Catholic Children’s Aid Society of Toronto v. L.D. and A.Z.

COURT FILE NO.: FS-18-420

DATE: 20180516


SUPERIOR COURT OFJUSTICE – ONTARIO

RE:           Catholic Children's Aid Society of Toronto, Applicant/Respondent in Appeal


AND:

L.D., Respondent/Appellant

AND:

A.Z., Respondent/Respondent in Appeal

BEFORE: MESBUR, J.

COUNSEL: John Schuman and Ira Marcovitch, for the Appellant, L.D.

Mei Chen, for the Respondent in Appeal, Catholic Children's Aid Society of Toronto

A.Z., Respondent in Appeal, in person

HEARD:    May 7, 2018


ENDORSEMENT


Introduction:
[1]  This is an appeal from a temporary care and custody order made in the Ontario Court of Justice on February 2, 2018 in relation to the twin daughters of L.D., the mother, and A.Z., the father. The children will be turning six in August. The Catholic Children's Aid Society of Toronto (the Society) commenced protection proceedings in relation to the children on September 28, 2017. This came in the midst of lengthy domestic proceedings in the Ontario Court of Justice which have been ongoing virtually since the children were born.

[2]  The domestic proceedings had numerous major events. They were interspersed with one other brief proceeding by the Society. I have set out below the major steps in court concerning these children. I have highlighted the protection events in italics:

a)         October 3, 2012 mother starts application

b)         January 22, 2013 final custody order to mother with access to father

c)          May 28, 2013 father's access temporarily suspended

d)         October 18, 2013 father's access to be supervised. He is to participate in a parenting course

e)         January 21, 2014 Society begins protection application

f)            February 24, 2014 Society withdraws protection application

g)         February 24, 2014 order allowing paternal aunt to accompany father on access

h)          May 30, 2014 case adjourned on consent for period of supervised access

i)             July 23, 2014- June 5, 2015 repeated adjournments on consent

j)             June 16, 2015 order for father to have reasonable access on reasonable notice. Order for financial disclosure

k)          June 16, 2015 to December 11, 2015 repeated adjournments

l)             March 18, 2016 Final order for support. Both parties permitted to travel with children

m)       September 1, 2016 father starts motion to change June 16, 2015 order

n)          November 8, 2016 some issues resolved on consent in motion to change

o)         November 8, 2016 to May 23, 2017 various adjournments of motion to change

p)         May 23, 2017  temporary motion to change argued before Cohen J. Decision reserved.

q)         June 1, 2017 Cohen J releases decision on temporary motion in motion to change.

r)           August 3, 2017 mother files motion re parenting, restraining orders etc.

s)          August 4, 2017 Murray J orders non removal of children. Adjourned to a later date

t)            August 11, 2017 Nevins J grants further adjournment to October 19, 2017

u)          September 28, 2017 Society commences current proceedings.

[3]  As can be seen, mother has had an order for sole custody of the children since 2013. Father has had the right to access to the children consistently, apart from brief periods when his access was either suspended or supervised. Father was ordered to pay child support for the children in the domestic proceedings.

[4]  In 2017, both parties sought to change the final order regarding access. In written reasons released June 1, 2017, Cohen J made an order concluding the original domestic proceedings. She amended the mother's motion to change to include a claim for child support and s.7 expenses. She deemed the temporary consent order of November 2016 to be a temporary order in the motion to change proceedings. She set out an access schedule for father to see the children. This included Fridays overnight, and Tuesdays overnight. The order went on to require father to "ensure that the children's skin care needs (eczema) are attended to while the children are in his care, and that their dietary restrictions are respected."[1] The endorsement went on to provide for disclosure from the father. It prohibited both parties from removing the children from the Greater Toronto area without the consent of the other party or a court order.

[5]  In August of 2017 the parties were before the court again. This time they both sought urgent relief. Nevins J was highly critical of both parties, particularly the father. He determined that "the matter should be moved as expeditiously as possible to a viva voce hearing to determine access by the applicant father.[2]

[5]  The Society began these protection proceedings on September 27, 2017.[3] The Society alleged the children were at risk of physical and emotional harm in the mother's care. Initially, the Society sought an order that the children be placed with their parents, subject to the supervision of the Society for a period of six months. It proposed the following terms and conditions for a supervision order:

a) [The mother] shall not use any physical discipline toward the children;

b)[The mother] shall ensure the children are not exposed to any inappropriate adult conflict;

c) [The mother] shall enrol the children in school and ensure they attend regularly and on time;

d)[The mother] shall participate in parenting courses as recommended by the Society, to learn about child development and positive parenting discipline methods, and shall follow through with any reasonable recommendations made by the program facilitator(s);

e) [The mother] shall participate in counselling to improve her coping and communication strategies and shall follow through with any reasonable recommendations made by the counsellor;

f)   [The mother] shall sign consents to release of information in relation to the children's school, daycare, family physician, and other collaterals as requested by the Society;

g)[The mother] and [the father] shall not engage in arguments or disputes in the presence of the children;

h) [the mother] and [the father] shall participate in services to improve their ability to communicate for the purposes of co-parenting;

i)    [The mother] and [the father] shall allow the Society worker(s) to conduct both announced and unannounced home visits and shall allow the Society worker(s) to meet privately with the children as and where requested;

j)    [The mother] and [the father] shall work cooperatively with the Society.

