NP v DB, 2013 ONCJ 607

COURT FILE NO.: 168/13 DATE : 2013-11-12 Citation: NP v DB , 2013 ONCJ 607 ONTARIO COURT OF JUSTICE RE: N.P. and I.B. – Applicants D.B. – Respondent D.H. – Respondent BEFORE: Justice Roselyn Zisman COUNSEL: Charlotte Murray for the Applicants Ian Mang for the Respondent D.B.

HEARD ON: October 28, 2013 RULING ON PRELIMINARY JURISDICTIONAL ISSUE [ 1 ] This is a motion by both counsel for directions as to the proper forum and jurisdiction to hear a motion to change an order made by Justice Lafreniere dated April 28, 2008 in the Superior Court of Justice, Family Court Branch in Hamilton. [ 2 ] The issue to be determined is whether the motion to change should be heard in the Ontario Court of Justice or the Superior Court of Justice. [ 3 ] The order sought to be varied was made in the context of child protection proceedings wherein the Children's Aid Society of Hamilton was the applicant.

The order provided that N.P. and I.B., the child’s step-grandmother and grandfather, be granted custody of the child S.B. born […], 2005 and that the respondent mother D.B. and respondent father D.H. be granted access at the discretion of N.P. and I.B..

The order also provided that the Children's Aid Society of Hamilton be provided with notices of any future motions to vary or any custody/access applications. [ 4 ] The respondent mother in her motion to change is seeking specified access and other ancillary relief. [ 5 ] The Children's Aid Society of Hamilton was served with the motion to change and takes no position.

The Children's Aid Society of Halton was also served and has indicated to counsel that it has had no involvement with any of the parties and therefore takes no position. [ 6 ] It appears from the initial style of cause that the respondent mother sought to commence this motion to change Hamilton but as the applicants and the child reside in the Region of Halton it is agreed by counsel, pursuant to Family Law Rules subsection 5 (1) (b), that the court in Milton in the Region of Halton, is the proper jurisdiction to deal with any variation of the access order. [ 7 ] As this jurisdiction is not a unified court site, the issue to be determined is whether or not the motion to change should be heard in the Ontario Court of Justice or the Superior Court of Justice.

[ 8 ] If the motion to change had been heard in Hamilton this issue would not arise as it is a Superior Court, Family Branch site (that is, a unified court) and has jurisdiction to hear both proceedings pursuant to the Children's Law Reform Act and the Child and Family Services Act . [ 9 ] To put this issue in context is it important to review the provisions of

section 57.1 of the Child and Family Services Act [1] . [ 10 ]

Section 57.1 provides as follows: Custody order 57.1

(1) Subject to subsection (6), if a court finds that an order under this

section instead of an order under subsection 57 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. Deemed to be order under Children's Law Reform Act

(2) An order made under subsection (1) and any access order under

section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under

section 28 of the Children's Law Reform Act and the court, (

a) may make any order under subsection (1) that the court may make under

section 28 of that Act; and (

b) may give any directions that it may give under

section 34 of that Act. Restraining order

(3) When making an order under subsection (1), the court may, without a separate application, make a restraining order in accordance with

section 35 of the Children's Law Reform Act, Same

(4) An order under subsection (3) is deemed to be a final order made under

section 35 of the Children's Law Reform Act, and shall be treated for all purposes as if it had been made under that section. Appeal under s. 69 (5) Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under

section 58 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the orders under

section 69. Conflict of laws

(6) No order shall be made under this

section if, (

a) an order granting custody of the child has been made under the Divorce Act (Canada) ; or (

b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court. [ 11 ] It is clear from these provisions that an order made pursuant to

section 57.1 (2) of the Child and Family Services Act is deemed to be a custody order made pursuant to the Children's Law Reform Act , except for the purposes of an appeal (section 57.1 (5). [ 12 ] This is also made clear in section 28 (2) and (3) of the Children's Law Reform Act that provides that:

(2) If an application is made under

section 21 with respect to a child who is the subject of an order made under

section 57.1 of the Child and Family Services Act , the court shall treat the application as if it were an application to vary an order made under this section.

(3) If an order for access to a child was made under

Part III of the Child and Family Services Act at the same time as an order for custody of the child was made under

section 57.1 of that Act, the court shall treat an application under

section 21 relating to access to the child as if it were an application to vary an order made under this section.

[ 13 ] However, counsel submits that this may not be quite as clear as

section 65.2 of the Child and Family Services Act provides that a parent can bring a status review application, pursuant to

section 65.1 and the court may, in the child’s best interests terminate or vary any order mad under

section 57. [ 14 ] Although it is correct that a parent could bring a status review application there is nothing in the status review provisions that provides a parent can vary or terminate a

section 57.1 order in the context of child protection proceedings. [ 15 ] Section 65 (1) of the Child and Family Services Act provides that a court on a status review application can make several orders namely: Court may vary, etc. 65.--

(1) Where an application for review of a child's status is made under

section 64, the court may, in the child's best interests, (

a) vary or terminate the original order made under subsection 57 (1), including a term or condition or a provision for access that is part of the order; (

b) order that the original order terminate on a specified future date; (

c) make a further order or orders under

section 57; or (

d) make an order under

section 57.1. [ 16 ] Therefore, on a status review, the court may vary or terminate an order made pursuant to section 57 (1) of the Child and Family Services Act placing a child in the care or custody of a parent or other person. [ 17 ] Further, on a status review, a 57.1 order can be made. This is a logical provision as it may be that although a finding of need of protection has already been made, there is no longer any need for society intervention but it is in the child’s best interests that a

section 57.1 custody order and any ancillary orders should be made. [ 18 ] The clear legislative intention is that any

section 57.1 order be treated thereafter as any other custody order and dealt with pursuant to the applicable legislation. [ 19 ] In fact, it would be contrary to the legislative intention for any change to a

section 57.1 order be heard in the context of child protection legislation since the purpose of such an order is to remove the state from any further involvement in the family. [ 20 ] If then a

section 57.1 order made pursuant to the Child and Family Services Act is to be treated as a custody order pursuant to the Children's Law Reform Act, counsel submits it is not clear which level of court should hear the motion to change. [ 21 ] The Court of Justice Act,

section 21.1 (1) creates a branch of the Superior Court of Justice, known as the Family Branch and pursuant to

section 21.8.3 sets out a

schedule of statutes that the court has jurisdiction to deal with, one of which is the Child and Family Services Act. [ 22 ] It is submitted that the issue then raised is whether or not when the child protection proceedings were heard in the Superior Court of Justice Family Branch , was the presiding judge sitting as a Superior Court judge or as a judge of the Ontario Court of Justice. [ 23 ]

Section 57.1 (6) has contemplated the potential for a conflict of jurisdictions and has provided that in the event of any such conflict, any order of the Superior Court of Justice would take precedence. [ 24 ] I find that when this case was before the Superior Court of Justice, Family Branch, that the presiding judge was sitting in the capacity of a superior court justice with the statutory right to hear a child protection case pursuant to the Child and Family Services Act. Once the

section 57.1 order was made, it was deemed to be a custody order, pursuant to the Children's Law Reform Act, made in the Superior Court of Justice and therefore any variation of that order should properly proceed in the Superior Court of Justice. [ 25 ] Therefore, this motion to change shall be transferred to the Superior Court of Justice in Milton. Counsel should contact the trial coordinator to obtain a return date. ___________________________ Justice Roselyn Zisman

DATE: November 12, 2013