WARNING
THIS IS AN APPEAL UNDER THE
CHILD AND FAMILY SERVICES ACT
AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:
- (7) The court may make an order,
(a) excluding a particular media representative from all or part of a hearing;
(b) excluding all media representatives from all or a part of a hearing; or
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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.
(8) 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.
(9) 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.
COURT OF APPEAL FOR ONTARIO
Hoy A.C.J.O., Weiler and Pardu JJ.A.
BETWEEN
Children’s Aid Society of Toronto
Applicant (Respondent in Appeal)
and
E.O.
Respondent (Appellant in Appeal)
E.O., appearing in person
Erin Rose, for the applicant (respondent in appeal)
Heard: October 5, 2015
ENDORSEMENT
Overview
1The proposed appellant is the biological mother of a child who is the subject of child protection proceedings. On April 29, 2014, McLeod J. of the Ontario Court of Justice ordered that the child be made a Crown ward, for the purpose of adoption, without parental access. The child’s father appealed that decision to the Superior Court of Justice and, on March 31, 2015, his appeal was dismissed. He appealed further to this court. The mother, who did not participate in the earlier proceedings, now also wishes to appeal the March 31, 2015 decision (the “Appealed Decision”) to this court and brought a motion for an order granting her an extension of time to file a Notice of Appeal.
2The mother’s motion was heard on October 5, 2015, the scheduled hearing date for the father’s appeal of the Appealed Decision. The mother and the Children’s Aid Society of Toronto (the “CAS”) filed affidavits at the hearing of the motion. We dismissed the mother’s motion, with reasons to follow, and proceeded to hear the father’s appeal.
3The following are our reasons for dismissing the mother’s motion for an extension of time.
4We first provide some background, for context. Some details, which are undisputed, are taken from prior judicial decisions relating to the child. We then consider the test applicable on a motion to extend time to file a Notice of Appeal and explain why it is not met in this case.
Background
5The child who is the subject of this appeal – a daughter born November 19, 2011 – is now almost four years old. The mother has not had contact with the child since April 11, 2012.
6At the time of the child’s birth, the mother was incarcerated for fraudulently impersonating a nurse. The father fronted the employment agency that hired her out to work as an unqualified nurse. The father cared for the child until she was just under five months of age when he too was incarcerated for his role in the fraud. While it appeared to the CAS that the father was able to care appropriately for the child, the CAS was concerned that the mother posed a risk to the child as a result of her history of unstable mental health, a pattern of failure to attend to the medical needs of her children, her lack of cooperation with the CAS and the fact that she was serving a substantial custodial sentence. As a result, the Supervision Order placing the child with the father included conditions relating to the mother, including one restricting her access to the child.
7After the father was incarcerated, there was no one to care for the child. A finding that the child was in need of protection was made on an uncontested basis on June 13, 2012. She has been in the continuous care and custody of the CAS since then and has resided with her foster mother – and proposed adoptive parent – throughout that time.
8On February 12, 2013, the CAS filed an Amended Status Review Application and sought an order of Crown wardship with no access for the child.
9On January 28, 2014, the mother, represented by counsel, made an oral motion requesting an extension of time to serve and file an Answer and Plan of Care in relation to the Crown wardship proceedings. Justice Spence of the Ontario Court of Justice dismissed her request, giving oral reasons on the same day. On February 11, 2014, the mother served the CAS with a Notice of Appeal of Spence J.’s order.
10When released from custody, the father began exercising access to the child. He opposed the CAS’ application for Crown wardship and sought to regain custody of the child. The matter proceeded to trial by way of a status review hearing, held over five days in April 2014. On April 29, 2014, the trial judge made the child a Crown ward, for the purpose of adoption, without parental access. The mother did not attend or participate at the trial.
11On March 3, 2015, the CAS brought a motion in the Superior Court of Justice to dismiss the mother’s appeal of Spence J.’s order denying an extension of time to file an Answer and Plan of Care for delay. Duty counsel assisted the mother and made submissions that included facts not in evidence before the court. In his endorsement granting the CAS’ motion, Perkins J. noted that the mother had failed to comply with a court order to perfect her appeal by November 9, 2014. He also noted that an appeal by the father to the Superior Court of Justice was pending. He wrote that, even if the facts not in evidence were true, it was highly unlikely that they would result in an order overturning the order under appeal, given the time that had elapsed. Further, the mother had not explained her delay.