[7] The Society's notice of motion went on to request an order directing that the father have parenting time with the children on alternate ] weekends from Friday after school until Sunday evening at 6:00 as well as overnight access on alternating Wednesdays with pick up and drop off at the children’s school.

[7]     The first court appearance in the protection case was before Weagant J on October 18, 2017. On consent of the parties he ordered the children be placed in the temporary care and custody of both parents, without prejudice, on the following terms:

a)Mother shall not use physical discipline with the children’

b)Both parents shall ensure the children are not exposed to inappropriate
adult conflict;

c) Mother shall enrol the children in school and ensure they attend regularly and on time;

d)Mother shall sign consents to release of information in relation to the children's school, pediatrician and naturopath as requested by the Society;

e)The parents shall allow the Society worker(s) to conduct announced home visits and shall allow the Society worker(s) to meet privately with the children as and when required;

f)   The parents shall work cooperatively with the Society worker(s) and provide updated contact information at least 48 hours prior to any changes occurring.

Father was awarded overnight visits every Tuesday and Friday.

[9] November 21, 2017 was the next court attendance in the protection proceeding. At this time, the motions judge had just been assigned as the new case management judge. This appearance was a case conference and marked the parties' first appearance before the motions judge. The focus of the conference was on scheduling the hearing of the Society's motion for temporary care and custody, including a timetable for the Society to provide disclosure and an amended notice of motion if it wished to. Timelines were set for the parents to deliver additional material. The motions judge also dealt with father's access in the interim.

[10] During this November case conference, the motions judge made several comments. First, at page 13 of the transcript he says: "I'm not changing the temporary placement only to change it again. I want to hear this properly based on a full record." He then went on to set a timetable for delivery of materials for the return of the temporary care and custody motion. This included the Society's filing an amended motion, if it chose to, plus and updated affidavit. The parents were to respond to new facts in new affidavits. Importantly, the motions judge said at page 50 of the transcript; "Both parties to file 14Cs advising me what to read on the return date." His handwritten endorsement at this case conference confirms this, saying: "Parties to file 14Cs advising me what to read on return date."[4]

[11] Finally, the motions judge asked, at page 52: "Okay, what doI have to do with the domestic? Nothing? Just adjourn it?", to which the Society's counsel responded "Yes, it should follow this one." From these statements I infer the domestic proceeding was to be adjourned until after the protection proceedings were concluded.

[12] The parties complied with the timetable set at the conference on November 21. The Society did, indeed, file a fresh notice of motion. It is dated December 14, 2017. It now asked for the following relief:

a)Varying the current temporary order [i.e. the Weagant order] to an order placing the children in the temporary care and custody of their father subject to the supervision of the Society.

The amended notice of motion asked for the following conditions to be imposed on the father:

a)That he ensure the children are not exposed to any inappropriate adult conflict;

b)That he shall ensure that the children attend counselling programs that address the impact of being exposed to adult conflict;

c) That he attend for reasonable services as recommended by the Society;

d)That he sign consents to release of information in relation to the children's school, day-care, family physician, and other collaterals as requested by the Society;

e)That he shall allow the Society worker(s) to conduct both announced and unannounced home visits and shall allow the Society worker(s) to meet privately with the children as and where requested.

[13] The amended notice of motion went on to ask for the following conditions to be imposed on the mother:

a)That she participate in counselling to improve her coping and communication strategies and shall follow through with any reasonable recommendations made by the counsellor;

b)That she shall participate in counselling with a focus on parental alienation and other services as are reasonably recommended;

c) That she shall not use any physical discipline toward the children;

d)That she shall participate in parenting courses as recommended by the Society, to learn about child development and positive parenting discipline methods, and shall follow through with any reasonable recommendations made by the program facilitator(s);

e)That she shall participate in an assessment with respect to her emotional, social and relational well-being;

f)   That she shall sign consents to release of information in relation to her service providers as requested by the Society.

[14] The amended notice of motion asked for the following conditions to be imposed on both parents:

a)That they not engage in arguments or disputes in the presence of the children;

b)That they shall not record (audio or video) or take pictures the children for the purpose of getting a disclosure;

c) That they shall not speak negatively about each other to the children or to others in the presence of the children;

d)That they shall participate in services to improve their ability to communicate for the purposes of co-parenting;

e)They shall work cooperatively with the Society worker(s) and provide updated contact information at least 48 hours prior to any changes occurring.

[15] The last substantive relief the Society sought was:

An order that access between the children and their mother...shall be supervised at the Society's discretion, including location and duration thereof and in consideration of the wishes of the children.

[16]The relief the Society sought in its amended Notice of Motion was markedly different from what they had initially requested less than three months earlier. It also was a marked departure from the prior custody/access orders that had been made in the domestic file from shortly after the children were born until immediately before the Society commenced the current protection proceeding.

[17] The next scheduled appearance in the protection case was on January 25, 2018 for argument on the motion for temporary care and custody. As I have set out above, the Society had changed its request, and asked that the children be placed in the temporary care and control of the father, subject to supervised access in favour of the
mother.

