Durham CAS v. V.C.


DURHAM CHILDREN'S AID SOCIETY v. V.C. AND J.C.


Ontario Superior Court of Justice


Salmers J.


Heard:

Judgment: September 14, 2004

Docket: FC-03-217-00




Counsel:

P. DeBuono for Applicants

J. Wilson, J. Schuman for Respondents, Parents

S. Gleave, R. Arbour for Durham District School Board

W.J. Manuel for Her Majesty the Queen in Right of Ontario (Ministries of Education and Children and Youth Services)

V. Hazlett-Parker, M. Pawagi for Children



Salmers J.:


Introduction


1     This case is about the availability, provision, and appropriateness of educational and other services for 2 young autistic brothers. The boys are 7 and 9 years old. Their parents are advocating strenuously for what they believe are the necessary services for their sons. The parents' claims for these services are against the local school board, the Durham District School Board (DDSB), and the provincial Ministers of Education and Children and Youth Services (the Ministers.) On the motions argued before me, the real issue is whether the parents' claims can be combined or heard together with a status review application brought by the applicant DCAS under the CFSA.


History of the Proceeding


2     On July 22, 2003, DCAS commenced a protection application in which it was alleged that these children were in need of protection from their parents. In that application, DCAS alleged that the need for protection arose, at least in part, because of the parents' resistance to and/or lack of cooperation with the boys' individual education plans (IEP's) as set by DDSB. In that protection application, the parents eventually consented to a finding that the children were in need of protection.


3     The current proceeding is a status review of that finding. DCAS continues to maintain that the children are in need of protection from their parents at least partially because of the parents' resistance to and/or lack of cooperation with the boys' IEP's. During argument before me, DCAS did not allege any other reason why the boys were in need of protection from their parents.


4     In their Answer to the status review application, the parents alleged that their sons were in need of protection from the DDSB and the Ministers. In addition, the parents have claimed several different types of relief against DDSB and the Ministers. All relief claimed by the parents deals with educational and other services for their sons.


5     All other parties object to the parents making these claims within or combined with the status review application. The motions of DDSB and the Ministers both seek: 1) declarations that they are not proper parties to the status review application; and 2) dismissal of the parents' claims against them. The parents' motion requests that their claims be combined with the child protection proceeding and continue under the Family Law Rules.


Analysis


6     The motions of DDSB and the Ministers cannot succeed because of the following factors:


(a) judges of the Unified Family Court are justices of the Superior Court of Justice; and,


(b) the focus of the status review application and all relief claimed by the parents is the availability, provision, and appropriateness of educational and other services for the 2 boys.


7     Unlike some areas of Ontario, in the Central East judicial region, child protection proceedings are heard by a Unified Family Court. In that court, judges of the Superior Court of Justice preside. These judges have jurisdiction to hear not only child protection proceedings, but, also, all of the parents' claims.


8     (In a judicial region where there is no Unified Family Court, the Ontario Court of Justice would hear only the child protection proceedings. All other proceedings and claims would have to be heard by the Superior Court of Justice.)


9     With a Unified Family Court, there is no jurisdictional impediment to the possibility that the same judge might hear all proceedings and claims alleged and argued by DCAS, the parents, DDSB, and the Ministers.


10     When the focus of all proceedings and claims are the same, it is desirable to have all proceedings and claims heard by the same judge. Not only does this minimize legal costs and use of judicial system resources, but, it also avoids conflicting or contradictory decisions and findings of fact. This is especially important when the focus, issues, and facts deal with and impact directly on children and, even more so, when the children have special needs like the boys in this case.


11     An additional advantage of hearing the parents' claims with the status review application and under the Family Law Rules is the strict time limits provided under those rules. These boys need to have their needs addressed quickly. That will occur if the parents' claims are combined with or heard together with (and by the same judge as) the status review application as opposed to the parents bringing their claims in multiple separate proceedings.


12     A further advantage of hearing all claims together is the reduction of stress on the parents. Dealing with their children has caused stress to the parents' relationship. It has also cost a great deal of money. The children's best interests are best served by having parents with a good relationship and with the resources to provide as much as possible for their children's needs. Multiple separate proceedings do not serve the best interests of these children.


13     For these reasons, the motions of the DDSB and the Ministers commencing respectively at pages 2010, 1960, and 2127 C.R. are dismissed. As requested by the parents in the motion commencing at page 2084 C.R., the parents' claims are to be combined with or heard together with the status review application under the Family Law Rules. The best interests of these children require that the services, educational and otherwise, required by these children, be determined as soon as possible. The school year is already ongoing. If the motions and applications for services are not heard quickly, the boys may not receive the proper services. That could cause harm to these boys, especially at their ages. Accordingly, the balance of relief requested by the parents in their motions commencing at pages 2028 and 2084 C.R. is adjourned to September 16, 2004 at 9:30 a.m.


14     By way of obiter, my decision would have been different if DCAS was not alleging in the status review application that the children were in need of protection because of the parents' resistance to and/or non-cooperation with the IEP's. Also, my decision would have been different if the child protection proceedings were in the Ontario Court of Justice.


15     If the parties cannot agree on costs, written submissions on costs (no more than 3 pages per party) shall be made as follows:


a) for the parents, by September 30, 2004;

b) for DDSB, the Ministers, DCAS, and OCL, by October 7, 2004; and,

c) parents' reply, if any, by October 14, 2004.


16     Order to go accordingly.


© John P. Schuman 2014