Law Times

Page 6 July 24, 2017 • law Times www.lawtimesnews.com COMMENT u EDITORIAL OBITER By Gabrielle Giroday Children first Law Times reports that the Ontario Court of Appeal has ruled that a foster mother can be named a party in a child protection case, if it's in the child's best interests. The story details how lawyers who represent parents in child wel- fare proceedings say the decision in A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell is of concern, because the ultimate implications of such proceedings can result in the permanent abol- ishment of the child-parent relationship. However, others say the ruling will help lawyers who represent fos- ter families and provide clarification as to how and when foster par- ents can be added as parties in these proceedings. "In our view, both r. 7(4) and s. 39(3) of the [Child and Family Ser- vices Act] preserve the court's discretion to add a foster parent as a party to a child protection proceeding. We agree that the power to add such a person as a party should not be exercised lightly," says the ruling, which said the "Divisional Court circumscribed the exercise of that discretion too narrowly. The overarching consideration is the child's best interests." For lawyers involved in child welfare proceedings, the ruling re- affirms the important principle of keeping the child's interests as the central objective in navigating the child protection process. Lawyer Charlotte Murray notes parents in such proceedings often have limited resources and are receiving assistance from legal aid. She adds that letting foster parents be parties will mean that parents will have to defend their case from a foster parent who would likely be in a much better economic position, in addition to being cross-examined by societies. While these are potentially difficult conse- quences for parents mired in legal wrangling to get their children returned, the ruling stacks the deck in favour of children involved. Lawyers would do well to study the decision. LT ©2017 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reli- ance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . . . . .Alex Robinson Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . . . . .Catherine Giles Electronic Production Specialist . . . Derek Welford Dreams of digital justice process still elusive BY IAN HARVEY T he process of justice never sleeps. Oh, it may doze off now and then or get ensnarled in the weight of its own petard, but it surely keeps grinding along. There isn't a single stakeholder in the Ontario justice system, however, who doesn't recognize there are serious issues. Even Attorney General Yasir Naqvi recognizes it. He's been out making the rounds to spread the Ontario Liberal government message of "fairness" in all things as a prelude to the 42 nd general election to be held on or before June 7, 2018, and earlier this month, he told the Oakville Cham- ber of Commerce that more technology holds the greatest promise in achieving efficiency. "We really have not seen a very com- prehensive, unified approach in using technology when it comes to making the [justice] system more efficient," Naqvi was quoted by Inside Halton as saying at the gathering. "In 2017, when I can pick up my phone and open an app to do pretty much ev- erything, it does not make sense that we are running a justice system, which is so important to our day-to-day function- ing, in the old paper format." The story goes on to report that more than 50 per cent of claims are being filed online at Small Claims Court. Civil matters, he continued, are e-filed in five municipalities in Ontario — Newmarket, Ottawa, Sudbury, Brampton and Toronto. Oakville is on tap to launch this fall. "These are civil matters that tend to be more com- plex," Naqvi is quoted as say- ing. "We're creating that op- portunity to be able to file matters online. "We're doing the same thing with family law, moving to online to do child support payments. You don't have to go into a courthouse." Indeed, but none of this is new, and progress has been slow. The mandate letter to Naqvi, on his appointment to the role of attorney gen- eral from Premier Kathleen Wynne last September, tasked him with a lengthy shopping list, including implementing a strategy for digital innovation. The letter was direct: "Continue to expand innovative online service deliv- ery in the justice system and at ministry agencies, boards and commissions in order to provide Ontarians with services that are more accessible, re- sponsive and easy to use. It also said that Naqvi would need to "continue to modernize and streamline court services with a view to deliver efficient digital and front-line court services." Yet, technology alone is not enough. Mindsets must change and there's no short- age of advice being offered. From the various bar as- sociations to the govern- ment's own commissioned reports such as Justice Annemarie Bonkalo's review of the family courts, technology is but one tool with other options such as taking lawyers out of the process among others. The latter has been subject to fero- cious criticism. Still, there are other op- tions such as triaging cases at all courts to ensure the smaller matters can be par- celled off and dealt with more informally — and at less cost. The 2016 changes to the Condomin- ium Act, for example, set the stage for a less formal video tribunal to deal with disputes. Similarly, changes Naqvi him- self tabled to amend the Construction Lien Act would also see a tribunal cre- ated to deal with contractual disputes on an interim basis, at least until the project was completed and again, take matters off the civil court docket. Personal injury matters arising from automobile claims are also heading to a tribunal format — that is, as soon as the court challenge is decided. Further, as hinted in the letter of man- date, there's still an ongoing discussion as to how to handle charges under the Provincial Offences Act despite critics' concerns about watering down the right of fair trial. Meanwhile, the Landlord and Tenant tribunal seems set to be next for a digital makeover, as is the Ontario Municipal Board, which is also due for a restructur- ing. It's no easy job. Ontario's justice process was largely designed in the age of the horse and bug- gy, and remaking it for a digital age will take some time, certainly more than the span of a single attorney general's man- date. LT uIan Harvey has been a journalist for more than 40 years writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. Queen's Park Ian Harvey

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