[18] The motion for temporary care and custody was argued as scheduled on January 25, 2018. The motions judge, in lengthy reasons dated February 2, 2018, ordered the following by way of a temporary custody and care arrangement under the former Child and Family Services Act (CFSA):[5]

a)The children were to be transferred immediately to the temporary care and custody of the father;

b)Mother was prohibited from attending the children's school or elsewhere where the children might be. The school was to be provided with the order, and directed to release the children only to the father or his designate;

c) Police were directed to locate, apprehend, and deliver the children to the father;

d)Mother's access to the children was to be supervised, and at the Society's discretion. The Society is to ensure the mother sees the children regularly (at least weekly or possibly twice a week), but it has discretion as to location and duration of visits, taking into consideration the children's wishes;

[19]   The order was subject to further terms and conditions, which included:

e)Mother providing father with the children's passports, birth certificates, health cards and other ID;

f)   Permitting father to travel with the children outside of Ontario for holidays without mother's consent. Father to maintain the children's residence in the Greater Toronto Area. Father to keep the Society informed of all planned trips.  Father not to plan trips that interfere with programming required by the order without first discussing it with the Society and securing the Society’s approval or a court order;

g)Father to arrange a meeting with the children's pediatrician and other health care professionals to obtain direction regard the management and treatment of the children's skin care and any dietary restrictions;

h) Father to ensure children are not exposed to inappropriate adult conflict;

i)    Father to attend for reasonable services the Society recommends;

j)    Father to sign consents for release of information regarding the children's school, day care, family physician and other collaterals the Society requests;

k) Father to allow Society workers to conduct both announced and unannounced home visits and shall allow Society workers to meet privately with the children as and when requested;

l)    Mother shall participate in counselling as recommended by the Society to improve her coping and communication strategies and shall follow through with any recommendations made by the counsellor;

m)                The counsellor shall be given a copy of the reasons. Counselling should focus on teaching the mother the importance of the children's relationship with the father and the impact of parent conflict on children;

n) Counsellor shall be directed to provide updates to the Society, to the father and to the court regarding the mother's progress in counselling;

o)Mother shall take a parenting course recommended by the Society to learn about child development and positive parenting discipline. She shall follow through with any reasonable recommendations made by the program facilitator(s). The program facilitator is directed to report to the Society, to the father and to the Court about the mother's progress;

p)Neither parent shall engage in arguments or disputes in the presence of the children;

q)The parents shall refrain from speaking negatively about each other to the children or in the presence of the children;

r)  Neither parent shall take audio or video recordings or photographs of the children for the purposes of getting a disclosure from the children and neither parent shall record the other without the express consent or that parent;

s) The issue of whether the parents shall attend counselling together shall be reviewed after feedback from the mother's counsellor is obtained;

t)   Both parents are ordered to work cooperatively with the Society workers(s) and provide updated contact information at least 48 hours prior to any changes occurring.

[20] It is noteworthy that the Society made no request, either in its notice of motion, amended notice of motion or in argument for any order prohibiting the mother from attending the children's school, any order for police assistance, or for any order regarding travel, prohibitions on travel, or joint counselling for the parents.

[21] The motions judge then went on to make an order in the domestic proceeding terminating all orders for child support and special or extraordinary expenses on a temporary basis. No one had moved for this relief.

[22] Lastly, the motions judge declined to rule on the Society's request that the mother undergo an assessment. He required further submissions on that issue.

[23] The mother immediately launched this appeal to the Superior Court of Justice. As a result of the appeal, the temporary care and control order was automatically stayed for a period of 10 days. Stewart J continued the stay until the mother's motion for a further stay was ultimately heard in this court on February 15, 2018. Kiteley J denied the request for a stay in written reasons released February 21, 2018. She set a timetable for perfecting the appeal, resulting in its being argued today.

[24] Since February 21, 2018, therefore, the children have resided with the father, and mother has had supervised access to them, in the Society's discretion. As of the date the appeal was argued before me, the children had been in their father's care for a period of just over 10 weeks.

[25] When she denied the stay, Kiteley J did not have the transcript of the proceedings before the motions judge. She commented on this fact, and specifically ordered that the transcripts of both attendances before the motions judge be placed before the judge hearing the appeal. I therefore had the benefit of the transcripts. I have set out above some of the salient features from those transcripts. I will have more to say about them when I discuss the grounds for appeal and the motion judge's reasons in more detail.

The appeal:

[26] I turn now to mother's appeal, and her grounds for appeal. The parties agree that the standard of review in this case is one of correctness. The mother argues the motions judge denied her procedural fairness. She also argue the motions judge misapprehended the evidence and as a result misapplied the statutory test. Mother's position is that the appeal should be allowed, and the children returned to her temporary care and custody. She asks that the motion for temporary care and custody be remitted back to the Ontario Court of Justice for a re-hearing by a different judge.

[27] The Society takes the position the appeal should be dismissed. It says there was no denial of procedural fairness. It says the decision is correct in terms of the evidence meeting the relevant statutory criteria. The Society argues, however, that if the appeal is allowed it agrees the motion for temporary custody and care should be returned to the Ontario Court of Justice for a re-hearing by a different judge. In these circumstances the Society says the children should remain in their father’s temporary custody, and mother's access should continue to be supervised.

[28] The father filed nothing on the appeal. As a result, I did not invite him to make submissions. It is clear, however, he supports the Society's position.

 

Grounds for appeal and discussion of them:

[29] Mother frames her appeal in four different areas.

[30] First, she asserts she was denied procedural fairness when the motions judge referred to material she says was not properly before him.

[31] Second, she says although the motions judge properly articulated the statutory test for the motion, he did not apply it properly having regard to the evidence before him.

