COURT FILE NO.: DC 06-344 ML

DATE: 20060621

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CATHOLIC CHILDREN’S AID SOCIETY OF HAMILTON

S. James Mountford, counsel on behalf of the Catholic Children’s Aid Society of Hamilton

Applicant/Responding Party

• and -

P.H. also known as P.C.

Donna A. Wowk and Tina Mangiacasale, counsel on behalf of P.H.

Respondent/Moving Party

• and -

R.H.

Respondent

HEARD: June 6, 2006 (at Hamilton)

CAVARZAN J.

1Ms. P.H. moves for an Order extending the time for filing a notice of appeal and appealing from the Final Order of February 21, 2006 by LaFreniere J., granting Crown Wardship of her two children to the Catholic Children’s Aid Society of Hamilton (the C.C.A.S.). The C.C.A.S. has brought a cross-motion for dismissal of Ms. P.H.’ motion and, in the alternative, for an order for security for costs in the amount of $15,000.00.

BACKGROUND

2P.H. is a citizen of the United States of America, currently residing at […], New York. She entered into a common-law relationship with R.H., a Canadian citizen, in 1997. A son, E.M.H., was born in Hamilton on […], 1997. The couple married on June 9, 2000 in Niagara Falls, New York but continued to live in Hamilton. A second son, J.A.H., was born in Hamilton on […], 2003.

3In May, 2003 both boys were apprehended by the C.C.A.S. and a child protection proceeding was commenced. Both parents were represented by counsel. In August, 2003 Ms. P.H. was deported to the U.S.A. In her own affidavit in support of this motion, Ms. P.H. confirms that she was ordered to be removed from Canada initially on April 3, 2002 by reason of a criminal conviction for impaired driving, making her inadmissible to Canada.

4There is uncontradicted affidavit evidence about abuse of alcohol by both parents and, in particular, by Ms. P.H., giving rise to concern about child abuse and endangerment. Shannon Smith, a child protection worker employed by the C.C.A.S. deposed in her affidavit of May 31, 2006 that P.H.’ mother “has raised, and continues to raise, Mrs. P.H.’ first son because of Mrs. P.H.’ abuse of alcohol”. This statement too stands uncontradicted. The residence referred to above, at […], New York, is the residence of P.H.’ mother, E.P.. This “first son” in the care of E.P., appears to be a child born to P.H. at some time prior to the births of E.M.H. and J.A.H..

THE ISSUES

5Three issues are raised by these motions:

1. Should the time for serving a notice of appeal be extended?

2. In the case of J.A.H., do the provisions of s. 69(5) of the Child and Family Services Act, R.S.O. 1990 c.C11 as amended mean that the court is without jurisdiction?

Subsection 5 of section 69 of that Act provides that:

No extension of the time for an appeal shall be granted where the child has been placed for adoption under Part VII (Adoption)

3. Is this a case for the ordering of security for costs?

Should the Time be Extended?

6Ms. P.H. had 30 days after the making of the order by LaFreniere J. on February 21, 2006, to serve a notice of appeal. See rule 61.04(1) of the Rules of Civil Procedure and rule 38 of the Family Law Rules. By virtue of rule 2.03 of the Rules of Civil Procedure, the “Court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time”. The following provisions of the Family Law Rules echo the central objective of advancing the interest of justice referred to in rule 2.03 above:

2(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

7I take this latter prescription to mean that the parties and their lawyers are required, among other things, to be candid with the court, particularly in a case such as this in which the court is being asked to exercise a discretion in favour of the moving party. I shall comment further on this later in these reasons.

8Several important factors to be considered in determining what is necessary in the interest of justice are set for the in Miller Manufacturing and Development Co. v. Alden (1979), 13 C.P.C. 63 (Ont.C.A.) at paragraph 5. They include the following:

a) the existence of a bona fide intention to appeal;

b) the length of the delay;

c) any prejudice to the other party, and whether that prejudice can be compensated by costs; and

d) the merits of the appeal.

9In my view, factors a) and d) are closely related in this case. Despite ample opportunity to participate in the subject proceedings, Ms. P.H. deliberately avoided contact with the C.C.A.S. and the Family Court. There is compelling evidence that, despite the deportation orders in effect, Ms. P.H. resided in Ontario for significant periods of time with her husband R.H. who participated throughout the process and who kept her informed of developments in the case.

