Jewish Family and Child Service v. S.K., 2015 ONCJ 605

WARNING The court hearing this matter directs that the following notice 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. COURT FILE NO.: C60417/13 DATE : October 26, 2015 CITATION: Jewish Family and Child Service v. S.K. , 2015 ONCJ 605 ONTARIO COURT OF JUSTICE RE: JEWISH FAMILY AND CHILD SERVICE – Applicant S.K. and J.K. – Respondents BEFORE: JUSTICE R. ZISMAN

COUNSEL: Haley Gaber-Katz, for the Applicant Anthony Macri, for the Respondents as agent for motion only HEARD ON: September 21, 2015 E N D O R S E M E N T 1 . I ntroduction and Background [ 1 ] This is the continuation of a

summary judgement motion brought by the Jewish Child and Family Services (“JCFS”) that was first argued on April 7, 2015 with a decision rendered on May 4, 2015 where the court found that the child R.K. born […], 1999 was in need of protection and ordered that she be made a Crown Ward with access and placed in the care of the JCFS. [ 2 ] JFCS had also sought an order that the Respondents, who are the parents of the child, pay $3,000 per month for the support of their daughter pursuant to

section 60 of the Child and Family Services Act (“CFSA”). At the hearing of the

summary judgement motion it was agreed that this relief would be adjourned pending the outcome of the Respondents’ appeal of the order of Justice Carolyn Jones, who was the case management judge, to file a financial statement. [ 3 ] The appeal was originally scheduled to be heard on May 5 th but as my decision on the

summary judgement motion was released on May 4 th the Respondents requested an adjournment of their appeal and it was then adjourned to September 24 th , 2015. [ 4 ] In the interim the JCFS and the Respondents negotiated an agreement to settle the appeal and agreed that if the Court determined that they were required to make a payment in accordance with

section 60 of the Child and Family Services Act then the Respondents would not be required to file a financial statement and they agreed that they had the financial ability to pay $3,000 per month. Specifically the Respondents agreed that if a

section 60 order is made: 1. They have the ability, capacity and means to provide support for the child R.K.; 2. They have the assets, means and capacity to provide support for R.K. in the amount of $3,000 per month; and 3. They consent to a payment order in the amount of $3,000 per month commencing March 5, 2015. [ 5 ] Therefore the only issue to be determined is whether or not the Court has authority to order the Respondents to make a

section 60 payment for a child that has been made a Crown Ward. 2. Applicable Statutory Provision [ 6 ]

Section 60 of the CFSA provides as follows : 60.

(1) Where the court places a child in the care of, (

a) a society; or (

b) a person other than the child’s parent, subject to a society’s supervision, the court may order a parent or a parent’s estate to pay the society a specified amount at specified intervals for each day the child is in the society’s care or supervision. Criteria

(2) In making an order under subsection (1), the court shall consider those of the following circumstances of the case that the court considers relevant: 1. The assets and means of the child and of the parent or the parent’s estate. 2. The child’s capacity to provide for his or her own support.

3. The capacity of the parent or the parent’s estate to provide support. 4. The child’s and the parent’s age and physical and mental health. 5. The child’s mental, emotional and physical needs. 6. Any legal obligation of the parent or the parent’s estate to provide support for another person. 7. The child’s aptitude for and reasonable prospects of obtaining an education. 8. Any legal right of the child to support from another source, other than out of public money. Order ends at eighteen

(3) No order made under subsection (1) shall extend beyond the day on which the child attains the age of eighteen years. Power to vary

(4) The court may vary, suspend or terminate an order made under subsection (1) where the court is satisfied that the circumstances of the child or parent have changed. Collection by municipality

(5) The council of a municipality may enter into an agreement with the board of directors of a society providing for the collection by the municipality, on the society’s behalf, of the amounts ordered to be paid by a parent under subsection (1). R.S.O. 1990, c. C.11, s. 60 (1- 5). Enforcement

(6) An order made against a parent under subsection (1) may be enforced as if it were an order for support made under

Part III of the Family Law Act . R.S.O. 1990, c. C.11, s. 60 (6) ; 1993, c. 27, Sched. 3. Position of the parties [ 7 ] It is the position of the JFCS that

section 60 of the CFSA permits the Court to make an order for payment of support by a parent when their child is in the care of the society. [ 8 ] Counsel for the child supported the position of the society but made no submissions on the motion. [ 9 ] It is the position of the Respondents that payment pursuant to

section 60 of the CFSA cannot be ordered when a child has been made a Crown Ward and can only be ordered when a child is placed in the temporary care and custody of the society or in the care of a society for a period of wardship. [ 10 ] It is submitted that

section 60 of the CFSA authorizes payment orders and when a court places a child in the care of the society that is, it does not state that payment orders can be made when a child is placed in the care of the Crown. It is submitted that this

interpretation is consistent with the rest of the wording of the CFSA that makes a distinction between temporary care and custody, society wardship and Crown wardship. [ 11 ] It is further submitted that an order for Crown wardship terminates parental rights and that under the law the parents are no longer parents and therefore it is not appropriate to order “former” parents to have to pay child support. 4. Analysis [ 12 ] I do not accept the submissions of the Respondents. Crown wardship orders do not terminate the parental relationship. The legal parent-child relationship is maintained and continues.