[32] Third, the mother says the motions judge misapprehended the evidence in terms of his approach to both procedural fairness and the statutory test.

[33] Last, the mother says the motions judge had no jurisdiction to make an order terminating child support in the domestic file.

[34] I will deal first with the issue of procedural unfairness. If in fact the mother was denied procedural fairness it seems to me the appropriate result is to send the matter back to the Ontario Court of Justice so a procedurally fair hearing can be conducted by a different judge. Therefore, if I allow the appeal on the basis of procedural unfairness, it would be inappropriate to deal with the other grounds of appeal, since the motion would be remitted for a re-hearing on the same record.

[35] My conclusions on procedural fairness are grounded in the transcripts of the proceedings before the court in the protection proceedings and the motion judge's written reasons for his decision.

Discussion:

[36] When the parties attended on January 25, 2018 to argue the temporary care and custody motion, the motions judge said, in relation to the domestic file: "I read Justice Cohen's endorsement, I did not read the evidence that was in support of the motion before Justice Cohen.'" He went on to repeat, "Did not read the record that was before Justice Cohen..."[6]

[37] During her argument before the motions judge, mother's counsel said the following:
So before we sort of delve in the evidence on this motion, I think it's really important for the court to understand and frankly to [sic] Society to start acknowledging the context that we find ourselves in. These parents have been involved in highly contested and conflictual domestic litigation, really since the children were born. And on January 22nd, 2013, Justice Cohen granted mom sole custody[7]

[38] Mother's counsel then went on to outline the context she wished the court to consider. Both mother's affidavit and father's affidavit and the Society's affidavit contained both references to and excerpts from the domestic file. However, no one suggested at any time that the domestic file in its entirety was either relevant, or properly before the court. In fact, only one off the cuff comment from the motions judge near the end of the Society's reply argument gave any inkling that he intended to review the domestic file, and would use the evidence in it to come to quite different conclusions than those reached by the judges who had managed the domestic file essentially since the birth of the children.


[39] During mother's counsel's argument, the motions judge said: "I'm going to reserve and I'm going to go back and re-read
the record again ... when I have heard everybody's arguments I want to re-read the record in context, but and I didn't fully appreciate what the issue was here till I'm hearing it now.[8]  [emphasis added]

[40] From these comments I infer the motions judge intended to read the entire child protection record in the context of the arguments counsel had presented to him.

[41] That was not the only comment the motions judge made about "the record". As the Society's counsel was nearly finished with her reply submissions, the motions judge said to the Society's counsel:

... but the issue is whether or not enough has been tried before acting on this and that's, that's, that's what you guys are asking me to, to determine and I don't know the answer right now, which is why I'm reserving and I want to read the evidence again in the context of these arguments, because I don't, I don't know.[9] [emphasis added]

[42] A short time later, having heard brief submissions from the father, the motions judge said:

So I'm going to - I don't know what I'm going to do, but I'm going to go back and read everything in view of the arguments that I heard.[10] [emphasis added]

[43] Finally, toward the end of the Society's reply submissions, the motions judge said:

So, so, so I'm going to go through -I can assure everybody right now I'm going to go back through and I'm actually going to go back through the domestic file, because I have some questions about what happened there as well and scrutinize the history through both of these perspectives because it's a valid point.[11]

[44] This was the only time the motions judge said he would review the domestic file. Of course, by this point mother's counsel's submissions were concluded, and she had no further right to make any additional submissions. Importantly, at no time did the motions judge articulate what questions he had about what happened in the domestic proceedings, or give the parties an opportunity to answer those questions.

[45] When I look at the motion judge's comments in their totality, in terms of what he had instructed counsel at the case conference in November, namely that he expected them to outline in their 14C confirmation forms everything that they wished him to read and consider, I can only conclude that no one contemplated or expected that the motions judge would review both the entire domestic file as well as the material that was properly before him on the motion for temporary care and custody in the protection file.

[46] If the motions judge reviewed the entire domestic file and used it to inform his decision then it is important to look at what he considered from that file. Only then can I determine whether the parties were denied an opportunity to make submissions on what he considered.

[47] So, what, if anything, from the domestic file did the motions judge consider in coming to his decision? Answering this question requires a critical look at the motion judge's reasons.

The motion judge's reasons

[48] The motions judge released his decision to the parties, in court, on February 2, 2018. In his reasons, he says, among other things:

The mother ... asks the Court to consider the history of this matter when reviewing the evidence and digesting the parties' arguments. She says that it is important to put the evidence and arguments into a certain context. She asks the Court to be mindful that previously this Court granted her an order for sole custody, ordered the father to enrol in a parenting program, suspended the father's access, ordered the father to have supervised access, ordered the father to remove a video concerning the children from the internet and cautioned the father about "over-holding" the children ... Essentially the mother asks the court to draw inferences against the father in light of the orders that have been made.[12] [emphasis added]

[49] Importantly, at paragraph 17 of his reasons, the motions judge says: "In arriving at this decision,I reviewed the entire Continuing Record in in the child protection proceeding. I also reviewed the Continuing Records filed in the prior domestic proceedings, as well as this Court's prior endorsements in both. I did so to fully consider the mother's context argument, which I am addressing in these reasons." [emphasis added]

[50] As I have said, it was only near the end of the Society's reply submissions that the motions judge suggested he would be reviewing the entire domestic file, and be drawing inferences from it. To the contrary, from the exchanges excerpted above from the transcript of the hearing, a reasonable person could conclude that the motions judge
had not (and would not) read the record that was before other judges. When he stated he would "read everything", or "read the evidence again", or "re-read the record again", a reasonable person would conclude he would read everything in the child protection file, and particularly the motion records that the parties filed in relation to the motion for temporary custody and care. This is particularly so in light of the motions judge's specific direction to the parties to file 14C confirmations that would direct him to the material they specifically wished him to review. No one could, or would expect him to review anything else.

