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Practical Steps to Move CYFSA Cases Forward

The very keen may have noted that one of the first decisions under the new Child, Youth and Family Services Act, technically a pair of decisions rendered together by Justice Sherr, made immediate use of the changes in language and intention of the law to require written specifics from the relevant Society.

The exceptionally keen may have seen the update on one of those two files, in which Justice Sherr doubled down on his intentions and expectations and summarized them:

[2]      The court set out that as early as practicable in a case a Children’s Aid Society should be doing the following:
a)      It should be providing timely and ongoing file disclosure to counsel for the parties and counsel for the children so that they can meaningfully participate, if they choose to do so, in a discussion about what services for the children and their family will best meet the purposes of subsection 1 (2) of the Act.
b)      It should be assessing the strengths of the children and their family in order to determine what services can be provided to them that will build on those strengths.
c)      It should be giving the children, where appropriate, and their family the opportunity to have input into what services should be provided to them, in a manner that best meet the purposes set out in subsection 1 (2) of the Act.
d)      It should be providing a clear list of expectations for the children’s family about what they need to do to have the children returned to them. This can be set out in a letter.
Children’s Aid Society of Toronto v. K.D., 2018 ONCJ 404 (CanLII), <http://canlii.ca/t/hsjr8>

These cases form a model for one method of how to use the CYFSA to move cases forward. These options–seeking disclosure, strength-based assessments, giving input into services, and expecting clear, reasonably fixed lists of expectations–are not new. Savvy child-protection counsel have been using them, or attempting to use them, under the CFSA for many years.

However, where counsel faces more recalcitrant Society personnel from time to time, the growing body of caselaw of this type under the CYFSA provides a strong basis to seek orders like those made by Justice Sherr.

It is key in so many cases for there to be productive, even if not positive, communication between Society and parent. This is true from the perspective of parent’s counsel but also as children’s counsel; there is no benefit to any part of the family from an inability for the Society to hear parental concerns, or an inability for the parent to hear Society concerns. These often flow both ways. Frustrated, frightened, and defensive parents do not put on their best showing, leading to suspicious, sometimes patronizing, often defensive caseworkers. The cycle is difficult to break, and counsel can play a major role in helping each see the other’s perspective.

Where communication is quite poor, requests for written lists of expectations may be a good first step; the lawyer can, in private, walk the client through such a list and help brainstorm, without the pressure of a Society presence in the room.

Where there has already been some movement–or, sometimes, when movement has fully stalled and nothing else seems to be working–the best bet is often a meeting. These have various names in various jurisdictions and even between individuals at a Society: legal planning meetings, Family Group meetings, etc. The important aspect is simply getting the necessary players in a room, and giving the family space to feel they are being heard.

A good facilitator makes the difference between a productive meeting that puts the family on a path to reunification, and a meeting that simply deepens the divisions and distrust between family and Society. If a good facilitator does not seem to be present, counsel may want to take on that role. This is particularly true for children’s counsel, but it can be done effectively by parent’s counsel; even from a partisan perspective, restating and reframing the statements of persons in the meeting to make sure people are actually being heard is a way of advocating for your client. You ensure that your client’s perspective is actually being considered, and you make sure your client has the opportunity to fully understand the Society’s (and others’) points.

Where you are unsuccessful in getting meetings scheduled or lists of expectations provided, use the court: seek settlement conferences or even case conferences. Ask for case management. Point out your requests for meetings or written expectations to the court, and seek orders like those in the Sherr judgments above.

Regardless of your method, if you’re trying to keep your client’s case moving forward, the CYFSA gives you new avenues to do so, to complement the old standards.

Deemed Custody Orders—S. 57.1 of the Child and Family Services Act

Since an amendment to the Child and Family Services Act in 2006, the court has been able to make custody orders as part of child protection proceedings in many cases.

