



WARNING

This is a case under the
Child,
    Youth and Family Services Act, 2017
and subject to subsections 87(8) and 87(9) of this
    legislation.
These subsections and subsection 142(3) of
the
Child, Youth and
    Services Act, 2017
, which
deals with the
    consequences of failure to comply, read as follows:

87
(8)
Prohibition
    re identifying child

 No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
    or foster parent or a member of the childs family.

(9)
Prohibition re identifying person charged
 The court may make an order prohibiting
    the publication of information that has the effect of identifying a person
    charged with an offence under this Part.

142
(3)
Offences re:
    publication

 A person who contravenes subsection 87(8)
    or 134(11) (publication of identifying information) or an order prohibiting
    publication made under clause 87(7)(
c
) or subsection 87(9), and a
    director, officer or employee of a corporation who authorizes, permits or
    concurs in such a contravention by the corporation, is guilty of an offence and
    on conviction is liable to a fine of not more than $10,000 or to imprisonment
    for a term of not more than three years, or to both.




COURT OF APPEAL FOR ONTARIO

CITATION: Catholic Childrens Aid Society of
    Toronto v. S.K.S., 2022 ONCA 228

DATE: 20220321

DOCKET: C69908, C69910 & C69919

Huscroft, Sossin and Favreau
    JJ.A.

BETWEEN

DOCKET:
    C69908

Catholic
    Childrens Aid Society of Toronto

Applicant (Respondent)

and

S.K.S.

Respondent (Respondent)

AND BETWEEN

DOCKET:
    C69910

Catholic Childrens Aid Society of Toronto

Applicant
    (Respondent)

and

S.K.S.

Respondent
    (Appellant)

AND BETWEEN

DOCKET:
    C69919

Catholic Childrens Aid Society of Toronto

Applicant
    (Appellant)

and

S.K.S.

Respondent
    (Respondent)

Jessica Gagne, for the appellant
    (C69910)/ respondent (C69908 & C69919) S.K.S.

Caterina Tempesta and Madeleine Sarick,
    for the appellant (C69908)/ respondent (C69910 & C69919) Office of the
    Childrens Lawyer

Fatima Husain and Marshall Matias, for
    the appellant (C69919)/ respondent (C69908 & C69910) Catholic Childrens
    Aid Society of Toronto

Jocelyn Espejo-Clarke and Alex Kam, for
    the respondent (C69908, C69910 & C69919) Minister of Public Safety and
    Emergency Preparedness

Cheryl Robinson and Aviva Basman, for
    the intervener (C69908, C69910 & C69919) Canadian Association of Refugee
    Lawyers

Vasu Naik, for the intervener (C69908,
    C69910 & C69919) Canadian Civil Liberties Association

Heard: February 3, 2022 by
    video conference

On appeal from the order of Justice
    Michael A. Penny of the Superior Court of Justice, dated September 13, 2021,
    with reasons at 2021 ONSC 5813, dismissing an appeal from the order of Justice
    Melanie Sager, dated April 1, 2021, with reasons at 2021 ONCJ 199.

Sossin J.A.:

OVERVIEW

[1]

This appeal concerns the interaction between a
    provincial legislative scheme governing child protection and a federal
    legislative scheme for removing those without citizenship or immigration status
    from Canada.

[2]

Specifically at issue is an order for disclosure
    by a judge of the Ontario Court of Justice (OCJ) at a status hearing initiated
    by the Catholic Childrens Aid Society of Toronto (CCAS) pursuant to s. 113
    of the
Child, Youth, and Family Services Act, 2017
, S.O. 2017, c. 14,
    Sched. 1 (
CYFSA
).

[3]

The purpose of the status hearing was to
    consider extending a supervision order governing the CCASs involvement in a
    family where child protection concerns had been established. The disclosure was
    sought by the federal Minister of Public Safety and Emergency Preparedness (the
    Minister), pursuant to s. 50(a) of the

Immigration and Refugee
    Protection Act
, S.C. 2001, c.27 (
IRPA
). That section
    provides that an opportunity for the Minister to make submissions in another
    judicial proceeding is a precondition to that proceeding having the effect of
    staying a removal order.

[4]

The motion judge granted the disclosure order, subject
    to certain safeguards to protect the confidentiality of the record and prevent
    the disclosure from being used for any purpose outside the child protection
    proceedings.

[5]

Both the CCAS and Office of the Childrens
    Lawyer (OCL) appealed those orders to the Superior Court. The Canadian Civil
    Liberties Association (CCLA) and Canadian Association of Refugee Lawyers
    (CARL) were permitted to intervene.