12The father’s appeal of the trial judge’s decision, making the child a Crown ward, was heard at the Superior Court of Justice on March 5, 2015. The father argued that the trial judge had made palpable and overriding errors in determining the facts on which he relied in ordering a Crown wardship and no parental access. The mother did not participate in the appeal. On March 31, 2015, the appeal judge released the Appealed Decision, dismissing the father’s appeal.
13The father then appealed to this court. Since hearing the mother’s motion, we have released reasons dismissing the father’s further appeal.
14The father remains subject to a probation order that prohibits contact with the mother. The father violated that order by continuing an intimate relationship with the mother. That relationship resulted in the birth of another child (“P”) on January 10, 2015.
15Following P’s birth, the mother voluntarily placed P into the CAS’ care and there is an ongoing proceeding in respect of her custody. The mother has exercised supervised access to P twice per week for two hours since January 2015. On September 18, 2015, the CAS issued an Amended Protection Application seeking that P be made a Crown ward without access for the purpose of adoption.
The Applicable Test on a Motion to Extend Time
16The following factors are relevant on a motion to extend time to file a Notice of Appeal: (1) whether the appellant formed an intention to appeal within the relevant period; (2) the length of and explanation for the delay; (3) any prejudice to the respondent; (4) the merits of the appeal; and (5) whether the “justice of the case” requires it: Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.).
17We deal with these factors in turn.
18The mother’s evidence is that she was aware that the father was appealing the Appealed Decision and did not consider filing her own appeal until she attended a free legal advice session at a legal aid clinic on September 23, 2015, where she was advised to file a motion for an extension of time to file a Notice of Appeal. She followed this advice and filed her motion for an extension of time on September 28, 2015. The approximate six-month delay between the date of the Appealed Decision and the time at which the mother sought to file her Notice of Appeal appears to have arisen because she had no intention to appeal during that time. She therefore did not form such an intention within the relevant period, namely within 30 days of the Appealed Decision.
19In her affidavit, the mother now offers an explanation for her delay in appealing the order of Spence J.1 However, what we must consider on this motion is the reason for her delay in appealing the Appealed Decision. As we discuss above, the explanation for this latter period of delay is that the mother did not consider appealing the Appealed Decision until after she attended a legal advice session at a legal aid clinic. The fact that she did not turn her mind to an appeal is not a sufficient explanation to warrant granting an extension of time.
20The prejudice that must be considered in this case is the prejudice to the child. We reject the argument – advanced by counsel for the father, on behalf of the mother – that because the child is living with the proposed adoptive mother, there is no prejudice to the child. If an extension had been granted, the father’s appeal of the Appealed Decision would have had to be adjourned. The foster mother wishes to adopt the child as soon as possible. Permanency, at this juncture, is in the child’s best interests.
21Most importantly, the mother’s appeal of the Appealed Decision is without merit. She did not participate in the appeal or the trial below. She is therefore not in a position to appeal the Appealed Decision. Even if she were, in our view, she would have no chance of success. The mother has not seen the child in nearly three and one half years. Moreover, her affidavit discloses that she is on bail from an immigration hold; she received an unfavourable parenting capacity assessment in June 2015 (which she contests); and she is on the waiting list for a special treatment program for individuals with severe and persistent mental illness. Accordingly, it would not be in the child’s best interests to remove her from her foster mother’s care and place her in the mother’s custody.
22Having regard to all of the foregoing, the justice of the case does not require an extension of time.
23The motion is accordingly dismissed.
“Alexandra Hoy A.C.J.O.”
“K.M. Weiler J.A.”
“G. Pardu J.A.”
Footnotes
- She says her counsel was ineffective and abandoned her case; she was denied legal aid when that counsel provided an unfavourable opinion in October 2014; she was incarcerated when the CAS sent her documents in October 2014; while she was incarcerated and later, while she was on immigration hold, she did not have access to those documents; and, when she was released from immigration hold on January 15, 2015 on bail, she was recovering from a caesarean section surgery and was unable to pick up her property – including the court documents – until February 2015.
