Huron-Perth Children's Aid Society v. R.C.K., 2015 ONCJ 657

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 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. ONTARIO COURT OF JUSTICE DATE: 2015·11·23 COURT FILE No.: Goderich 15 34 CITATION: Huron-Perth Children's Aid Society v. R.C.K. , 2015 ONCJ 657 BETWEEN: HURON-PERTH CHILDREN'S AID SOCIETY, Applicant, — AND — R.C.K. AND R.L.B., Respondents. RULING ON MOTION TO EXTEND TIME FOR THE RESPONDENT MOTHER TO FILE AN ANSWER

Before Justice Brophy Heard on 10 November 2015 Reasons for Ruling released on 23 November 2015 Barbara Tuer ........................................................................ counsel for the applicant society Philip Cornish .................................................................... counsel for the respondent R.C.K. No appearance by or on behalf of R.L.B., even though served with notice Timothy G.

Macdonald ............................... counsel for the Office of the Children’s Lawyer, legal representative for the children BROPHY J.: INTRODUCTION [ 1 ] This is a ruling on a Motion to extend the time for the respondent mother R.C.K. to file an Answer. [ 2 ] This matter was set for a settlement conference on 16 October 2015. The settlement conference did not take place.

Counsel for the respondent mother did not attend and the respondent mother did not attend court on time. [ 3 ] The settlement conference date had been set on 30 June 2015 on the understanding that the respondent mother would file an Answer on or before 7 July 2015. The answer was never filed. [ 4 ] The Justice presiding on 16 October 2015 adjourned the matter for an uncontested trial on 10 November 2015. PROCEDURAL HISTORY [ 5 ] The procedural history of this matter is as follows. The respondent mother gave birth to twins, J.B. and M.B., in London on […] 2015. The children were apprehended from the hospital.

The protection proceedings commenced 27 February 2015 in London where a temporary care and custody order was made on a without prejudice basis placing the children with the Society and the file was transferred to Goderich and appeared in this court for the first time on 10 March 2015. There were some administrative delays in transferring the physical file until 24 March 2015. However it should be noted that Philip Cornish first appeared on the matter on 17 March 2015 on behalf of the respondent mother. [ 6 ] On 24 March 2015, with Mr.

Cornish in attendance for the respondent mother and with neither the father nor the mother appearing, the matter was adjourned to 7 April 2015, when Mr. Cornish again appeared, but without the respondent mother, at which time 21 April 2015 was set for argument with respect to the temporary care and custody motion and

section 38 counsel was appointed. [ 7 ] On 21 April 2015 neither Mr. Cornish nor the respondent mother appeared to argue the motion and no material was filed by either of the respondent parents. The temporary care and custody order was confirmed and the without prejudice designation was removed. In addition, because they were out of time, leave was granted to the respondent parents to file Answers on or before 1 May 2015. [ 8 ] On 5 May 2015 the Protection Application was spoken to with duty counsel acting as agent for Mr.

Cornish on behalf of the respondent mother who again did not attend. (In fact to that point she had not yet appeared on any court date.) As the respondent parents had not complied with the Order of 21 April 2015 requiring them to file Answers by 1 May 2015 they were noted in default and the case was adjourned to 12 June 2015 for an uncontested trial. [ 9 ] On 12 June 2015 the respondent mother appeared, but Mr. Cornish did not. The mother sought to reopen the proceedings.

As a result of her representations the Protection Application was adjourned to 23 June 2015 p.m. so that she could bring a motion to reopen the pleadings. A specific direction was made that the material in support of that motion was to have attached a draft Answer and Plan of Care. The uncontested trial was adjourned to that same date. [ 10 ] On 23 June 2015 Mr. Cornish appeared, as did the Respondent mother. Mr. Cornish advised the court that he had not yet filed the motion to reopen the pleadings.

After discussion it was ordered that the Protection Application would be adjourned to 30 June 2015 p.m. to allow the motion to be served and filed and for argument on same if necessary. Again the uncontested trial was adjourned, to that same date. [ 11 ] On 30 June 2015 with the consent of the Society and counsel for the children leave was granted to the respondent mother to file an answer on or before 7 July 2015. Most importantly the Protection Application was then adjourned to 16 October 2015 for a settlement conference. EVENTS OF 16 OCTOBER 2015

[ 12 ] It was anticipated that the Answer would be filed as promised by Mr. Cornish. That was the reason for the setting of a settlement conference on the date in October. In this jurisdiction settlement conferences are carefully scheduled in accordance with the available resources and substantial lead time is necessary. [ 13 ] On 16 October 2015 Mr. Cornish did not attend court as a result of a conflict in his

schedule with respect to an in custody criminal trial that was continuing in Walkerton. In his submissions on 10 November 2015 he said that the trial did not complete on time and the only available date for early continuation was 16 October 2015 and he agreed to continue the trial that date. He made that decision knowing that he was duty bound to appear on the settlement conference in this case. He should not have agreed to continue the criminal trial on the 16 th of October.