[6]

The Superior Court appeal judge dismissed the
    appeal from the motion judges order. Ms. S, the CCAS and OCL, the appellants,
    now appeal to this court.

[7]

For the reasons that follow, I would allow the
    appeal.

BACKGROUND

[8]

In order to better understand the interaction
    between the Ministers role under the
IRPA
and child protection
    proceedings under the
CYFSA
in this case, some background on the
    family is needed.

[9]

I turn first to the immigration and refugee
    context.

[10]

Ms. S. arrived in Canada with her oldest
    daughter and her only son in December 2007. The son was just two years of age
    at the time. Ms. S. lost her immigration status in Canada in May 2008. She subsequently
    gave birth to her youngest daughter, who is a Canadian citizen.

[11]

Ms. S. made a claim for refugee status in May
    2009. That claim was refused in July 2011, and she and her two older children then
    became subject to an enforceable removal order. A subsequent appeal and an
    application to remain in Canada on the basis of humanitarian and compassionate
    grounds were refused. A further application made in June 2019 has not yet been
    determined. Ms. S. and her son remain under a valid removal order at this time.

[12]

The child protection context began with the CCASs
    involvement with Ms. S. and her children in December 2010, following an
    investigation into Ms. S.s alleged physical abuse of her son. The CCAS remains
    involved with the family at the present time.

[13]

In 2013, Ms. S. was charged with assault and
    assault with a weapon against her eldest daughter. Her eldest daughter has
    since become an adult and no longer has a role in these proceedings. The terms
    of Ms. S.s recognizance prohibited any unsupervised contact between Ms. S. and
    her children. The two younger children were removed from her care and the CCAS commenced
    protection proceedings. Ms. S. was ultimately convicted of the charges under
    the
Criminal Code
,
    R.S.C., 1985 c. C-46.

[14]

At this point, the child protection proceedings
    and immigration proceedings intersected.

[15]

The Minister was made aware of the charges and
    Ms. S.s subsequent convictions, and determined that Ms. S. was inadmissible
    to Canada for serious criminality pursuant to s. 36(1)(a) of the
IRPA
. Ms. S. was then issued a
    deportation order with no right to appeal.

[16]

In November 2014, the two younger children were
    returned to Ms. S.s care, subject to an order of supervision by the CCAS on
    specified terms and conditions. A further supervision order was made on
    February 18, 2015, and subsequent orders relating to supervision have been made
    on November 9, 2015, August 17, 2016, June 5, 2017, March 26, 2018, January 9,
    2019, and January 14, 2020. In all, there have been at least eight supervision
    orders and seven status review applications made in this case since 2014. While
    the supervision orders varied, they all included a range of measures intended
    to provide support to the family, including a requirement that Ms. S. refrain
    from using physical discipline and attend counselling, as well as measures to
    implement recommendations arising from the psychological assessments of the
    children.

[17]

At the hearing on March 26, 2018, counsel for
    the Minister advised the court that the Minister was not acting on the removal
    order, and would instead continue to monitor the child protection proceedings.

[18]

The child protection and immigration proceedings
    came together again in September 2019, when the Minister notified Ms. S. that her
    removal date had been set for October 20, 2019. The CCAS brought a motion
    before the Ontario Court of Justice seeking a non-removal order with respect to
    Ms. S.s two children. Ms. S.s youngest daughter was represented by counsel at
    that hearing, which took place on November 27, 2019 before Spence J. The
    Minister was also served with the notice of motion, including all supporting
    evidence, and was present at the hearing as well.

[19]

The Minister had previously sought to be added
    as a party to the child protection proceedings. The CCAS and OCL opposed the
    Minister being granted such status, though they did not oppose the Minister
    having the opportunity to make submissions on the non-removal order being
    sought. On that basis, the Minister withdrew the motion. The motion judge
    issued a temporary non-removal order.

[20]

In reasons dated December 19, 2019, Spence J. found
    that the supervision order dated January 9, 2019 did not operate as an
    automatic stay of a removal order under s. 50(a) of the
IRPA
, as the Minister had not been
    given an opportunity to make submissions:

Catholic
    Childrens Aid Society of Toronto v. S.K.S.
, 2019 ONCJ 899,

at
    para. 89
. However, according to Spence J., the Minister
    was given an unfettered opportunity to make submissions at the hearing before
    him in November 2019.

[21]

Spence J. did not accept the Ministers argument
    that his submissions were made in a vacuum and not meaningful because no disclosure
    was provided beforehand.  Spence J. stated that the Minister had been privy to
    a range of details about the supervision orders by his appearances at status
    hearings since 2017, and that he could have sought to be added as a party or
    sought disclosure as a non-party. He concluded, at para. 159, that the
    Ministers argument was disingenuous. Spence J. found as a fact that the
    Minister had been granted an ample opportunity to make extensive
    submissions and that the Minister had fully embraced this opportunity.