Section 57.1 allows, among a few other useful items, a court presiding over a child-protection matter to make a custody/access order, if it is in the children’s best interests.

The central benefit of this is finality. Until s. 57.1 came into force, parties in CFSA proceedings had only two options for finality: Crown Wardship or withdrawal/termination of Society involvement. These are the two extremes of the range of options under the CFSA, and are not appropriate in many cases. Even where termination/withdrawal could be appropriate, it cannot be used where the situation would suddenly return to an unsafe situation because of an existing custody/access order.

Most obviously, consider a situation in which a child is apprehended from a parent with legal custody under a Children’s Law Reform Act order. If that parent cannot safely care for the child going forward, but the other parent can, Crown Wardship is certainly not appropriate. However, neither can the Society withdraw or terminate because the existing CLRA order would then take over, placing the child back at risk.

In the past, such cases have been stayed to allow the parents to reopen their domestic file and seek variation of the custody/access orders. While this functions adequately, it places a substantial burden on both the parents and the court. S. 57.1 allows that variation to take place under the CFSA heading, with the resulting order deemed to have been made under the CLRA (hence the common phrase “deemed custody order” to describe orders made under s. 57.1).

Parents with a Divorce Act custody or access order already in place at the commencement of the child protection matter are not eligible for a 57.1 order. This can be a frustration, especially for parents who are in child-protection court for multiple years. In order to get a final order, they have to return to Superior Court and get a variation—otherwise, they could be trapped in Status Review after Status Review, with no prospect of finality unless the matter is suitable for Crown Wardship or withdrawal/termination.

Additionally, orders for custody/access made by a Superior Court, even if under the CLRA (eg, by a unified court) cannot be varied under s. 57.1 by an Ontario Court of Justice.

Recap:
Section 57.1 orders are available, where appropriate, to litigants who have either no custody/access orders or who have custody/access orders made under the CLRA, as long as those orders were not made by a Superior Court and being varied by an Ontario Court.

In many cases, pushing for a s. 57.1 order can help ensure finality and limit the length of CFSA proceedings. Rather than arguing summary judgments for supervision orders—leading to the need for a further summary judgment for a s. 57.1 order on Status Review, and potentially a further year in court, there is a prospect of finality at the Protection Application level. It is not the correct call in every case, but is an important tool for many.

Not many judgments cite My Cousin Vinny

Those judgments that do cite My Cousin Vinny probably rarely do so to such good effect.

This unusual judgment from Wales is delivered in the form of a letter to the young person whose custody and residence are at issue in the judgment, a fourteen-year-old boy identified as Sam.

Briefly, Dad wanted to move with Sam to Scandinavia; Sam said he wanted to go and to have citizenship there, but alternately said he wanted week-on/week-off. Mom and the Cafcass advocate for the child felt that he should stay primarily with Mom, in England, with meaningful access to Dad (in person, or, if Dad moved to Scandinavia, mostly by Skype and telephone).

The decision letter was read out in court to the parties and the young person as well as being published, and it strikes me as very fitting for the form of case at issue: one in which the weight to be given to the child’s views and preferences was a major issue, and one in which the child was a party represented by counsel.

There’s a great deal in the letter which is also of interest. The form the child’s evidence took, in particular: the court asked each parent to provide, via counsel, five questions to be asked of the child; the court then asked those five questions. This allowed appropriate evidence to come forward while ensuring that this vulnerable young person was not subject to cross-examination by his parents or their representatives.

The court’s letter explains the decision to the child directly. This is relatively rare, and when done, nearly always done outside of the judgment itself. To use the letter as the reasons is an interesting technique. From a child-focused perspective, I quite like it; with an eye to appeal prospects, I would be curious to see how it held up. The reasoning is certainly just as clear in the letter as in most judgments (and clearer than in many), so it might work just fine.