[51] The motion judge's comments near the end of the Society's reply. submissions that he would "go back through" the domestic file did not provide the mother (or the other parties, for that matter) with any opportunity to address any questions the motions judge had about what had happened in that proceeding. Without knowing what questions the motions judge had, no party had any opportunity to answer these questions, or direct the motions judge to the specific evidence that might answer them. This is manifestly unfair, particularly since the motion judge's unknown review appears to have been a significant contributing factor to his somewhat surprising result, namely removing the children from the home where they had been living pursuant to a final custody order, and reversing that order in the context of a motion for temporary relief, where no oral evidence was received.

[52] From the part of the motion judge's reasons set out at paragraph 48, above, referring to what mother asked the court to do, at best she asked the court to draw inferences from the prior orders that were made. No reasonable person would expect the motions judge, of his own initiative, to delve into the material filed in support of prior orders in another court file. Indeed, when the motions judge said earlier he had read Cohen J's endorsement, but not the record that gave rise to it, a reasonable person would conclude that this would be the extent of his review, if any, of the domestic file.

[53] The motions judge went on to say, at paragraph 21 of his reasons:

As set out above, the mother asks the Court to be mindful of the history of this case when considering the evidence and arguments concerning her conduct. Therefore I have reviewed the steps taken in the prior domestic proceedings and in this child protection proceeding in considerable detail...

[54] The motions judge did not, however, indicate exactly what material or "steps" he had reviewed "in considerable detail", what weight he gave it, or what conclusions he drew from what he reviewed. Mother puts it this way in her factum:

The Appellant did ask the Court to be mindful of the parties' history in making its ruling. To account for this, both Respondents filed materials from the prior proceedings on the motion- the Appellant included a number of orders and [the father] included as an exhibit the Appellant's October 18, 2017 affidavit from the domestic proceedings, as well as a number of other exhibits that had been filed in the domestic proceedings. Both parties referred to these materials in argument and this was the context that the court was invited to consider.[13]

[55] Mother's factum goes on at paragraph 40 to say:

However, no party asked [the motions judge] to consider documents that were not in their own materials or any other party's materials on the hearing. No party made reference to documents that were not included in the materials the parties filed specifically for the Temporary Care and Custody hearing. Further, no party had the opportunity to make submissions with respect to documents that were not contained in any party's materials at the Temporary Care and Custody Hearing. The motions judge undertook his review of the file on his own accord. Having done so, the Motions Judge did not ask any party for submissions on those documents to ensure that all the parties were afforded their procedural rights.

[56] The mother goes on in her factum at paragraphs 41 to 43 to note that in his reasons, the motions judge made extensive reference to some of the orders and documents in the domestic file, but not to others. It is impossible to determine whether he read or relied on any other documents or orders in the domestic file. The motions judge makes reference at paragraph 70 of his reasons to "my review of all the evidence filed." At paragraph 131 he refers to the “ other's various court documents she filed over time". At paragraph 135 he comments that "the record before Murray J and Nevins J was not as complete as it is now." Last, the motions judge noted that "the mother has been vitriolic towards the father in her court documents."

[57] I have no idea what the motions judge meant by reviewing "all the evidence filed", or which of mother's "various court documents ... filed over time" he considered, or what specifically he found "vitriolic" in mother's "various" court documents "filed over time". This lack of particularity means it is impossible to determine what particular evidence the motions judge relied on in coming to his decision.

[58] For its part, the Society says all family cases in the Ontario Court of Justice are case managed by a single judge. It argues "A case management judge's previous involvement in the action, and the ability of the judge to have a more thorough understanding of the context of any particular proceeding is a benefit of, and not a detriment to, case management."[14] The Society argues that since the motions judge was the case management judge in both proceedings, and the proceedings were being "heard together", there was nothing untoward or improper in the motions judge reviewing the entire domestic file in coming to his decision regarding temporary care and custody.

[59] I disagree. First, the motions judge had only become assigned to the domestic file on November 16, 2017. He had no prior involvement or prior knowledge of the domestic case at all. The appearance memorandum for the November 16, 2017 attendance shows that the father was not present. It also notes: "CAS proceeding has commenced. Next date is Nov. 21/17. This matter is adjourned until then." Of course, the protection proceeding automatically stayed the domestic proceeding, at least insofar as the children's living arrangements were concerned. I fail to see how this brief memorandum could have the effect of bringing the entire domestic file into "evidence" that the motions judge could rely on.

[60] The motion judge's references to documents in the domestic file are vague and unclear. It is impossible to know which documents from the domestic file informed his decision. It is impossible to know whether he reviewed all the documents, or only some. It is impossible to know what weight, if any, he gave to any particular document, or why. It is impossible to know if he rejected any evidence from the domestic file in coming to his decision. Importantly, no party was given any opportunity to make submissions concerning the contents of the domestic file, other than the material they had actually filed in their affidavits on the motion for temporary care and custody.