[22]

The Ministers submissions were directed toward
    whether there was a genuine
lis
between the parties. Spence J. found, in the circumstances of this
    case, that a
lis
was
    created when the CCAS first sought a protection order, and continued through
    the various extensions and variations of supervision orders from that time
    forward.

[23]

Spence J. made a new supervision order. He found
    a non-removal order was a necessary incident of the supervision order, as the
    terms of the supervision order could not be fulfilled if the family were deported
    to St. Lucia.

[24]

The CCAS brought a further status review
    application, which was heard on January 14, 2020. The OCJ made another six-month
    supervision order on consent, placing the children with Ms. S. on specified
    terms and conditions. The Minister did not attend that status hearing.

[25]

In June 2020, the CCAS served its status review
    application. In September 2020, the Minister requested a copy of the
    Agreed Statement of Facts in the status review proceeding as well as a copy of
    the parties pleadings. In October 2020, the Minister indicated that he
    intended to bring a motion for disclosure under r. 20(5) of the
Family Law Rules
, O. Reg. 114/99 (
FLR
s
).

[26]

In December 2020, the parties attended the
    status hearing at the root of this appeal in order to settle a new supervision
    order. At that hearing, the Minister reiterated his intention to bring a motion
    for disclosure prior to making submissions on the new supervision order. The
    hearing was adjourned until March 2021 to allow for this motion to be heard and
    decided.

[27]

In March 2021, the motion judge heard the motion
    by the Minister for what was characterized as nominal disclosure.

[28]

In her Order dated April 1, 2021, the motion
    judge granted the Ministers motion and
ordered the
    Society to provide the Minister with:

(a) all
    status review applications and all agreed statements of fact filed with the
    court in this matter since 2015; and

(b) all
    future status review applications and all statements of agreed fact in this
    matter upon which the parties intend to rely in seeking any further orders in
    the future.

[29]

The motion judge also ordered that the Minister
    be permitted to have counsel attend in court and make submissions on the
    supervision order being requested by the parties insofar as it has an impact on
    the Minister's interests.

[30]

The disclosure order was subject to certain
    restrictions, including that the Minister was precluded from using the
    documents for any purpose other than to decide if he intended to make
    submissions to the Court and to assist in preparing those submissions, and that
    the Minister was prohibited from copying or distributing or filing these
    documents in any other proceeding.

[31]

The CCAS and OCL appealed the April 1, 2021
    Order to a judge of the Superior Court (the appeal judge). That appeal was
    heard on July 19, 2021, with a decision released on September 13, 2021. The
    appeal judge found no error by the motion judge which would warrant
    intervention.

[32]

The OCL, the CCAS, and Ms. S. filed their Notices
    of Appeal to this court in October 2021.

LEGISLATIVE CONTEXT

IRPA

[33]

Section 50 of the
IRPA
provides:

50 A removal order is stayed

if a decision that was made in a
    judicial proceeding  at which the Minister shall be given the opportunity to
    make submissions  would be directly contravened by the enforcement of the
    removal order;

[34]

Section 36(1)(a) of the
IRPA
provides:

36 (1) A permanent resident or a
    foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in
    Canada of an offence under an Act of Parliament punishable by a maximum term of
    imprisonment of at least 10 years, or of an offence under an Act of Parliament
    for which a term of imprisonment of more than six months has been imposed;

CYFSA

[35]

The preamble of the
CYFSA
, which
    governs child protection proceedings, states that children are individuals with
    rights to be respected and voices to be heard.

[36]

Section 1(1) of the
CYFSA
, stipulates that 
[t]he paramount purpose of this Act is to promote the best
    interests, protection and well-being of children.

[37]

Section 1(2) sets out additional purposes of the
    Act, so long as they are consistent with the best interests, protection and
    well-being of children. These include recognition that, [w]hile parents may
    need help in caring for their children, that help should give support to the
    autonomy and integrity of the family unit and, wherever possible, be provided
    on the basis of mutual consent: s. 1(2)(1).

[38]

Section 79(1) of the
CYFSA
identifies the statutory parties
    to a proceeding under the Act, who have a right to participate in a hearing,
    and who are entitled to notice of a proceeding under the Act:

Parties

79

(1) The following are parties to a proceeding under this Part:

1.

The applicant.

2.

The society having jurisdiction in the matter.

3.

The childs parent.

4.