It is only an adoption order that terminates the parental relationship. [ 13 ] If R.K. was ever placed for adoption then the Respondents, as parents who have the right of access, would be notified pursuant to

section 145.1 (1) and (2) of the CFSA. If R.K. was placed for adoption then the Respondents would be entitled to vary their support obligation by seeking a termination. [ 14 ] The provisions of the CFSA provide many ways in which the parental relationship continues subsequent to a Crown wardship order. For example, parents of a Crown ward can obtain an access order pursuant to section 59 (2.1) of the CFSA . In this case, the parents have an order permitting access to their child. The parents of a Crown Ward can also commence a Status Review of the child’s status pursuant to

section 65.1 (4) (b). Further, section 61 (5) provides that the society having care of the child must consider the wishes of any parents that have access to a child who is a Crown ward. [ 15 ] Counsel for the Respondents relied on the cases of CAST v. E.S. 2013 ONCA 77 and CAS Waterloo v C.A.D. 2011 ONCA 684 for the proposition that parents of Crown wards are no longer parents. However, neither of these cases stands for this proposition.

Both cases, at paragraph 1 respectively, merely state that: “ An order of Crown wardship without access has the effect of terminating parental rights, making the child eligible for adoption.” [ 16 ] Neither of the cases state that the parents are no longer the parents of the child but merely that the parental rights are terminated. Further in this case, the order made was for Crown wardship with access between the Respondents and their child.

[17] In the case of J.M.S. v. F.J.M. (ON SCDC), [2005] O.J. No. 3085 the Divisional Court indicated that aCrown ward remains a child of his or her parents in law and at paragraph 64 stated as follows: ..Given the statutory scheme of the CFSA, a Crown ward is no longer in the charge of his or her parents, even though he remains theirchild in law.

Therefore, he is not a child of the marriage, either for purposes of an order for support or custody and access under theDivorce Act. [18] In that case, the Divisional Court granted the appeal of an order that one parent was liable to pay child support to the otherparent even though the child had been taken into the care of the society under the CFSA legislation. The two majority opinions and thedissent all commented that support for a child in the care of a society was payable pursuant to

section 60 of the CFSA (See paragraphs27, 67 and 82). Although these comments are obiter in that decision, in my view this is a correct statement of the law. [19] Counsel for JFCS relied on several cases where such payment orders were made. [20] In the case of C.A.S. of the District of Muskoka v. W. (B.) (ON CJ), [1994] O.J. No. 2954 (O.C.J., ProvincialDivision), Justice Wood rejected the parents’ submissions that support should not be payable as the child who was 16 years old hadvoluntary withdrawn from their control.

The Court held that the CFSA was a complete code and it was not appropriate to look at thecommon law or any other statute in order to determine a question that arises in the context of a protection application. Once there is afinding of need of protection and the child is in the care of a society then the CFSA provides for all of the normal custody and accessarrangements that arise which includes the right of seek payment for support. The Court ordered the parents to pay support pursuant tosection 60 of the CFSA. [21] In the case of Children’s Aid Society of Haldimand-Norfolk v. A.(L.M.) [2002] O.J.

No. 3130 (OCJ), Justice Thibideau alsorejected the parents’ submissions that child support was not payable for a child made a Crown ward. In that case, the Court rejected theargument that the stepfather was not a parent and that no support should be payable as the child had voluntarily withdrawn from parentalauthority. Further, the Court held that there was an obligation of a society to seek support from parents.

At paragraph 30 and 34 of thedecision he stated as follows: 30 In addition, the cases cited all relate to the traditional support issues between two parents, each of whom has anobligation to support the child or children in question.

In this case, there is a statutorily mandated power to relieve the public purse of thefinancial obligation of the cost of care of a child in care by requiring a parent to pay the daily cost of care or some portion thereof. ……. 34 The children's aid society operates from the public purse and is entitled to reimbursement, all else being equal, once the criteria insubsection 60(2) of the Act are considered along with any other circumstances that would be germane to the issue. [22] I see no merit in the Respondents’ submissions that there is a distinction due to the wording of

section 60 that only provides forpayment when a child is placed in the care of a society as opposed to an order that the child is made a Crown ward. [23] It should be noted that the actual wording of the Order made in this case, is the typical order made when a child is made aCrown ward that is, “the child R.K. shall be made a Crown ward and placed in the care of the Jewish Child and Family Services ofGreater Toronto”. Therefore, it is clear that the child is placed in the care of a society. [24] In

section 63 of the CFSA, the Crown’s rights and responsibilities as a parent for the child’s custody and control areenumerated and the

section further provides that those rights can be exercised and performed by the society caring for the child. It isclear that although the “Crown” assumes all responsibility for the child she is placed in the care of a child protection society.

Thesubmissions of the parents makes no common sense as surely the society assumes a greater long term financial obligation when a child isplaced in its long term care as opposed to either a temporary order or a time limited society warship order. [25] In view of the Respondents’ agreement that if the Court finds that they should be required to make payments pursuant to section60 of the CFSA that they have the financial means to do so, I find that the criteria set out in section 60 (2) have been satisfied.

The JCFShas assumed the cost of caring for R.K. and she does not have the financial means to pay those costs herself. The Respondents have thefinancial means to pay those costs and they have not disputed that the costs sought are reasonable. [26] There will therefore be an order as follows: 1. The

summary judgement motion with respect to the obligation of the Respondents to make a payment pursuant to

section 60 of theChild and Services Act is granted; 2. The Respondents shall pay to the Jewish Child and Services of Greater Toronto $3,000.00 per month as of March 1, 2015 for thecare of the child R.K. as long as she is in the care of the society up to her eighteenth birthday. ___________________________ Justice Roselyn Zisman

DATE: October 26, 2015