] The society seeks costs and an order that the mother be prohibited from bringing any further motion in these proceedings. [ 23 ] I am not prepared to order costs against the mother. However, the proceedings regarding M.R. are now over. The society withdrew its protection application regarding M.R. and the mother has withdrawn from the protection application regarding J.V. The mother’s motion for costs is complete.

The mother has brought numerous motions in the past several months. Most of them have been without merit, and have been dismissed. This case is over and there is no reason why the mother should continue to bring motions in a case that has been completed. I therefore order the following: 1) The mother’s motion is dismissed; 2) The mother is prohibited, without leave of the court from bringing any further motions in these proceedings. [ 24 ] Since the hearing of the motion, the mother has sent two faxes directly to me, totalling eight pages. It is unclear whether the society was copied on this correspondence.

The mother requested that I

schedule a further continuation of the motion to permit the Office of the Children’s Lawyer to make submissions regarding J.V. She includes copies of email correspondence from Ms. McCarty, J.V.’s counsel, indicating that while Ms. McCarty was not counsel in the application in which the costs decision was delivered, she would be prepared to attend, “if the court has concerns and wishes to hear from J.V. on this issue.” [ 25 ] The motion was argued and submissions were completed on August 30, 2011. I had already refused to grant the mother’s request for an adjournment at the hearing of her motion.

It is not necessary for me to hear from the Children’s Lawyer or J.V. on the issues that were before me in this motion. I once again decline to grant a continuation to hear further submissions on this issue. Released: September 1, 2011 Signed: “Justice Sheilagh M. O’Connell”