In the case of a First Nations, Inuk or Métis
    child, the persons described in paragraphs 1, 2 and 3 and a representative
    chosen by each of the childs bands and First Nations, Inuit or Métis
    communities.



Right to participate

(3) Any person, including a foster
    parent, who has cared for the child continuously during the six months
    immediately before the hearing,

(a) is entitled to the same
    notice of the proceeding as a party;

(b) may be present at the hearing;

(c) may be represented by a
    lawyer; and

(d) may make submissions to the
    court,

but
    shall take no further part in the hearing without leave of the court.

[39]

Section 87(4) of the
CYFSA
sets out that a hearing shall be
    held in the absence of the public, subject to subsection (5), unless the court
    orders that the hearing be held in public after considering both the wishes and
    interests of the parties; and whether the presence of the public would cause
    emotional harm to a child who is a witness at or a participant in the hearing
    or is the subject of the proceeding. Section 87(8) of the
CYFSA
sets out that no person shall
    publish or make public information that has the effect of identifying a child
    who is a witness at or a participant in a hearing or the subject of a
    proceeding, or the child's parent or foster parent or a member of the child's
    family.

Family Law Rules

[40]

Rules 1 and 2 of the
FLR
s set out, in part, the proceedings
    to which the rules apply, the court's power to make certain procedural orders,
    and matters of interpretation.

[41]

Most significantly, r. 2(2) establishes that the
    primary objective of the rules is to enable the court to deal with cases justly.
    Rule 2(4) requires the parties and their counsel to help the court to promote
    the primary objective of the rules.

[42]

Rule 7 of the
FLR
s
also clarifies who is a party to a
    case or a motion, including affected parties to a motion, and r. 7(5) provides
    for who may be added as a party to a case or motion.

[43]

Rule 19(11) provides an avenue to obtain
    documents from a non-party on motion, with notice served on every party, and on
    the non-party by special service.

[44]

Rule 20(3) states that in a child protection
    case, a party is entitled to obtain information from another party about any
    issue in the case by questioning the other party, by affidavit, or by another
    method, in which case the party shall serve the other party with a request for
    information.

[45]

Under r. 20(5), in a child protection case, the
    court may order that a non-party be questioned by a party or disclose
    information to a party, if it would be unfair for the party who wants the
    questioning or disclosure to carry on the case without it, the information is
    not easily available by another method, and the question or disclosure will not
    cause unacceptable delay or undue expense.

[46]

Subrules 20(24-26) of the
FLR
s place limits on the use of any
    information obtained under rr. 13,
19
, or 20. More specifically, r. 20(24) provides that, when a party
    obtains evidence under this rule, r. 13 (financial disclosure) or r. 19 (document
    disclosure), the party and the party's lawyer may use the evidence and any
    information obtained from it only for the purposes of the case in which the
    evidence was obtained, subject to the specific exceptions in r. 20(25), or if
    the court, on motion, gives a party permission, provided the interests of
    justice outweigh any harm that would result to the party who provided the
    evidence.

ANALYSIS

[47]

The OCLs Notice of Appeal of October 13, 2021
    raises 14 specific grounds of appeal. In its factum, the OCL groups these
    issues into four categories:

(1)

The appeal judge erred in affirming the motion
    judges decision that she had jurisdiction to make a disclosure order to the
    Minister, a non-party to the child protection proceeding;

(2)

The appeal judge erred in prioritizing the
    Ministers interest in disclosure over the interests of the children, contrary
    to the
CYFSA
, the
Charter
, the
Convention on the Rights
    of the Child
, and binding appellate authority;

(3)

The appeal judge erred in interpreting s. 50(a)
    of the
IRPA
as conferring on the Minister a right to make submissions
    on the child protection
lis
; and

(4)

The appeal judge erred in failing to find that
    the motion judge violated r. 17(24) of the
Family Law Rules
or
    that her comments on the interpretation of s. 50(a) of the
IRPA
gave
    rise to a reasonable apprehension of bias.

[48]

These categories cover the issues on appeal
    raised by the other appellants, Ms. S. and the CCAS, as well.

[49]

I will review each of these categories in turn.

The Standard of Review

[50]

The appellate standard of review on appeal was
    set out in
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235. Under
Housen
, the standard of review on a question of law is correctness. The
    standard of review on a question of fact is palpable and overriding error. For
    questions of mixed fact and law, the standard of review is also palpable and
    overriding error unless there is an extricable question of law, in which case
    the standard of review on that extricable question is correctness.

[51]

Jurisdiction is a question of law. For the
    allegation of bias and a breach of the duty of fairness, the standard of review
    is also correctness.