[61] As the mother points out in paragraph 47 of her factum, there is no prohibition on relying on evidence filed in prior proceedings in a child protection case. However, as the mother puts it: "procedural fairness dictates that all parties are given notice of the proposed evidence to allow them to make submissions on them and no documents should be considered by a judge in making a decision without having provided litigants with such an opportunity."[15] I agree.

[62] Motions are argued on the written record filed in support of that motion. Parties are expected to put all relevant information they wish the motions judge to rely on in their affidavit material. The function of the 14C confirmation form is to alert the judge as to what material supports the motion and should be read prior to hearing the motion. Here, the parties did just that. Each included some excerpts from the material filed in the domestic file. No one objected to their inclusion, nor did anyone suggest that entire documents should be referred to, rather than excerpts. The parties' arguments were based on the written records filed for the motion.

[63] Where a matter is heard on a written record, it is even more important for that evidentiary record to be clear and properly defined, so that all parties know the evidence upon which the motion will be decided. I am mindful that Kiteley J denied the mother's motion for a stay, even after noting that "[a]t first blush, it did appear that the Motion Judge had looked at the extensive materials in the domestic proceedings and that, by arriving at conclusions that reflect his extensive review of the files in both ... applications without giving the parties an opportunity to respond, the parties were denied procedural fairness."
[16]

[65] Kiteley J went on to comment on her further review of the volumes of material filed on the stay motion, and ultimately concluded not to grant the stay. But, as she carefully pointed out, she did not have the transcripts of the proceedings before the motions judge. I do. Having reviewed them,I can only conclude the motions judge went far outside the parameters of the evidence he should properly have considered in coming to his decision. Having given no indication that he was going to do so, he denied the parties a reasonable opportunity to make submissions to him on both the relevance and admissibility of that material on the motion before him. In doing so, I can only conclude he denied the parties procedural fairness.

[66] Procedural fairness is a cornerstone of child protection proceedings. The state is seeking to intervene in the parent/child relationship. Here, the state sought, on a motion for temporary relief, to remove the children from the custody of their mother, where they had lived their whole lives. It sought to do so on a written record alone, without oral evidence from anyone, or the ability to cross-examine any deponent. When the state seeks a significant remedy like this, the parents must be afforded a fair and reasonable opportunity to know what evidence will be relied on in coming to that decision.

[67] Here, they were denied that opportunity. In Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.),[17] Chapnik J outlined and reviewed the relevant law concerning procedural fairness in child protection cases. In commenting on procedural fairness she said, at paragraph 83:

One of the fundamental tenets of our legal system is the right to due process and an opportunity to fully and fairly present one's case ... the court must at all times act in accordance with the principles of natural justice. This requirement presupposes adequate notice of hearing, an opportunity to submit a full record, including affidavit and documentary material, cross-examination if required, and a full and fair hearing on the merits.

[68] At paragraphs 96 and 97 of her decision, quoting The Children's Aid Society of Ottawa-Carleton v. T.(M.)[18] she says:

The [...] cases highlight the importance of the integrity of [...] child protection applications. [...] As was noted [...] "the need for fairness in any proceedings is of paramount consideration in ensuring that the best interests of the children will be the ultimate result of the decision." In other words [...] notwithstanding the 'best interests' test, the court must at all times act in accordance with the principles of natural justice.

[69 In Newfoundland& Labrador (Director of Child, Youth & Family Services) v. F.(J.)[19] the Court of Appeal commented on judges considering documents. Having been satisfied certain documents were properly admitted before the judge below, the court went on to say at paragraph 25:

Obviously a different conclusion might be reached in respect of any document in the file, not specifically addressed during the hearing, or of which counsel ... had not otherwise been made aware. Concern for procedural fairness would require that any such document not be considered by the UFC judge without first providing counsel with an opportunity to address the matter.

[70] From this I infer a court's decision must be based on documents parties are aware of and which counsel have an opportunity to address. As I see it, the motions judge's relied on evidence that was not before him in the motion material filed. He did not indicate to the parties that he would do so, except in passing during the Society's reply argument. The motions judge failed to advise the parties what precisely he would review. He did not give the parties an opportunity to make submissions on the material he intended to review. In his reasons, he does not articulate what he relied on in coming to his decision. The parties were given no opportunity to make submissions on this material. As a result, the parties were deprived the procedural fairness that is critical to the integrity of child protection proceedings.

[71] On this basis alone the appeal must be allowed, and the motion for temporary care and custody remitted to the Ontario Court of Justice for a rehearing before a different judge.

[72] Mother's second ground of appeal is that although the motions judge property articulated then statutory test on a motion for temporary custody and care, he failed to apply it properly to the evidence. Since I have concluded the motions judge improperly considered some evidence that was not properly before him, and in so doing denied procedural fairness, the appropriate remedy is to remit the matter back to the Ontario Court of Justice before a different judge for a hearing that is procedurally fair to all parties.

[73] Since there will be a re-hearing,I decline to rule on whether the motions judge misapprehended the evidence in coming to his conclusions. He referred to some parts of the domestic file, but not others. The parties (and this court) have no way of knowing what evidence, exactly, he relied on. Without knowing what evidence the motions judge relied on, it is impossible to determine whether he misapprehended the evidence or not. Therefore, a re-hearing on the merits is the appropriate way to proceed.  It is also appropriate for a different judge to preside over the rehearing.