Much of the decision is fact-specific, but still useful as an example. The child’s clear desire to follow Dad on his proposed “adventure” was weighed against the practical, already functioning plan put forward by Mom, and the refusal by Dad to so much as check up on housing, schooling, or job prospects for the planned move to Scandinavia.

I particularly like the judge’s focus on explaining to the child that one aspect of the decision was that Mom was not only settled but happy, and that Dad was neither; and that the judge felt that the child’s following along with Dad’s wants was because Dad needed that support from the child. In particular: “My view is that you brought the proceedings mainly as a way of showing your dad how much you love him. It was mainly to meet his needs, and not yours” (at para. 5).

And, a familiar description to all of us with much courtroom experience: “I have seen the self-centred way that he behaves, even in the courtroom, and how he makes sure everybody knows how little respect he has for anybody who disagrees with him. Even as a judge, I found it hard work stopping him from insulting the other witnesses. Your mother certainly finds his behaviour difficult, so difficult that she avoids contact with him whenever possible” (at para. 5).

In many cases, that description of a parent to a child–however accurate–might not be appropriate. Highlighting the parent’s weaknesses to the child is rarely the role of those involved in custody/access cases. However, in this case, where the child would have access to the decision regardless, the court found a relatively gentle way to express it, and tempered it.

The tempering was particularly achieved in the last section, and the citation of My Cousin Vinny: “Lastly, I wanted to tell you that your dad and I enjoyed finding out that we both love the film My Cousin Vinny, even if it might be for different reasons. He mentioned it as an example of a miscarriage of justice, while I remember it for the best courtroom scenes in any film, and the fact that justice was done in the end.” It was thoughtful to draw a connection between them for the child, even if he was making a fairly sharp point as well.

Analyzing Financial Statements

Analyzing financial statements is more of an art than a science. It’s one of the most common chances lawyers have to pretend to be accountants, which some of us love and some detest. (I’m closer to group one.)

First and foremost, the overall financial picture has to add up. This is advice I give clients almost daily: the income/expenses and assets/debts ratios should match. More income than expenses should result in assets and little or no consumer debt. More expenses than income usually goes with few or mortgaged assets and plenty of consumer debt.

In other words: a litigant claiming income of $10,000 and expenses of $30,000, but who has $5.00 in the bank and no debts, isn’t believable. I’ve seen many people look at financial statements of that kind and shrug: sure, they’re broke. Well — yes, but there’s a bigger story hiding there. Either they’re confused about their expenses, there’s unreported income (parental contributions? Cash work?), or they’ve neglected to list some meaningful debts.

Alternately, a litigant claiming income of $200,000, expenses of $100,000, and no meaningful assets? Either they’ve got a very skewed idea of their own spending, or you should start seriously poking around for undisclosed investments and accounts.

Of course, there’s always the possibility that the income/expenses situation is new, and the assets/debts reflect an older situation. But if something raises flags, it’s well worth following up on them!

Another variation on these mismatches is when the litigant attempts to make the overall numbers work, in a way that makes the statement obviously false. I’ve seen this most often as: reported income of $40,000 (or $30,000, or $50,000); mortgage on massive, expensive house of $3,000 per month (or $2,500, or $3,500); then groceries $20 per month, cell phone $10 per month, few or no other expenses listed. Often, this represents the attempt of a person with a high unreported income to make their income/expense numbers “work.” Since the mortgage is a documented number, they can’t lie about it easily; instead, they lie about other, more fungible expenses, and hope no one notices. Have fun examining their bank statements — it shouldn’t be hard to show that $20 on groceries isn’t so accurate.

Individual expenses can also be revealing in this way. If under the expenses section, $1000 per month is going to pay debts, but no debts are listed, that’s a flag.

Comparing past financial statements, when you’ve been provided with a few, can be a delicious exercise. Many people slip up between one and the next, if they weren’t telling the truth in the first place. It’s hard to keep lies straight, particularly over the course of a two- or three-year proceeding.

