Children’s Aid Society of Haldimand and Norfolk v. S.T., 2011 ONCJ 674

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 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 . . . the 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) (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. Cayuga Registry No. C29/07 DATE: 2011·VII·12 CITATION: Children’s Aid Society of Haldimand and Norfolk v. S.T. , 2011 ONCJ 674 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF HALDIMAND AND NORFOLK, Applicant — AND — S.T. and D.H., Respondents Before Justice Lawrence P.

Thibideau Motion heard on 14 June 2011 Reasons for Judgment dated 12 July 2011 Alexis C. Kinnear ......................................................................... . counsel for the applicant society Aubrey D. Hilliard .............................................................. counsel for the respondent mother, S.T. Kelly P.T. Edmonds ................................................ counsel for the Office of the Children’s Lawyer legal representative for the child For previous proceedings, see Children’s Aid Society of Haldimand and Norfolk v. S.T. and D.H. , 2010 ONCJ 758 (Ont. C.J.), per Justice

Lawrence P. Thibideau. [ 1 ] JUSTICE L.P. THIBIDEAU:— The society has before the court a

summary judgment motion requesting that the child S.L.H.T, now four years of age, be made a Crown ward without access. [ 2 ] This motion presents an interesting and unique procedural issue which must be dealt with before hearing the matter on its merits in this court. The procedural history defines the issue. [ 3 ] By motion returnable on 1 June 2010, a previous

summary judgment motion for identical relief, on similar but not identical facts, was heard on 18 October 2010. At that time, the relief sought was denied for reasons given in the written judgment of 15 November 2010. [ 4 ] The facts crucial to the decision allowing mother to move the case on to trial centred on mother being halfway through an in-house treatment plan for alcohol addiction. Over the three years since the birth of the child mother had cycled up and down in her efforts to escape her involvement with alcohol, with the child in and out of mother’s care until she went into residential treatment. Exactly why the Society chose to commence the first

summary judgment halfway through the treatment term is not clear at all. [ 5 ] After the dismissal of the Society’s motion, the Society did two things. [ 6 ] First, it appealed the decision to the Superior Court of Ontario shortly thereafter. The society informed this court that, at the recent hearing of that appeal, it sought to introduce fresh evidence of events subsequent to the date of the decision appealed. [ 7 ] Second, while that appeal was pending (and it continues to be so), the society brought this second

summary judgment motion using the identical fresh evidence facts presented at the appeal. The society has now pending before two courts a request for identical relief, albeit in different format, based on identical facts. [ 8 ] Succinctly put, this the Society cannot do. [ 9 ] This court was informed that the judge on appeal was considering the issue of whether to allow the fresh evidence to be used in the appeal, it is a live issue before that court.

If the fresh evidence is allowed, the result will be that the same lis is before two different courts for consideration. [ 10 ] The society has set up the scenario in which one court (the appeal court) is considering the same issue and evidence as another court (this court of first instance). Technically, there are two separate parallel court proceedings ongoing; however, the effect is that two different courts are considering the same lis and may reach contradictory, in whole or in part, results.

It is unseemly that this statutory court is placed in the position of deciding the same issue as the court that sits in appeal of this court’s decisions. [ 11 ] It is intuitively wrong that this occur. [ 12 ] It also places the litigants in a potentially impossible situation. If there are differing decisions, which one is to be obeyed? Merely because the first matter is on appeal to a higher court does not necessarily give that decision precedence. The matter before this court is a new procedure, technically permitted by the Family Law Rules and the Act.

It is the second in sequence initiated by the same litigant. The appeal decision will necessarily supersede and replace the first

summary judgment motion decision of 15 October 2010. It will not supersede and replace the second decision made here. [ 13 ] The factual field may well be appropriately taken by the Superior Court judge hearing the appeal. This court should not risk bringing the administration of justice into disrepute by taking

part in a procedure that risks non-compatible decisions over the same subject matter. [ 14 ] The society could have simply appealed on the record that existed when the decision of 15 October 2011 was made. It did not. The society could have placed before this court substantially different facts from those sought to be used in evidence on appeal. It does not. The society could have abandoned the appeal before bringing this matter before this court. It did not. [ 15 ] At best this motion is premature. The society must await the outcome of the appeal.

If the presiding judge on appeal refuses to consider the fresh evidence, no conflict exists and this matter can be heard on its merits. If the presiding judge on appeal allows the fresh evidence to be considered that matter is identical to this and a conflicting judgment must be avoided by this matter being dismissed because this matter will simply be a re-hearing of what was already decided on the appeal. [ 16 ] This motion is stayed to await the outcome of the appeal. Dated at Brantford, Ontario this 12th day of July, 2011.

Signed: “Justice Lawrence P. Thibideau”