[74] Last, mother argues that the motions judge erred when he terminated the child support order in the domestic file without a motion of any sort before him, and without anyone asking him to do so. The motion judge's reasons simply terminate the child support order, without setting out any basis for doing so.

[75] The mother points out that the Ontario Court of Justice is a statutory court, without inherent jurisdiction. Its decisions must be made pursuant to a specific statutory framework, or not at all.[20] The CFSA has no provision permitting the court to vary or suspend orders for child support made in a different proceeding under a different statute.

[76] The motion judge's endorsement of November 21, 2017 adjourned the temporary care and custody motion to January 25, 2018. It made no reference to the domestic proceedings at all. The only case that was properly before the court on January 25, 2018 was the protection case, and not the domestic file.

[77] Importantly, no party made any request for an order under the Family Law Act regarding child support. It is that statute, and that statute alone, that confers jurisdiction on the Ontario Court of Justice to make child support orders. There was no motion for support before the court. There was no motion before the court to terminate support. In these circumstances the motions judge was both without jurisdiction, and also denied the parties procedural fairness when he gave no notice of his intention to deal with the issue of child support.

[78] While it may have seemed practical and expedient, and perhaps even inevitable for the child support order ultimately to be set aside if the children were in their father's custody instead of their mother's, it was an error in law for the motions judge to do so. His decision was made in the child protection proceedings. There was no motion before him in the domestic proceedings. He was not operating pursuant to the child support provisions of the Family Law Act. I fail to see how the motions judge had any jurisdiction to make the order he did. That aspect of the decision must also be set aside.

The fresh evidence.


[79] The next question is what should happen to the children in the interim, pending the re-hearing of the Society's motion for temporary care and custody. I have fresh evidence from both the Society and the mother on this issue.

[80] The Society has reported on the mother's supervised visits, as has the mother. Clearly, both children miss their mother very much. They consistently express a wish to return to her. The Society has expressed to mother its concerns about visits not ending on time, and how difficult long goodbyes can be for the children.

[81] Mother has begun counselling as recommended by the Society. She has taken and completed an online course with the Triple P Parenting Program. On March 27 mother provided the Society with a certificate of completion from this course, which the Society had recommended to her. The Society is not satisfied with mother's online participation, and wishes her to attend a course in person. The Society has since provided mother with information on how to register for parenting programs provided by Youthdale and Toronto Public Health. Mother has undertaken to do so. That being said, I have no idea why the Society would not have recommended the Youthdale or Toronto Public Health courses to the mother if these were the courses the Society thought would be most appropriate for her.

[82] Although the mother suggests the children's school performance has declined since the children began to live with the father, the fresh evidence does not bear this out. The mother has appended some of the children's work. She says this shows they are regressing in forming letters and numbers. It would not surprise me, given the significant changes in the children's lives since implementing the motion judge's order if they were to exhibit some regression. The school, however, does not confirm this.

[83] Mother has provided the children's most recent report cards dated February 16, 2018. The reports are dated two weeks after the temporary care and custody order changed their residence. There is nothing in the reports to suggest any regression or concern. The children continue to do well in school. They are both described as "curious and capable" and "wonderful" children by their teacher. From the attendance reports filed, it appears that mother's difficulties in getting the children to school on time were abating somewhat in the month or so before the temporary care and custody order. Since the girls have been living with their father, their school attendance has been reasonably good, but they also continue to be late or absent on occasion since they have been living with him as well.

[84] The father filed no fresh evidence of his own, so I have nothing directly from him as to how he feels the girls are doing in his care. At the time of the hearing, father was living in a bachelor apartment. Father had undertaken to the motions judge that he would be moving to a larger apartment if the children were placed in his care.  From the fresh evidence filed, I cannot tell if this has occurred or not.

[85] The only "fresh" evidence about the father comes from the Society's affidavit filed in support of their motion to admit fresh evidence. The Society's affidavit says only that on March 2, 2018 they provided father with a referral for a fathering group. The affidavit goes on to say "He later told me that he had contacted the group co-ordinator, but has not heard back. I encouraged him to call again." The affidavit was sworn April 26, 2018.I have no idea whether the Society or the father have followed up in the nearly two months since the Society made the referral.

[86] The Society's affidavit goes on to say they have communicated regularly with father by telephone, or in person when he comes to the Society for the mother's access visits. The Society worker deposes she visited father's home only once, on March 26, 2018. She does not describe the living arrangements, other than to say the home is "clean, safe and appropriate" for the children. She makes no mention of whether the father has followed through with his undertaking to the court to find a larger apartment, or whether he and the girls are still living in a bachelor apartment.

[87] The Society's affidavit reports father saying he puts lotion on the children, and he does give them foods they are unaccustomed to. Father confirms the children do ask to go home with their mother, but says this only occurs after their supervised access
visits with their mother.

[88] From the supervised access visit notes, it appears the children's eczema continues to a bit of an issue, and mother continues to feel father is not managing putting cream on the children as much as he should. The supervisor's notes confirm the children's lips are frequently chapped and their skin often dry. The children express some concern their father gives them foods which their mother feels they may be sensitive to. Neither of these issues is anything new in the history of this family.  I note that in Cohen J's order of June, 2017 she specifically ordered the father to "ensure that the children's skin care needs (eczema) are attended to while the children are in his care, and that their dietary restrictions are respected." While I recognize this order has been stayed by the protection proceedings, these issues have been live issues for some time. The fresh evidence does not suggest the children's needs in this regard have changed at all.