To compound the problem he had neglected to file the Answer and he did not serve and file a settlement conference brief, although one was served by fax on counsel for the Society the evening before the settlement conference was to be held. [ 14 ] It also appears that the respondent mother did not attend on 16 October 2015 until well after the matter had been called and addressed. [ 15 ] Justice Caspers presiding on 16 October 2015 recognized that the Answer was in default and decided that the matter had to proceed to an uncontested trial.

Accordingly she made an endorsement that the respondent mother was in default. This was simply recognition of the fact that the mother had not filed an Answer. The case was then adjourned to 10 November 2015 for an uncontested trial. The matter then came in front of me on that date. MOTION TO EXTEND TIME [ 16 ] The respondent mother has now brought a motion asking the court to set aside the noting in default.

Although not stated, implicit in that prayer for relief is a request that once again the respondent mother be granted leave to file an Answer. [ 17 ] The fundamental question before the court is whether or not the respondent mother should be allowed to file an Answer. In other words should she be granted leave to do so yet again.

ARGUMENT BY COUNSEL FOR THE MOTHER [ 18 ] The argument made by counsel for the respondent mother is twofold. [ 19 ] First, it is argued that Justice Caspers lacked jurisdiction to make an order noting the respondent mother in default. [ 20 ] Second, there is an equitable argument made as to whether or not the court should at this late date extend time for the respondent mother to file her Answer so as to allow her to participate in this stage of the proceedings.

Jurisdictional Argument [ 21 ] The Respondent mother says that the endorsement noting the respondent in default and adjourning this matter for an uncontested trial was made in the context of a settlement conference and that it was an order that disposed of the case. [ 22 ] The Respondent mother relies upon Jones v. Jones , 2014 ONSC 2122 , and Afful v Laing , 2014 ONSC 74 .

These cases stand for the principle that judges are not to make substantive orders in conferences unless the parties have been put on notice about same. [ 23 ] At paragraph 17 in Jones the court states that the complaint was that the judge presiding at a settlement conference made a “wide sweeping substantive order” without the consent of both parties. The Jones decision references the Afful decision, which in turn refers back to A.B. v. N.L.A. , 2013 ONSC 2990 . Both Afful and A.B. were decisions by Czutrin J.

In A.B. at paragraph 131 Czutrin J. concludes by saying “Frankly, I cannot think of any circumstance where a final substantive dispositional order should be made at a conference where there is an answer and opposition.” [ 24 ] It should be noted that in Jones , A.B. and Afful there were either active settlement or case conferences underway. [ 25 ] However, in the instant case the settlement conference did not actually take place. There was no Answer.

And in fact no one appeared for the Respondent mother and there was no opposition. [ 26 ] There could be no settlement conference because there were no respondents properly before the court. Barbara Tuer on behalf of the Society emphasized that the respondent mother had no rights to expunge. She had not filed her Answer and needed further leave from the court to proceed. Rule 10 says that an Answer is to be filed within 30 days.

If it isn’t then an extension must be obtained pursuant to Rule 3. [ 27 ] Jones , Afful and A.B. are clearly distinguishable and not applicable to this case. [ 28 ] Here the respondent mother was in default in that she had not filed her Answer as provided for in a court order, that is to say on or before 7 July 2015. Justice Casper’s endorsement simply acknowledged that there was a default. It was not an independent order with a dispositive effect.

Justice Caspers recognized that an Answer had not been filed and that the respondent mother was in default with respect to same and that no one had appeared on the matter. She decided that the next procedural step was to proceed to an uncontested trial. This was not a case where she was striking out an answer or in fact making any dispositive ruling. Justice Caspers recorded what in fact was accurate, that is to say that the mother failed to file an Answer, not once but three times. Accordingly she was in default.

This was not a wide sweeping substantive order. [ 29 ] Although the matter had been set for a settlement conference in anticipation of compliance with the Order of 30 June 2015, as matters transpired the respondent mother failed to comply with that order and the case was in exactly the same position that it had been in earlier, but now with approximately four months having been lost, and with no Answer from either of the respondents.