(1)

The motion judge had jurisdiction to make the
    disclosure order

[52]

The first ground of appeal is that the motion
    judge had no jurisdiction to order the disclosure of confidential documents
    from the child protection proceeding to the Minister, and the appeal judge
    erred in upholding the motion judges finding of jurisdiction.

[53]

According to the CCAS, the jurisdiction of the
    motion judge to order a party to provide disclosure to a non-party must flow
    from a connection to the paramount purpose of the
CYFSA
. The CCAS
    argues that the Minister's purpose in seeking disclosure is not to further the
    best interests of the children, but to further the removal of Ms. S. and her
    son.

[54]

The OCL echoes this argument, but also raises
    the limits of the OCJ as a statutory court lacking inherent jurisdiction. The
    OCL submits that neither the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43,

nor
    the
CYFSA
provides authority for the disclosure of confidential child
    protection documents to a non-party.

[55]

The motion judge accepted that the
CYFSA
did not expressly envision disclosure to the Minister, but reiterated that it did
    not prohibit disclosure either. Accordingly, she relied on the broad authority
    conferred by the
FLR
s as affording the necessary discretion to make
    the disclosure order in this case, in addition to the necessity that a
    statutory court, such as the OCJ, be able to control its own process. The
    motion judge stated, at para. 116:

The case before me demonstrates the importance
    of statutory courts being empowered to control its process as it involves
    managing the interests of the parties, promoting the best interests of the
    children and controlling the involvement of a third party with a legitimate
    interest who represents the Canadian government and answers to the public.

[56]

The appeal judge reviewed the motion judges reasons
    on the question of jurisdiction, and concluded, at para. 68:

I can find no error in the motion judge's
    conclusion that, as a matter of law, she had jurisdiction to order production
    of relevant documentation to a third party in appropriate circumstances. The
    scope of the disclosure order, and its terms and conditions, fall within the
    exercise of discretion available to the motion judge in a case conference,
    particularly where she would be hearing the motion. Her order discloses no
    error of principle and the appellants have not convinced me that, in making
    this order, she was clearly wrong.

[57]

The appeal judge also specifically upheld the
    motion judges inclusion of future supervision applications in her disclosure
    order, observing that the application of the order to future applications was
    subject to future reconsideration as well.

[58]

In my view, the appeal judge committed no error
    in this analysis. Absent a provision of the
CYFSA
precluding a judge
    of the OCJ from making such a disclosure order, the broad discretion afforded
    to the judge under the
FLR
s confers jurisdiction on the OCJ to make disclosure
    orders including, where warranted, to the Minister exercising his mandate under
    s. 50(a) of the
IRPA
.

[59]

The appellants point to no provision of the
CYFSA
that constitutes an express bar to disclosure. However, they argue that s. 87(8)
    of the
CYFSA
implicitly bars disclosure of the kind sought by the
    Minister. This provision states, No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
    or foster parent or a member of the childs family.

[60]

While this provision speaks to the constraints that
    must accompany disclosure orders in a child protection proceeding, it does not
    remove a judges jurisdiction to make such an order.

[61]

The jurisdiction of the OCJ to make a disclosure
    order to a non-party in this context is also supported by the OCJs case law.
    In
Childrens Lawyer v. N.N.D.
, [2014] O.J. No. 6396 (Ont. C.J.), for
    example, a limited disclosure order was made to the Minister responsible for a
    removal order in a proceeding under the
FLR
s.

[62]

I would therefore dismiss this ground of appeal.

(2)

The motion judge did not prioritize the
    interests of the Minister over the interests of the family subject to the child
    protection proceedings

[63]

The second ground of appeal is that, even in the
    face of jurisdiction to make a disclosure order, the appeal judge erred in
    upholding the motion judges exercise of that jurisdiction. Specifically, the appellants
    submit that there were errors below in prioritizing the interests of the
    Minister over the heightened privacy interests of the children subject to the
    supervision proceeding, contrary to the
CYFSA
, the
Charter
,
    international conventions and governing case law.

[64]

I disagree that the motion judge improperly
    prioritized the interests of the Minister over the interests of the children.

[65]

In my view, the task before the court in this
    case is to interpret the import of s. 50(a) of the
IRPA
harmoniously
    with the best interests of the child(ren) and the privacy constraints of the
CYFSA
.

[66]

I do not agree with the appellants that the
    disclosure of any information to the Minister, in any child protection case,
    under any circumstances constitutes a breach of the protections inherent in the
CYFSA
.

[67]

It is important to note that the effect of
    engaging the stay of removal provided for by s. 50(a) is potentially in the
    childrens best interests. In this way, giving effect to the condition of the
    stay that requires the Minister to have the opportunity to make submissions
    should not be viewed as inherently at odds with the
CYFSA
. I agree
    with the motion judge when she said, at para. 58, that granting the Minister
    the opportunity to make informed and meaningful submissions ensures the protection
    of its order and therefore the best interests of the children governed by that
    order.

