Simcoe Court File Numbers 27/01 and 279/01

DATE: 2001·VIII·14

SUPERIOR COURT OF JUSTICE

THE DIVISIONAL COURT

BETWEEN:

CHILDREN’S AID SOCIETY OF HALDIMAND-NORFOLK,

Applicant,

— AND —

H.V. and K.V.,

Respondents.

Before Justice Warren K. Winkler

Endorsement inscribed on 14 August 2001

APPEAL — Permission to appeal — General — Appeal of ruling on evidence — Appeal of any ruling on evidence made during trial must await appeal to higher court at trial’s end — When trial judge had ordered that local children’s aid society return two children into care of their original foster parents, subject to supervision by children’s aid society in neighbouring county, local society made motion to stay trial judgement pending appeal — Foster parents who opposed motion had filed affidavit that exposed society’s mid-trial offer to settle that would have allowed children to return to foster parents if they agreed to give up any right they might have to launch future law suit in civil damages against society — When foster parents rejected this offer, society carried on with is application for Crown wardship, calling into question its good faith in so carrying on — Motions judge refused to strike out those portions of foster parents’ affidavit and dismissed society’s motion to stay but without taking into account contents of society’s offer — Local society now filed further appeal, not of its stay motion but of motions judge’s refusal to strike out portions of foster parents’ affidavit material — Divisional Court rejected further appeal — Evidentiary ruling could not be subject of isolated appeal in absence of appeal on ultimate decision on motion to stay.

APPEAL — Permission to appeal — Grounds — Conflicting decisions on issue — Moving party failed to satisfy subrule 62.02(4) [grounds on which leave may be granted] of Rules of Civil Procedure — When trial judge had ordered that local children’s aid society return two children into care of their original foster parents, subject to supervision by children’s aid society in neighbouring county, local society made motion to stay trial judgement pending appeal — Foster parents who opposed motion had filed affidavit that exposed society’s mid-trial offer to settle that would have allowed children to return to foster parents if they agreed to give up any right they might have to launch future law suit in civil damages against society — When foster parents rejected this offer, society carried on with is application for Crown wardship, calling into question its good faith in so carrying on — Motions judge refused to strike out those portions of foster parents’ affidavit and dismissed society’s motion to stay but without taking into account contents of society’s offer — Local society now filed further appeal, but failed to convince Divisional Court that there were conflicting decisions of other judges or courts on confidentiality of offers to settle — Moreover, Divisional Court had no reason to doubt correctness of order by motions judge — Divisional Court rejected local society’s appeal.

STATUTES AND REGULATIONS CITED

Family Law Rules, O. Reg. 114/99 [as amended], subrule 18(8).

Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [as amended], subrule 62.02(4).

CASES CITED

B. (Dorian), B. (Rachel) and B. (Malaika) v. Children’s Aid Society of Durham Region and Van den Boomen (1994), 1 L.W.R. 112, [1994] O.J. No. 643, 1994 CarswellOnt 4442 (Ont. Gen. Div.).

Khan v. Pfeugel (1984), 44 C.P.C. 154, [1984] O.J. No. 413, 1984 CarswellOnt 402 (Ont. H.C.).

Ian R. Mang .................................................................................. counsel for the appellant society

Jeffery H. Wilson ............................................................ counsel for the respondent foster parents

For previous proceedings, see:

order for children’s return to first set of foster parents: Children’s Aid Society of Haldimand-Norfolk v. H.V. et al., 2001 32812, 104 A.C.W.S. (3d) 1073, [2001] O.J. No. 1714, 2001 CarswellOnt 1470 (Ont. C.J.), per Justice Gethin B. Edward;

dismissal of children’s aid society’s motion to stay trial judgement pending appeal: Children’s Aid Society of Haldimand-Norfolk v. H.V. and K.V., 2001 32829, 108 A.C.W.S. (3d) 657, [2001] O.J. No. 4055, 2001 CarswellOnt 3619 (Ont. Fam. Ct.), per Justice Patricia H. Wallace; and

supplementary reasons for costs: Children’s Aid Society of Haldimand-Norfolk v. H.V. et al., 2001 32830, 105 A.C.W.S. (3d) 1074, [2001] O.J. No. 2221, 2001 CarswellOnt 2038 (Ont. C.J.), per Justice Gethin B. Edward.

[1] JUSTICE W.K. WINKLER (endorsement):— The moving party seeks leave to appeal from a decision of Justice Patricia H. Wallace refusing to strike portions of an affidavit to be used on a motion to stay a trial decision pending appeal in a family court matter. The appellant did not appeal the decision of Justice Wallace on the stay motion itself but seeks only to appeal the ruling in issue. In my view, the ruling is not an order subject to appeal in the absence of an appeal taken on the ultimate decision itself. For this reason, leave is denied. See Khan v. Pfeugel (1984), 44 C.P.C. 154, [1984] O.J. No. 413, 1984 CarswellOnt 402 (Ont. H.C.).

[2] If I have erred in this regard, however, the moving party fails to satisfy subrule 62.02(4) [grounds on which leave may be granted] of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended. Here, the issue is moot, no appeal having been taken from the ultimate decision of Justice Wallace. Moreover, there are no conflicting decisions of other judges or courts dealing with subrule 18(8) [confidentiality of offer to settle] of the Family Law Rules, O. Reg. 114/99, as amended. On the contrary. See Dorian B., Rachel B. and Malaika B. v. Children’s Aid Society of Durham Region and Van den Boomen (1994), 1 L.W.R. 112, [1994] O.J. No. 643, 1994 CarswellOnt 4442 (Ont. Gen. Div.), per Justice William P. Somers. Although Justice Wallace stated that she did not rely on the evidence in question, it nevertheless does form part of the continuing record in respect of the trial decision which is under appeal. I have no doubt about the correctness of her decision. Motion denied. Costs fixed at $2637.50 payable forthwith.