[ 30 ] The endorsement made by Justice Caspers that the Respondent mother was noted in default was not a dispositive order. Indeed the statement that a party is in default is merely recognition of an external truth – that is to say that the party was in default. [ 31 ] In my view Justice Caspers was confronted with a failure on the part of the mother and her counsel to participate in the proceeding in a meaningful way and ruled that the matter should proceed to an uncontested trial, which was the next logical step.

In doing so she acted in accordance with the case management powers she had pursuant to Rule 2(2) to (5), which can be summarized as - be fair, but move the case along. [ 32 ] The jurisdictional argument fails. [ 33 ] This leads to the next consideration. Should there be a Further Extension of Time to File an Answer [ 34 ] The endorsement of Justice Caspers made 16 October 2015 sets out the same procedural history that has been described above. In addition Justice Caspers observed that as at 16 October 2015 this child protection proceeding had been outstanding for 209 days.

Justice Caspers commented that on 16 October 2015 Mr.

Cornish was not present and did not send an agent, the respondent mother was not present, the Answer and Plan of Care of the respondent mother was not filed as ordered by the court on 30 June 2015, and no settlement conference brief was produced. [ 35 ] Justice Caspers said that time is the right of a child not the right of the parent and after observing that the case involved two very young children who had not yet reached the age of one year and the case was now well beyond the timelines set out in the Rules, she adjourned the matter for an uncontested trial on 10 November 2015. [ 36 ] Mr.

Cornish argues that his client should not be punished for his error. He said the Answer was circulated and indeed was signed on 30 June 2015 and that it was simply misadventure that it was not filed. He also says that he sent a letter to counsel on 14 October 2015 advising them of his conflict and inability to attend court on 16 October 2015. [ 37 ] He then goes on to say that because of the responses he received from the children’s lawyer and the Society it suggested to him that they had agreed to adjourn the settlement conference.

He argues that if the matter had been adjourned and his client had been allowed to file the Answer there would have been no mischief. [ 38 ] Timothy Macdonald on behalf of the Office of the Children’s Lawyer responded to Mr. Cornish’s letter on 15 October 2015 saying that the settlement conference would not be productive without the Answer having been filed and without the provision of information related to a methadone program the respondent mother was participating in and also information related to her counselling efforts. Mr.

Macdonald then simply accepted that the matter would have to go to a new date to consider what the next steps should be. [ 39 ] Ms. Tuer on behalf of the Society responded to Mr. Cornish’s letter on 15 October 2015 to the following effect. She advised that the next available settlement conference date would not be until March of 2016. She also said that given the young age of the children the Society expected that the application would be adjourned to a date in early November 2015 and that she would be seeking to note the respondent mother in default. [ 40 ] In argument Ms.

Tuer points out that the child protection application seeks a Society wardship order only. Under the terms of the legislation a Society wardship order would only be available for a few more months. After that the Society would have to seek a Crown wardship order. [ 41 ] The position of the Society on the motion is that there have been numerous extensions in the past and allowing the respondent mother back into the action by granting leave to file an Answer works a great prejudice to the children because of delay.

A new settlement conference date would have to be set and that would not happen until March or April of 2016 at the earliest. This would be more than a year after they were taken into care. Subsequent to that the matter probably would not be on a trial list until the fall of 2016. [ 42 ] It should be noted that Mr. Cornish said that his information was that there was one further slot for a settlement conference available in October of 2015, although he produces nothing to confirm same.

In any event this is not of great assistance because there was no one addressing the issue of whether this settlement conference could be moved to that date. There was no one for the mother who was in a position to speak to that question. [ 43 ] There is also the matter of a proposal made by the respondent mother about a possible kinship placement. Mr. Cornish argues that this should be dealt with now and forcing the matter on would take away from that possible kinship plan. However that kinship placement can continue to be studied to see if it has legs even while a Society wardship order is outstanding.

It also begs the question as to why it has taken six months to develop that plan. [ 44 ] The court is mindful of the requirement that a parent receive procedural fairness in a child protection proceedings and that natural justice be afforded to every person. [ 45 ] In this case it can hardly be said that the mother has not had an opportunity to respond. Indeed she has been granted three separate extensions to file an Answer and has failed to do so.

