2020 ONCJ 301, 2020 ONCJ 301

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7) , 87(8) and 87(9) of the Act . These subsections and subsection 142(3) of the Act , which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — 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, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re 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) Prohibition re identifying person charged .— 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. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(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. CITATION : Children’s Aid Society of Toronto v. A.A.C., 2020 ONCJ 301 DATE : June 26, 2020 COURT FILE NO. C1403/19 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) ) ) CHILDREN’S AID SOCIETY OF TORONTO ) ALEX DE MELO, for the APPLICANT ) APPLICANT ) ) - and - ) ) ) )

A.A.C. and B.R. ) ) THE RESPONDENTS NOT PARTICIPATING RESPONDENTS ) ) ) HEARD: In Chambers JUSTICE S.B. SHERR ENDORSEMENT Part One – Introduction [ 1 ] Within its amended protection application, the applicant (the society) has brought a Form 14B motion, without notice, seeking the following relief:

a) Approving irregular service of its amended protection application on the respondent A.A.C. (the mother).

b) An order noting the mother in default. [ 2 ] The mother was served with the society’s protection application on November 28, 2019. The respondent B.R. (the father) was served with the protection application on January 15, 2020. Neither parent filed an answer/plan of care. [ 3 ] The society amended its protection application on April 30, 2020 and sent it to the mother by encrypted email on May 6, 2020. The mother sent an email to the society on May 13, 2020 acknowledging service.

On this basis, the society’s request for approval of irregular service on the mother as of May 13, 2020 is granted. [ 4 ] The mother has not filed an answer/plan of care to the amended protection application. [ 5 ] The father has not been served yet with the society’s amended protection application. [ 6 ] The issue for the court to determine is whether the mother is in default.

Part Two – Background facts [ 7 ] The respondents are the parents of R.C. (the child), who is now 15 months old. [ 8 ] The parents entered into temporary care agreements from April 8, 2019 until July 5, 2019 and from July 7, 2019 until October 8, 2019, placing the child in the society’s care.

[ 9 ] The society issued its protection application seeking the required statutory findings pursuant to subsection 90 (2) of the Child, Youth and Family Services Act , 2017 (the Act ), asking to find the child in need of protection pursuant to subclauses 74 (2) (b) (

i) and (ii) of the Act and asking to place the child in interim society care for six months, with access to the parents. [ 10 ] On November 4, 2019, on a without prejudice basis, Justice Debra Paulseth made an order placing the child in the temporary care and custody of the society. Access to the parents was ordered to be in the discretion of the society. The parents were not present at this court appearance. [ 11 ] The matter returned to court on December 3, 2019. The mother attended at court. The father did not – he had not yet been served with the protection application.

The mother requested and was granted an extension until January 2, 2020 to serve and file her answer/plan of care. [ 12 ] The case returned to court on January 6, 2020 and on February 19, 2020. Neither parent attended. [ 13 ] The case was adjourned on April 3, 2020 due to the COVID-19 pandemic (the pandemic). There was no court attendance. [ 14 ] On April 30, 2020, the society amended its protection application to seek a disposition of extended society care for the child with no access. [ 15 ] The next court date is July 14, 2020.

Part Three – Applicable rules [ 16 ] Subrule 10 (1) of the Family Law Rules (all references to rules are to the Family Law Rules ) sets out that a person against whom an application is made shall serve an answer/plan of care on every other party and file it within 30 days after being served with the application. [ 17 ] Subrule 10 (5) sets out that the consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply, with necessary changes, if a respondent does not serve and file an answer/plan of care within 30 days after being served with the application. [ 18 ] Subrule 1 (8.4) reads as follows: CONSEQUENCES OF STRIKING OUT CERTAIN DOCUMENTS 1

(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise: 1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order). 2. The party is not entitled to participate in the case in any way. 3. The court may deal with the case in the party’s absence. 4. A date may be set for an uncontested trial of the case.

Part Four – Is the mother in default of the amended protection application? [ 19 ] The mother was served with the amended protection application on May 13, 2020. More than 30 days have now elapsed since she was served with it and she has not filed an answer/plan of care. In ordinary times, she would be in default and the consequences set out in subrule 1(8.4) would apply. The court would be free to deal with the case in the mother’s absence and set a date for an uncontested trial.

[ 20 ] However, these are not ordinary times because of the pandemic.

Section 2 of Ontario Regulation 73/20 made under subsection 7.1 (2) of the Emergency Management and Civil Protection Act , provides that any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended, and the suspension shall be retroactive to Monday, March 16, 2020. [ 21 ] Ontario Reg. 106/20 as amended, has set out that this suspension will be in effect until September 11, 2020. [ 22 ] This means that the mother is not in default of the amended protection application.

If the society wishes to ask the court to exercise its discretion regarding the suspension otherwise, as permitted in

Section 2 of Regulation 73/20, it will have to bring a motion seeking this relief on notice to the parents. Part Five – The order [ 23 ] An order shall go on the following terms:

a) Irregular service of the amended protection application on the mother is approved as of May 13, 2020.

b) The society’s request to note the mother in default is dismissed. Released: June 26, 2020 _____________________ Justice S.B. Sherr