COURT FILE NO.: 02/080DV

DATE: 2004-10-01

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990,c.11

As amended

AND IN THE MATTER OF THE CHILD

E.B.R.

B E T W E E N:

CHILDREN’S AID SOCIETY OF HAMILTON-WENTWORTH

Lucie Laliberte for the Respondents

Respondents

Responding Party

• and -

C. W.-B. and K. R.

Tamra A. Mann for the Appellant C. W.-B., and

Salvatore Garcea for the Appellant K.

R.

Appellants

Moving Parties

HEARD: September 14 & 15, 2004

Kent, J

RULING ON MOTION

Background

1The Moving parties (“the parents”) seek to set aside the Order of the Registrar made 19 February 2004 dismissing the Respondents’ appeal for failure to perfect the appeal. If successful on that motion the parents also seek an extension of the time to perfect the within appeal. The motion is brought pursuant to Rule 61.16(5) which provides that a person affected by an order or decision of a Registrar may make a motion to a judge of the appellate court to set aside the decision of the Registrar.

2The decision appealed from was delivered on 26 November 2002 by the Honourable Mr. Justice Czutrin who made the child a Crown ward, without access, enabling an adoption. It is common ground that the appeal was not perfected, that the time for doing so expired, and that the parents brought no motion to extend the time for perfecting the appeal before the order of the registrar was made.

3It is the position of the respondent party (“the CAS”) that this court has no jurisdiction to entertain the motion herein, the child having being placed for adoption on 20 February 2004, one day after the Registrar’s order and before this motion was commenced.

Jurisdiction:

4The Child and Family Services Act, R.S.O.1990,c.11 provides at s. 69(5) that no extension for the time for an appeal shall be granted where the child has been placed for adoption. Section 140 of that Act requires the CAS to make all reasonable efforts to secure an adoption, but prohibits the CAS from placing a child for adoption until any appeal has been finally disposed of or abandoned.

5On its face, the dismissal of the appeal by the Registrar finally disposed of the appeal thus entitling and obligating the CAS to make all reasonable efforts to secure the adoption of the child.

6What then is the effect of Rule 61.16(5)? On its face it permits a person affected by the registrar’s decision to move forthwith to have that decision reviewed. If, however, the adoption placement has taken place before the motion is brought seeking to have the Registrar’s decision set aside, the review should not be conducted, submits the CAS. The parents, however, contend that procedural safeguards and fairness dictate that a placement for adoption should be set aside when it has been made with unnecessary promptness and effectively foreclosed the opportunity of the parents to seek a review of the Registrar’s order pursuant to Rule 61.16(5).

7In not entirely dissimilar circumstances, judges of this court have set aside orders where children had been placed for adoption. See N.P., 2001 O.J. No. 441 and Children’s Aid Society v. D. W. & W. (endorsement only) Court file No. C1157/98 Superior Court of Justice (Divisional Court) at Hamilton. Those cases are distinguishable on their facts in that they turn on a lack of service upon a parent and a clerical error, respectively. As long ago as 1981, however, Matheson CO.CT.J. made it clear, in L.S. v Children’s Aid Society of Lanark and Town of Smiths Falls [1981] O.J. No. 1301, that once a child was placed for adoption the court had no jurisdiction to extend the time for any appeal.

8On the evidence before this court it is clear that on 20 February 2004 the child in question was physically in the home of adoptive parents and that the CAS demonstrated a clear intention to have placed the child for adoption.

9In view of the foregoing, I have concluded that the placement of the child for adoption overrides the opportunity for a review of the Registrar’s order pursuant to Rule 61.16(5). This may, however, be subject to an overriding concern as to the child’s best interests. See N.P.

Best Interests:

10The child, E.B.R., was born […] 2000 and is now approaching four and one-half years of age. He was initially apprehended by the CAS shortly after his birth and has not seen his parents for the major portion of his life. The fact that his future remains a subject of debate in this court, almost 5 years after his birth, demonstrates a “failure” on the part of our system. Lawyers have not always acted appropriately, correctly or in a timely fashion. The court has not been able to make time available in a timely fashion. Transcripts have not been ordered and prepared in a timely fashion. Both parents have been unable to take advantage of all of the procedural safeguards available to them in a timely fashion. Ironically, the most prompt action taken was the placement for adoption once the registrar dismissed the appeal. While that action was perhaps unnecessarily prompt, it does not appear on the evidence to have been exercised in bad faith. While the court must be concerned that parents in similar circumstances receive all procedural safeguards to which they are entitled, the overriding and paramount consideration must always be a determination of what is in the best interests of the child.

11On this motion there is no independent expert evidence before the court that goes to that issue, but common sense tells us that, should the appeal of either or both parents continue, there will be no final decision concerning the child until he is well beyond five years of age and he will probably be at least six. Such a delay in the determination of a permanent placement, whether it is with adoptive parents or with one or both natural parents, must surely place him at real risk for future psychological problems. A similar general observation was made by Dr. Harriett MacMillan an Associate Professor in the Department of Psychiatry and Behavourial Sciences and Pediatrics at McMaster University. Her report, found in the Amended Cross-Motion Record, volume 1 at page 127, was prepared on the basis of information provided by the CAS and cannot be determinative of any issue as to what is in the best interests of the child. Dr. MacMillan does, however, have a most impressive curriculum vitae, see Cross-Motion Record, volume 1, page 259. I note her general observation that the longer a child remains “in limbo” the greater the risks for impairments in later emotional and social development. She observed further that “it is essential to a child’s well-being and development that they come to know with whom they will reside and who will care for them”.

12For the above reasons, I have concluded that it is not in the best interests of the child that his permanent placement remain undetermined.

Result:

13For all of the above reasons, the best interests of the child require this court not to interfere with the adoption placement even though that placement, in effect, foreclosed upon the final procedural safeguard available to his parents. The decision of the Registrar shall not be set aside. The motion is dismissed with no order as to costs.

Kent, J