[68]

Further, I do not agree that restricted disclosure
    to the Minister is tantamount to making that information public. The
CYFSA
explicitly provides that the presence of two media representatives at a hearing
    is still, a hearing that is held in the absence of public: at s. 87(5).
    Similarly, the disclosure of certain information to a government agent subject
    to explicit privacy protections does not implicitly offend the prohibition on
    publishing or making public information that has the effect of identifying a
    child in s. 87(8).

[69]

At the same time, as I will discuss in the next
    section, in my view a nuanced analysis is required to ensure that any
    disclosure order for the purpose of meaningful submissions by the Minister
    pursuant to s. 50(a) of the
IRPA
in the child protection context would
    be as minimally invasive of the childrens privacy interests as possible.

(3)

Proper approach for interpreting the
    intersection of s. 50(a) of the
IRPA
and the
CYFSA

[70]

The third ground of appeal is that the motion
    judge erred in interpreting s. 50(a) of the
IRPA
as permitting
    the Minister to make submissions on the child protection
lis
, and the
    appeal judge erred in upholding that interpretation.

[71]

I will discuss this ground of appeal in two
    parts: first, the significance of the genuine
lis
test in the context
    of s. 50(a); and second, the appropriate scope of the Ministers submissions.


(i)

Genuine
lis

[72]

With respect to s. 50(a) and the decision of the
    motion judge, the appeal judge held, at para. 57:

I am unable to find any error of law in the
    motion judges interpretation of s. 50(a) of the
IRPA
or her
    assessment of the Minister's ability to address matters falling within the
    scope of the Minister's legitimate interest. The appellants attack on the
    motion judge's concern that the Minister be permitted to make meaningful
    submissions is particularly troubling. What do the appellants want  that the
    Minister be limited to making un-meaningful submissions? It seems that perhaps
    this is so.

[73]

Section 50(a) of the
IRPA
provides,

50 A
    removal order is stayed

(a) if a decision that was made
    in a judicial proceeding  at which the Minister shall be given the opportunity
    to make submissions  would be directly contravened by the enforcement of the
    removal order[.]

[74]

This provision has been interpreted and applied
    in the family law setting in a way that makes clear it is to function in
    concert with family law legislation to the extent possible.

[75]

The Federal Court has exclusive jurisdiction to
    determine whether a removal order directly contravenes a decision made in a
    judicial proceeding:
M.W. v. E.B.
(2003), 38 R.F.L. (5th) 443 (ON SC).
    To do so, the court considers the factors outlined in
Alexander v. Canada
    (Solicitor General)
, 2005 FC 1147, [2006] 2 F.C.R. 681, affd
    2006 FCA 386, 360 N.R. 167; see also
Perez v. Canada (Minister of
    Citizenship and Immigration)
, 2005 FC 1317, at para. 16.

[76]

This court considered the interaction between a
    family law
lis
and s. 50(a) in

J.H. v. F.A.
, 2009 ONCA
    17, 265 O.A.C. 200. There, the appellant admitted that she applied for a
    custody order and a non-removal order to trigger s. 50(a): at para. 14.
    Weiler J.A. concluded that the motion judge should not have granted the
    non-removal order in this case because there was no genuine family law dispute
    between the parents. As such, the order was inappropriately aimed at the
    Minister, not the parents: at para. 24.

[77]

This case law establishes that there are
    circumstances where a genuine
lis
is relevant and that the Minister
    may be entitled to make submissions on the issue. However, a distinction must
    be drawn between private family law disputes and child protection cases, where
    several of the parties are state actors and the proceedings are carefully
    supervised by the courts. I would make the point that, given those circumstances,
    concerns over a genuine
lis
will rarely arise. However, there may be
    circumstances where information available to the Minister through the
    immigration file or the length or nature of the child protection proceedings raises
    legitimate concerns about a genuine
lis
.

[78]

This brings me to the ultimate issue in this
    case, the appropriate scope of the Ministers submissions and what, if any
    disclosure of the child protection file is appropriate to allow for those submissions.


(ii)

Appropriate scope of disclosure and of
    Ministers submissions

[79]

With these principles in mind, I agree with the
    appeal judge that the motion judge did not err in concluding that s. 50(a)
    provides for a
meaningful
opportunity to make
    submissions. This opportunity, however, is not without limits. There needs to
    be a framework within which such meaningful submissions are made, and within
    which any associated disclosure requests are managed.

