Court File and Parties
OTTAWA COURT FILE NO.: 89-FL-000271 DIVISIONAL COURT FILE NO.: 03-DV-834 DATE: 20030401
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant (Respondent on the Motion)
- and -
MR. F. Respondent (Moving Party)
Counsel: Tracy Engelking, for the Applicant Catherine Palidwor, for the Respondent
HEARD: March 27, 2003
BEFORE: BELCH, J.
Reasons for Judgment
[1] On December 4, 2002 the trial judge granted the Children’s Aid Society of Ottawa’s (the “Society”) application for Crown wardship without access with respect to the child P.M.F., then age four, now five. Mr. F., the child’s father, participated in the three-day trial.
[2] Mr. F. in appealing the decision failed to observe Rule 38 of the Family Law Rules which requires he serve interested parties with the notice of appeal within 30 days of the trial decision.
[3] Rather, Mr. F. contacted the Society by telephone and spoke with the worker on December 12, 2002 and indicated he was “going back to court”; on December 13, 2002 the worker received a call from Mr. F.’s new lawyer; on December 27, 2002 Mr. F. attended at the Society’s Telesat office and spoke with an “employee”, advising her in the employee’s words, “he has a new lawyer and is appealing the judge’s order”; on January 30, 2003 Mr. F. caused to be filed a motion record at the court office and on February 3, 2003 the Society received a facsimile transmission of the motion record.
[4] Mr. F. seeks an extension of time for the serving and filing of his Notice of Appeal and in doing so relies upon Family Rule 3(5). He cites as reasons for his delay the time required to meet Legal Aid’s “opinion” requirements; his employment which caused him to be in Toronto for two weeks; the intervening Christmas/New Year holiday period; and finally the court file itself was misplaced.
[5] The Society opposes an extension of the time period. It is the position of the Society that Mr. F. had received his Legal Aid certificate by December 16, 2002, there was a four-week period and he was only in Toronto for two weeks of that period. Further, the Courthouse was not closed during the entire holiday season.
[6] The Society relies on D. (E.) v. CAS of Oxford, 2002 CarswellOnt 2598, a decision of the Superior Court. Justice Heeney decided the Motions Court should look at the length of delay, the intention of the appellant to appeal within the time allowed for appeal, prejudice to the respondent, and the merits of the appeal. In D. (E.), supra the respondent was the Children’s Aid Society of Oxford, however Justice Heeney said it was appropriate to consider prejudice to the children as well. He refused to grant an extension.
[7] The delay in D.(E.), supra was 80 days; here it is 30 days. The first indication of an intention to appeal in D.(E.), supra coincided with the expiry of the appeal period, but the judge found that constituted sufficient intention to appeal. Here, Mr. F. expressed his intention eight days after judgment and repeated it on several occasions within the appeal period. I am satisfied he met the second requirement as expressed in D.(E.), supra.
[8] The third consideration is prejudice to the respondent Society and the child. In D.(E.), supra the Children’s Aid Society of Oxford was further along the adoption process. Here, the same progress has not been taken, largely I expect because the Society had “notice” of the impending appeal. I agree with Justice Heeney the best interests of the children take priority when prejudice is considered. At their tender age, any delay is significant. However, the children in D.(E.), supra had been with the Children’s Aid Society of Oxford for 30 months. Here, it is 21 months. I am not satisfied there is sufficient prejudice to an adoption of the child, P.M.F., to prevent an extension.
[9] Finally, Justice Heeney after reviewing the reasons of the trial judge in D.(E.), decided the potential appeal lacked merit.
[10] Here, Mr. F. participated fully in the trial and expressed early on his desire to appeal. The merits of that appeal should be decided by the court considering the appeal in full with benefit of the trial transcript and submissions. Accordingly, the extension is granted. If a formal Notice of Appeal needs to be filed and served, Mr. F. is to do this on or before April 10, 2003. Given there could well be an adoption if Mr. F. is not successful, the hearing of the appeal, once perfected, should be expedited.
[11] This is not a case for costs.
MR. JUSTICE DOUGLAS BELCH Released: April 1, 2003
OTTAWA COURT FILE NO.: 89-FL-000271 DIVISIONAL COURT FILE NO.: 03-DV-834 DATE: 20030401
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant (Respondent on the Motion)
[12] and –
MR. F. Respondent (Moving Party)
REASONS FOR JUDGMENT
BELCH J.
Released: April 1, 2003