[89] At best, the fresh evidence simply confirms the children continue to be caught in the middle of parental conflict, notwithstanding the Society's intervention and the change in the children's residential arrangements. The fresh evidence is not particularly helpful in determining where the children should live in the meantime.

[90] On October 18, 2017 Weagant J made a temporary order in the protection proceedings. That order was made on consent and without prejudice. That order provides:

a)Mother shall not use physical discipline with the children;

b)Both parents shall ensure the children are not exposed to inappropriate adult conflict;

c) Mother shall enrol the children in school and ensure they attend regularly and on time;

d)Mother shall sign consents to release of information in relation to the children's school, pediatrician and naturopath as requested by the Society;

e)The parents shall allow the Society worker(s) to conduct announced home visits and shall allow the Society worker(s) to meet privately with the children as and when required;

f)   The parents shall work cooperatively with the Society worker(s) and provide updated contact information at least 48 hours prior to any changes occurring.

g)Father was awarded overnight visits every Tuesday and Friday.

[91] On the first return of the temporary care and custody motion on November 21, 2017, the parents also agreed that the Society would be able to supervise by making both announced and unannounced visits. In order to preserve procedural fairness, it seems to me the children should be returned to the status quo ante, namely back to the provisions of the order of Weagant J, as amended on consent by the motions judge during the proceedings on November 21, 2017. Therefore, pending the expedited re-hearing, and on a without prejudice basis, the children will reside in the joint care of both parents, subject to the terms and conditions of the Weagant order set out above, with the additional provision that the Society may make unannounced visits to each of the parents.

[92] While I recognize this may cause some disruption for the children, the reality is that they have lived primarily with their father for less than 12 weeks. Before that, they had lived their entire lives with their mother and were seeing their father regularly. As I see it, the disruption to them should be minimal. Because the parties had consented to supervision by the Society, without notice, that term will continue. It seems to me the children's interests can be adequately protected in the interim with this kind of an order, particularly if the parties continue with the counselling they have begun at the Society's suggestion.

[93] I recognize that mother has had difficulty in the past getting the children to school on time. From the fresh evidence it appears their attendance had improved in the time since the Weagant order. I note that the children have still been occasionally late or absent since they have resided with the father. I also note that the school year will be ending soon, so school attendance will be less of an issue after the end of June. I would hope the temporary care and custody motion can be re-heard and decided long before the children return to school in September.


Disposition:


[94] For all these reasons, the appeal is allowed on the basis of procedural unfairness regarding temporary care and custody, and for lack of jurisdiction regarding termination of child support. The order of the motions judge dated February 2, 2018 is therefore set aside.

[95] The temporary care and custody motion is remitted back to the Ontario Court of Justice, to be heard by a different judge. The hearing of that motion shall be expedited, and shall be heard as soon as possible in the Ontario Court of Justice, preferably long before the beginning of the 2018 2019 school year. A copy of this decision shall be forwarded to the Administrative Judge at the Ontario Court of Justice, 311 Jarvis St. Toronto, Ontario, M5B 2C4 for the purpose of making the necessary arrangement to expedite the re-hearing.

[96] Pending the determination of the temporary care and custody motion, the children shall reside with the mother pursuant to the terms of Justice Weagant's order, dated October 18, 2017, as varied on consent by the parties on November 21, 2017 to include both announced and unannounced visits by the Society.

[97] For clarity, the motions judge's order terminating the child support order shall also be set aside and a support deduction order shall issue to that effect.

[98] Finally, I wish to thank the parties and their counsel for fully complying with the ambitious timetable Kiteley J imposed for the hearing of this appeal, and for their helpful facta, authorities and arguments before me.

                                                                                                Mesbur J.

Released: 20180516


[1] Reasons of Cohen J dated June 1, 2017

[2] Page 737 of the Appeal Record, Volume 3

[3] Page 673b of the Appeal Record, Volume 3

[4] Page 817 Appeal Record

[5] The CFSA was replaced by the Child, Youth and Family Services Act, 2017 (CYFSA) on April 30, 2018.

[6] Proceedings before the motions judge on January 25, 2018, page 58. The reference to Justice Cohen’s
endorsement is her temporary decision on the motion to change in the domestic file

[7] Proceedings before the motions judge on January 25, 2018, page 84

[8] Ibid, page 94

[9] Ibid, page 138.

[10] Ibid, page 143.

[11] Ibid, page 124.

[12] Paragraph 13 of the motion judge’s Reasons for Decision dated February 2, 2018

[13] Mother’s factum at paragraph 39

[14] Paragraph 43 of Society’s factum

[15] See Children ’s Aid Society of Algoma v. S(P), 2004 ONCJ 382; Newfoundland & Labrador (Director of Child, Youth and Family Services) v. F(J), 12006 NLCA

[16] Catholic Children ’s Aid Society v. L.D. and A.Z. ONSC 1154 at paragraph 21

[17] [1996] O.J. No. 3018 (Gen. Div.)

[18] (8 December 1995) (Ont. Gen. Div.) (unreported).

[19] 2006 NLCA 35 (Court of Appeal).

[20] Boivin v Smith 2010 ONCJ 411 at paragraph 18

© John P. Schuman 2012-2018