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Family - Parens Patriae. Woods v. Timko
In Woods v. Timko (Div Court, 2024) the Divisional Court considered an appeal [under CJA19(1)(a.1) - "a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario"] of a "final restraining order granted against the appellant father ... on a motion for temporary relief".
Here, the court considers it's 'parens patriae' jurisdiction:[49] Last, the mother argues that the motion judge had authority to make a final restraining order under the court’s parens patriae jurisdiction.
[50] The parens patriae jurisdiction is not unfettered. As stated in A.C.B. v. R.B., 2010 ONCA 714, at para. 23, parens patriae is the power of the court to act in the stead of a parent for the protection of a child.
[51] In S.D.G. v. A.S., 2015 ONSC 752, McGee J. summarized the law in this area:[51] The situations in which parens patriae has been exercised are not always consistent, but it is well settled that the jurisdiction is one of last resort, that it is to be used with caution, and only in accordance with its underlying principle: to do what is necessary for the protection of the person for whose benefit it is exercised and not for that of others.
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[54] As the Court of Appeal indicated at para. 30 in A.C.B., supra, assessing whether parens patriae should be exercised is a “very fact specific exercise.” The modern view is that this exercise typically fits within one of the following traditional scenarios:a. Where there is an unintentional legislative gap: see e.g. A.A. v. B.B., supra, at para. 27. This gap can be direct or indirect: see e.g. M.D. v. L.L., 2008 CanLII 9374 (ON SC), [2008] O.J. No. 907 (S.C.);
b. Where the child is in danger: see e.g. A.A. v. B.B., at para. 27; R. v. J.N., [2008] O.J. No. 3638 (S.C.);
c. In a judicial review of the exercise of statutory power by an administrative authority: see e.g. Beson v. Newfoundland (Director of Child Welfare), 1982 CanLII 32 (SCC), [1982] 2 S.C.R. 716; or
d. Where it is necessary to achieve the paramount objective of the applicable legislation: see e.g. A.A. v. B.B., at para. 40. [55] In summary, the power of parens patriae authorizes a court through its inherent jurisdiction to intervene and rescue a child at risk. It can sometimes be used to bridge a legislative gap so that the underlying purposes of the legislation are met. It does not confer supplemental jurisdiction to rewrite legislation or procedure. [52] Certainly, the best interests of the children were front and centre in this motion. The facts on this motion were horrific and required orders that would protect the mother and children, and that would limit the movements of the father pending trial or further order of this court.
[53] With respect, despite the egregious situation, the motion judge should not have made a final order on his own initiative.
[54] If the motion judge was intending to exercise his parens patriae jurisdiction in this case, then he should have considered giving the parties an opportunity to make submissions.
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