[80]

In this case, the motion judge took a responsive
    approach. She accepted the Ministers definition of the scope of submissions,
    and the disclosure needed to permit those submissions (referred to as nominal
    disclosure and including the agreed statement of facts). She held, at para. 59:

Before any final order is made in a child
    protection proceeding in this court which may impact an existing deportation
    order, I find that the Minister ought to be permitted to make submissions to
    this court on
all relevant issues
, including
    whether there is a genuine
lis
between the parties that justifies the
    order being requested by the parties. [Emphasis added.]

[81]

The appeal judge, in affirming the motion
    judges decision, invoked an analogy to the framework for determining fairness
    obligations from
Baker v. Canada (Minister of Citizenship and Immigration)
,
    [1999] 2 S.C.R. 817. That framework sets out five factors to be considered on
    judicial review for determining the appropriate degree of fairness for a
    particular decision-making setting. With four of these factors in mind (
(i) the nature of the decision being made and the process followed
    in making it;

(ii) the nature
    of the statutory, institutional and social context;

(iii) the importance of the decision to the parties and interests
    affected; and

(iv) legitimate
    expectations),
the appeal judge upheld the motion
    judges determination that [t]he court would fail in its duty of fairness and
    responsibility to the administration of justice if the Minister was limited in
    the manner requested by the parties: at para. 55.

[82]

I agree that s. 50(a) of the
IRPA
gives
    rise to a discretion to be exercised by the motion judge, both in relation to
    the scope of submissions and in relation to the extent of disclosure.

[83]

Spence J. referred to the Minister being granted
    an unfettered opportunity to make submissions in the status hearing dealing
    with the application for a supervision order in November 2019. At the status
    hearing giving rise to this appeal, the motion judge rejected an argument that
    the Ministers submissions should be limited, in effect, to advising the motion
    judge of the existence of a removal order. She did not address what, if any,
    limits would be appropriate or necessary on the Ministers submissions.

[84]

The appeal judge held that the motion judges exercise
    of her discretion demonstrated no error. He concluded, at para. 61:

The motion judge
    was correct in her interpretation of s. 50(a) of the
IRPA
, to the
    extent that she found the nature of the Minister's legitimate interest is the
    basis for determining the content of the required "opportunity to make
    submissions". Determining the specific order or orders necessary to give
    rise to effective or "meaningful" submissions, however, involved the
    exercise of discretion. Subject to the next argument, addressed below, the
    motion judge committed no error of principle, and was not clearly wrong, in
    making the specific orders in this case that she did.

[85]

I do not accept the argument advanced by the
    CCAS and OCL that the Ministers submission must be limited to facts about the
    removal proceedings. Nor do I accept, however, that the Ministers opportunity
    to make submissions is to be unfettered. Rather, I agree with the appellants
    that the Ministers submissions must be limited to his area of legitimate
    concern, in light of his duties under the
IRPA
.

[86]

In my view, a blended analysis of this dual
    legislative context (
CYFSA
and
IRPA
) is necessary to
    determine both the scope of submissions and associated disclosure in the child
    protection setting.

[87]

Moreover, I do not think this case can be resolved
    according to administrative laws procedural fairness analysis. The
Baker

framework appropriately highlights the need to tailor the decision on
    disclosure. However, it does little to address the competing concerns of other
    parties who may be affected by a decision regarding disclosure, such as the
    privacy considerations at issue in this child protection proceeding. For this
    reason, I come to a different conclusion as to the appropriate framework to
    employ when determining disclosure in this statutory context.

[88]

In my view, before a judge in a child protection
    proceeding can decide on the scope of a Ministers submissions or any
    accompanying question of disclosure, the Minister must provide a basis for the
    proposed scope of submissions. That basis must be derived from the record
    before the Minister, or from the Ministers field of knowledge and expertise. For
    example, if the Minister wishes to challenge the
bona fides
of the
lis
of a child protection proceeding, as in this case, the Minister must
    demonstrate a legitimate,
prima facie
concern based on material within
    the removal record or the Ministers field of knowledge. That concern may
    relate to material in the removal record that casts doubt on the
lis

of a child protection proceeding, or it may relate to the number and kind
    of supervision orders that have been granted. For example, in its factum, at
    para. 60, the Minister states that The
CYFSA
is not meant to and
    cannot provide
de facto
immigration status. It may be appropriate,
    after multiple orders under the
CYFSA
purporting to affect a familys
    immigration status, for the Minister to raise such a concern. It will be for
    the motion judge to assess whether such a
prima facie
concern has been
    established, and to demarcate the scope of a Ministers submissions based on
    that concern.