For cases of failure to pay support (or costs), the Family Responsibility Office (FRO) has examination of financial statements down to a science. Watch FRO counsel at court, and you quickly see their technique: find every non-obligatory expense they list, and point out that those monies could go to support. Vacations? Not while you’re in arrears, buddy. Alcohol and cigarettes? Not so much. Gifts? Start hand-making them.

Legally, they’re quite right, particularly when it comes to child support, and there’s something remarkably compelling about pointing out that the children are being fed and housed without any (or enough) help from the payor while the payor is reporting spending twice the support amount on booze, restaurant meals, and clothes.

Finally — for this post, at least, as there’s much more to be said on the subject — don’t neglect the tax returns. There’s so much in there — not just the reported income but the source, for instance: “How and why did this person get a T4 for $1?” and “The sole proprietorship grossed $600,000 but only netted $15,000?”

Better yet are the schedules. Here’s a particular favourite from a past version of the tax return forms. I was acting for FRO at the first appearance of a default hearing. The payor, who had experienced counsel, reported years of income of only $1,200 per year, but was not on social assistance. “How does he survive?” I asked counsel.

“You know, I think he couch-surfs. He’s basically homeless,” he told me, empathy in his voice.

“Ah, that would make sense,” I said. “Except that he’s applied for the housing credit, and he’s told CRA he pays $1,100 a month in rent. Here’s his landlord’s name and number.”

“I … need a minute with my client,” counsel said, and we shortly reached agreement about voluntary payments.

Financial statements are a treasure trove. Spend time with them, and they often reward it with new avenues for proving your client’s case. Spend more time drafting, and you can help prevent your client’s case from being easily disproven.

Molly Leonard

Words Mean Things

In the interpretation of legislation and contracts, words and sentences with a plain meaning are supposed to be read in that plain way. As we all know, this isn’t always as easy as it sounds; I’ve just found this remarkably detailed breakdown of some of the problems with the “plain meaning” rule, for instance.

But there are legitimate arguments based on interpretation, and then there’s denying that the same word in the same context in two places means the same thing. Which is what we have in this charmingly short appeal decision from the Ontario Court of Appeal.

The background facts are set out in the Superior Court reasons better than I could summarize:

[1] On April 28, 2008, Jane Harper retained John C. Cox as her family law lawyer in respect of all matrimonial and financial issues between her and her former husband, Paul Brian Harper. Mr. Cox acted for Ms. Harper in this capacity for almost six years. During which time he sent her 37 accounts, which she paid. On March 20, 2014, Mr. Cox was removed as counsel of record. Mr. Cox then sent a final account to Ms. Harper.

[2] Mr. Cox’s accounts over this period were for a total sum of $445,734.98. The matrimonial dispute had not yet gone to trial.

[3] Ms. Harper proceeded, within 30 days of receiving Mr. Cox’s final account, to obtain an Order for Assessment under s. 3(b) of the Solicitor’s Act, R.S.O. 1990 c. S.15 for 38 accounts (the 37 initial accounts and the final account) provided to her by Mr. Cox. That assessment has not yet take place.

The lawyer seeks, alongside some less interesting items, to have the first 37 bills excluded from the assessment. The client is successful in defeating that argument; the court finds that all of the bills can be examined, as the client brought her request for assessment within 30 days of receiving the final bill.

Ah, but! the lawyer argues–all the previous ones were also final bills, and she didn’t do anything within 30 days except pay them.

Except, as both decisions note, the bills themselves and their cover letters all said “interim,” except for the last one. The Superior Court describes the materials thus:

[51] I turn next the letters sent to Ms. Harper with the accounts and to the accounts themselves. In each of the cover letters that were sent by Mr. Cox, he began by saying, ”Enclosed please find my interim account for services rendered…” and then filled in the relevant time period. The accounts that he attached all had a heading “Interim”. Below Mr. Cox’s signature at the end of each letter is the following passage:

This interim account does not necessarily represent the value of services rendered to date but only a payment towards the final account.