She has been provided many opportunities to be present in the litigation and has failed to follow the Rules. [ 46 ] Natural justice means that a litigant has the right to be heard and to make their case in a fair proceeding. It does not mean that they can flout the Rules, fail to participate, and then indicate that they are being treated unfairly. [ 47 ] The fundamental problem is that any delay in dealing with this matter works to the disadvantage of these very young children and is prejudicial to their right to a permanency plan. The Society argues that the rights of the children should be paramount and should

not be subject to interminable delay. [ 48 ] Rule 33 sets up timelines for child protection proceedings. Settlement conferences are to be conducted within 80 days after the commencement of the application. A hearing is to be held within 120 days. Clearly this case is well beyond those guidelines. [ 49 ] What is the reason for the urgency that has been expressed in these short timelines? [ 50 ] It is that children need to be dealt with promptly and with a view to establishing a permanent situation for them that allows for a stable upbringing. This is not rocket science.

It is straightforward logic associated with what we know about child development. Child protection matters should promote finality for children and one way in which to do that is to move the case along as quickly as resources will allow. There is no room for delay. Delay is the mischief that has been caused by the inattention of counsel for the respondent. [ 51 ] This has been expressed recently in Huron-Perth Children’s Aid Society v.

R.C.K. , 2015 ONSC 3023 , wherein Leach J. states: 37 In my view, legislative recognition of the inherent prejudice sustained by children, as a result of delays in litigating such disputes, is reflected in the legislation governing child protection matters. 38 For example, in dealing with child protection proceedings, the Child and Family Services Act, supra , contains various provisions requiring expeditious hearings, (section 46), limiting the duration of adjournments, (section 51), and requiring the court to fix hearing dates (section 52). 39 Similarly, Rule 33 of the Family Law Rules sets a very definite timetable for every child protection case, and Rule 38 expressly shortens otherwise applicable time limits for appeals found in numerous cross-referenced Rules of Civil Procedure .

See also Huron-Perth Children ’s Aid Society v. R.C.K. , 2015 ONSC 5023 at paragraph 31 . [ 52 ] This urgency has been spoken about most forcefully in a recent decision by the Court of Appeal in C.M. and B.J.V. v The Children’s Aid Society of the Regional Municipality of Waterloo , 2015 ONCA 612 . In that decision the Court of Appeal said the following: 30 After setting out his chronology, the Superior Court appeal judge noted that none of the legislated time limits under the CFSA "were even remotely adhered to" in this case.

He expressed concern about the failure to follow the statutory requirements as well as the overall delay. He also expressed the hope that counsel would bring his concerns to the attention of those who can affect meaningful change. 31 We echo the Superior Court appeal judge's concerns. We go further and state that it is imperative that judges, court administrators, counsel (particularly counsel for Children's Aid Societies) and assessors take responsibility for ensuring adherence to statutorily required timelines. ... 35 We acknowledge that additional factors may contribute to delay in particular cases.

It is our hope, however, that all those involved in the child welfare system will do their part to minimize delay and promote finality for children. The children involved in this system deserve better. CONCLUSION [ 53 ] In assessing this matter a number of factors need to be taken into consideration: (

a) The respondent mother has only had access with the children on six occasions since their birth in […] 2015. (

b) The respondent mother has failed to participate meaningfully in the child protection process by attending court and providing information to the parties about what efforts she has made concerning her counselling and methadone treatment program. (

c) The respondent mother has either on her own or through the errors of counsel not filed an Answer and Plan of Care setting out what her response to the child protection application is and what her plan would be to attend to the needs of these children. Indeed she has failed to do so three times. (

d) The Child and Family Services Act , R.S.O. 1990, c. 11, as am., in

section 70 limits the time during which a child can be made a Society Ward. That limit is fast approaching and should not be allowed to expire without comment. (

e) A new settlement conference date would not become available until March or April of 2016, which flies in the face of the urgency principles set out in the timelines provided for in the Rules and in the invocation made by the Court of Appeal that matters of this nature have to be dealt with promptly. (

f) The Society is seeking a Society wardship order for six months only. As such there will be a status review within a very short time period where the respondent mother can re-engage in the process. (

g) Finally, the question is, as always, what is in the best interests of the children. This is not a case about what is in the best interests of the mother, but rather what is the best thing to do to support the children. Delay is inherently prejudicial to the well-being of children and is not in their best interests. [ 54 ] After reviewing all of the above factors and the procedural history of this case, in my view granting further leave to file an Answer would be harmful to the best interests of the children in that it would cause unconscionable delay.

[ 55 ] Consequently the respondent mother is not given further leave to file an Answer and Plan of Care and the matter should proceed to an uncontested trial. To permit otherwise would allow delay to harm the long term interest of these very young children. [ 56 ] The respondent mother will be able to make a fulsome response at the time of the Status Review. [ 57 ] The Motion is therefore dismissed. Released: November 23, 2015 Signed: “Justice Brophy”