[89]

If, as in this case, disclosure is requested for
    the Ministers submission to be meaningful, the Minister must provide further
    justification for the specific, proposed disclosure. That justification must logically
    connect the proposed disclosure to the scope of submissions. For example, if
    the Minister seeks access to the agreed statement of facts, the Minister must
    first identify the kind of facts that need to be known to make meaningful submissions.
    In oral submissions, counsel for the Minister characterized the request for
    disclosure in this case as a mechanism to connect the dots so that the
    Ministers submissions could be meaningful. While it is open to the Minister to
    frame his request for disclosure in this way, it is for the Minister to set out
    the specific dots that need to be connected. For example, if the Minister seeks
    disclosure to address whether in this case the
CYFSA
is being used to
    provide
de facto
immigration status for the family, the Minister
    should be expected to summarize how the disclosure sought will enable such
    submissions to be meaningful.

[90]

Once the Ministers position is set out, the
    judge can then consider the requested scope of submission/disclosure, together
    with the Ministers statutory obligation to pursue removal as soon as possible on
    the one hand, and the parties duties under the
CYFSA
and the childs
    best interests on the other hand. This analysis will also inform the kind of
    restrictions that ought to be placed on disclosure, in terms of redacting
    documents, if necessary, protecting confidentiality to the extent possible, and
    restricting the use of the disclosure outside the specific purpose of making
    submissions.

[91]

Disclosure orders would be granted only where,
    and to the extent that the Ministers clearly defined need for disclosure is
    warranted, having regard to the competing interests and concerns of the
    affected parties. Ultimately, the decision requires the exercise of discretion;
    as long as the Minister first satisfies the motion judge that there is a
prima
    facie

basis for disclosure,absent an error in law or in principle,
    the motion judge's decision is entitled to deference.

[92]

In this case, the motion judge did not require
    the Minister to establish a
prima facie
basis for the scope of
    submissions he wished to make, and did not assess whether the disclosure sought
    by the Minister was justified in light of material in the removal record, or within
    the field of knowledge of the Minister. As a result, I conclude that the motion
    judges decision on disclosure cannot be upheld.

[93]

I expressly refrain from commenting on whether,
    on the appeal record in this case, the Minister would have met the threshold
    for the scope of submissions proposed, or for the disclosure requested, as
    these threshold questions were not put to the Minister and therefore not
    addressed in the way contemplated above.

[94]

As a result, I would allow the appeal, set aside
    the disclosure order and remit the matter to the motion judge if the Minister
    wishes to pursue same and attempt to meet the
prima facie
case for the
    specific disclosure requested.

(4)

The motion judges comments did not give rise to
    a reasonable apprehension of bias

[95]

As a fourth ground of appeal, the OCL alleges
    that the motion judge failed to abide by r. 17(24) of the
FLR
s governing
    settlement conferences, that her comments on the potential settlement of the
    dispute gave rise to a reasonable apprehension of bias and that the appeal
    judge erred in failing to make this finding.

[96]

This issue received very little attention in the
    oral hearing on this appeal.

[97]

However, in its factum, the OCL states that, at
    the December 22, 2020 attendance, the motion judge presided over a conference
    in which the Minister and the parties participated, and during which settlement
    discussions took place. It asserts that the fact that settlement discussions
    occurred was specifically stated by the Minister in their motions to preclude
    the OCLs use of the conference transcript on appeal.

[98]

The motion judges Endorsement of December 22,
    2020 indicates that the Court expressed a concern that a refusal to give the
    Minister any disclosure would make it impossible for their counsel to make
    meaningful submissions pursuant to s. 50(a) of the
IRPA
and that, if
    the Minister was denied the opportunity to make meaningful submissions, the
    Minister could argue before the Federal Court that an order of the Family Court
    should not stay removal.

[99]

I am persuaded that the exchange that took place
    between the motion judge and the parties was not a settlement conference under
    the
FLRs
. Further, the comments of the motion judge cannot reasonably
    be interpreted as a predetermination of the ultimate issue before her on the
    motion for disclosure giving rise to a reasonable apprehension of bias.

[100]

The appeal judge did not err in finding that these comments did not
    reflect a predetermination, but rather reflected an attempt to focus counsel's
    minds on what the motion judge perceived as the central issue in dispute. It was
    nothing more.

DISPOSITION

[101]

I would allow the appeal and remit the matter to the motion judge if
    the Minister chooses to pursue his request for disclosure in accordance with
    this decision.

[102]

No costs are sought on this appeal and I would award none.

Released: March 21, 2022 G.H.

L. Sossin J.A.

I
    agree. Grant Huscroft J.A.

I
    agree.
L. Favreau J.A.