Despite these references to interim vs. final in his own bills and cover letters, the lawyer argues at both levels of court that interim doesn’t MEAN interim, really.

It pretty much does, both courts tell him.

And once again the simple legal rule that words have meaning wins the day.

Molly Leonard

Interjurisdictional Service Issues

The big, shiny new issue in family law procedure is here: interjurisdictional service.

Canada, all the way back in 1988, signed onto the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Yet, if you’re a family practitioner who hasn’t heard of it, you’re far from alone. “The Hague convention,” in our parlance, means the one relating to international child abduction; most of the other conventions Canada has signed onto just don’t have the same impact as that one.

That is, until now. Now, you’ve better have heard of the convention on service, because according to the Divisional Court, it governs us, and not just our civil-law colleagues.

The convention has been cited by Ontario family judges for a number of years, but rarely. Recently, though, a three-judge panel of the Divisional Court heard the appeal of Wang v. Lin, and you know it’s going to be an interesting one because the decision names five lawyers for the two parties.

The subject of the appeal was whether service had complied with the convention — and, of course, whether such compliance was mandated. At the Superior Court level, Justice Kiteley had ruled that the Family Law Rules intentionally depart from the Rules of Civil Procedure, which adopt the convention requirements, and that therefore convention-approved service was not necessary in family cases.

The Divisional Court, for better or worse, did not agree. They wrote:

[7] In brief, it is well established that in interpreting legislation, there is a presumption that the legislature intends to conform to international law and to live up to its international obligations. That presumption may be rebutted, but to do so, the language of the legislation at issue must be clear and unequivocal.

As the Family Law Rules do not actively thumb their nose at Canada’s international obligations, service that did not comply with the convention was not effective.

Ah, you ask, but what’s the big deal? Or, the more pro-active of you: how do I ensure I comply going forward?

The good news is that this is a very answerable question; the bad news is you will have to engage in, at the very least, a minute’s google search to tailor that answer to your specific case. Any service can be effected through the Central Authority–and I feel for Ontario’s, which is currently made up of one lawyer and one clerk, and is perhaps about to be inundated. However, if the other jurisdiction does not object, you can also serve in a method that complies with Ontario service requirements.

I’ll even make it very, very easy for you: the chart of signatories is here. The column on the far right contains indicators of whether the member state in question has added stipulations to its membership. Click on the letter(s) in that column, and look for the word “oppose.” See, for instance, the People’s Republic of China, which was the country in question in Wang v. Lin–click through, and you’ll see, among other declarations, this one:

3. to oppose the service of documents in the territory of the People’s Republic of China by the methods provided by Article 10 of the Convention.

So, those are the basics. If you’re serving outside Canada, get hip to the new requirements, and make sure you warn your client that, like everything else procedural, there may be a long delay associated with compliance.

Molly Leonard

Security for Costs, and Waiting Too Long

I recently attended on a somewhat unusual motion. The case, a complex family matter with four parties, is between trial sittings. Three weeks of trial have already been heard, and two more are scheduled in the near future.

In this break between weeks of trial, my client was served with a motion for security for costs.

In Ontario, security for costs in family cases is governed by Rule 24(13) of the Family Law Rules. It sets out four basic factors which might lead to such an order. One of them, the simplest, is that the party resides outside Ontario, and this is the case for my party.

More important by far, however, is the requirement that the court make an order which is “just.”

In my matter — three weeks into a five-week trial — it is hard to fathom how any order for security for costs could be “just,” except on the most overwhelming evidence that my client is a scoundrel. (My client is not, for the record, a scoundrel. At least one of the other parties may well be; that is for the court to decide.)

If there were evidence of outrageous and insupportable behaviour, justifying a mid-trial order for security for costs, one might presume that the trial judge would have it. Having heard three painful, if necessary, weeks of evidence in this matter, the trial judge is ideally placed to find that a party is likely to lose the case and abscond with costs unpaid.

Interestingly, this motion was not brought before the trial judge. Even after I pointed out that it ought to be, it was brought to a regular Brampton motions list, and there it was heard and dismissed.

The chief case on mid-trial motions for security for costs in Ontario is Stefureak v. Chambers, 2005 ONSC 7890 (CanLII). In that matter — one of many battles between parties whose names crop up in many a caselaw search–the father commenced trial with two planned witnesses and, before mother’s evidence had even closed, was up to a planned seventeen. Mother sought security for costs on the grounds that fifteen new witnesses were obviously an attempt to drive up costs and ensure a Pyrrhic victory.

Notably, mother sought that order from the trial judge, who was in the best position to know the body of evidence.

The judge found, quite reasonably, that the concept of a mid-trial motion for security for costs created a high bar indeed, and that mother’s evidence did not clear it. Seventeen witnesses could well be absurd and a waste of time; they could also be necessary. Until their evidence began, the court could not assume the worst.

Overall lesson: think ahead. Bring your motion for security for costs early, and put your best foot forward in the materials. It’s not an easy motion to win at the best of times, but in the meritorious cases, it can be done.

Other notes from that motion:

If an earlier version of your motion was struck for lack of a particular document, make sure that document is contained in your new version
If you plan to bring the same motion twice, pay the costs in a timely fashion, not two years late and five days before the second go-round
If your argument is based on the difficulties of enforcing judgments in a particular locale, make sure you know whether there’s a reciprocal agreement for that jurisdiction or not

Molly Leonard

There’s Never Enough Time

Family law litigants are often surprised by the typical progress of their court case. It may take three months from filing before they see a judge, and that first date is for talking about possible resolution, not for presenting all of the evidence. Then, there is a two or three-month wait–less in some courts, longer in others–for the next chance to talk about resolution with the judge.

What litigants rarely see is the enormous strain that the family court system is bearing. Huge numbers of family cases are filed in Ontario each year, to be dealt with by a relatively small pool of judges. Some cases take up inordinate amounts of judicial time and energy, further slowing down the system.

Many cases deserve that time and focus. When abuse and neglect, harmful treatment, and contemptuous conduct are on the table, the court has to react accordingly.

Others seem to take up all the time available, to much less obvious purpose. One of these is Jewish Family and Child Service of Toronto v. J.Z., 2014 ONCJ 119. Justice Spence, deciding on a complex motion, reviews in great detail the strain faced by the family courts of Ontario and particularly the family courts of Toronto. He works through the numbers as to how much the priority given to this case might be interfering with the rights of other litigants, and finds the following:

[83] To put all of this into perspective, in 2013 this court spent 20 days on the present trial, or about one-ninth of the court’s entire allotment of sitting days. For 2014, a further 43 days have been allocated. Those 43 days represent approximately one-quarter of the entire allotment of sitting days for 2014. This means that the other approximately 567 cases will have to make do with the remaining 75% of the court’s available in-court time. To put this in the starkest of terms, this case, which represents 0.0018% of the court’s caseload, is consuming 25% of the court’s resources.

Justice Spence’s decisions are always remarkable reads, but this has remained one of my favourites since its release in 2014. The family litigant may never need a judicial decision — most cases in our province settle without ever going to trial. However, many family litigants require the implied or actual pressure of the court in order to reach reasonable settlements. They require the man or woman in the robe and sash to explain to the other party that actually, the suggestion on the table is perfectly reasonable, and the court might do the same thing at much greater expense if the matter is forced to trial.

Cases which unnecessarily take up valuable judicial resources get in the way of the small but vital amount of time courts can give to other cases. It frustrates litigants, lawyers, and judges alike. Decisions like the one above are a useful tool in pushing back against unreasonable expectations of some litigants that they are entitled to all of a court’s time.

Molly Leonard