10In her affidavit of May 8, 2006, Shannon Smith, a child protection worker employed by the C.C.A.S. deposed at paragraphs 18 to 23 that:

• Ms. P.H. had been residing in Canada with her husband since April or May, 2004.

• Ms. P.H. continued to neglect the children and placed them at risk due to her alcohol abuse and domestic conflict issues.

• An affidavit of February 6, 2006 by Annette Marsh, the former landlady to P.H. and R.H., attested to the above facts and was filed with the court.

• Ms. P.H. had been in Canada in December, 2003 and had been living in Canada at various residences from the Spring of 2004 until late October, 2005.

• R.H. acknowledged to Shannon Smith on August 19, 2005, that P.H. was living in Canada.

• During the above periods, Ms. P.H. never attended court, contacted Shannon Smith, arranged for receipt of court documents, or came out of “hiding”.

11In February, 2005, the C.C.A.S. commenced a Status Review seeking Crown Wardship of E.M.H. and J.A.H. without access for the purpose of adoption. J.A.H. had been in the care of a paternal aunt, L.A., since February, 2005 pursuant to interim orders. E.M.H. had been in the care of another paternal aunt, D.S..

12The trial of the Status Review Application was called for hearing on February 21, 2006. A settlement was reached on that day.

13On April 22, 2005 Mazza J. made an order for substitutional service on Ms. P.H. by ordinary prepaid mail addressed to her c/o E.P. at […], New York, U.S.A. […]. The Society’s Settlement Conference Brief was served by this method on June 16, 2005, as was the Society’s Plan of Care on December 16, 2005, and the Society’s Trial Record and Affidavit Brief on January 6, 2006.

14In her supplementary affidavit of May 24,2006, Ms. P.H. deposes, rather disingenuously in my view, that substitutional service of the Society’s court documents was inconsistent and unreliable. No particulars are given as the basis for that assertion. Similarly, she acknowledges having received some court documents “but certainly not all of them”, without specifying which documents she did receive. At paragraph 20 she acknowledges receiving information about the proceedings from her husband.

15At paragraph 25 she asserts that she had no opportunity of any kind to participate in her sons’ protection proceedings after she was deported. She claims to have entered Canada only to see her children or to seek information about their welfare. Those assertions are contradicted by the overall facts before the court and by the affidavit evidence of the independent witness, Annette Marsh. At paragraph 32 of her May 24, 2006 affidavit, Ms. P.H. does not deny living in Canada subsequent to being deported; she prevaricates, however, by stating that “this was not entirely the case”.

16At paragraph 27 of the May 24, 2006 affidavit she states that:

I feared attending any court proceedings because I know the Society, Shannon Smith and my husband’s family would report any information of my intentions to be present in court to Canada Immigration in advance and I would be arrested.

17There is no basis for the above assertion. Shannon Smith of the C.C.A.S. deposed in paragraph 19 of her affidavit of May 8, 2006, that she saw Ms. P.H. at the rented house in Brantford, Ontario on May 6, 2005 when she and R.H. were being evicted. Ms. Smith did not report Ms. P.H.’ presence in Canada to the immigration authorities. Ms. P.H. admits at paragraph 45 of her supplementary affidavit of May 24, 2005 that “neighbours and my husband’s family saw me in Canada”. There is no suggestion in the materials that she was reported by them to the immigration authorities.

18I find misleading the affidavit of May 3, 2006 by Nancy Cash, a legal assistant to counsel engaged by Ms. P.H. in March, 2006. In that affidavit she asserts that the Order of February 21, 2006 by LaFreniere J. was made without Ms. P.H.’ knowledge, that Ms. P.H. first learned of the Order on March 15, 2006 and, at paragraph 11, that telephone calls are the only means of communication available to Ms. P.H. because she cannot enter Canada: “She was deported from Canada...during the period of time her children were apprehended by the [C.C.A.S.]”.

19In my view, the evidence before me establishes that Ms. P.H. travelled back and forth between the U.S.A. and Canada at will despite the deportation orders, that she lived with her husband, R.H., for significant periods of time during the course of these proceedings and was advised by him of the progress of the matter through its various stages, that she learned of the Order of February 21, 2006 shortly after it was made, not on March 15, 2006 as claimed, and that there is no basis for her assertion that she did not attend court proceedings for fear of being arrested.

20Having based her claim that her failure to participate in the court proceedings was the result of her fear of being arrested, Ms. P.H. now advances the alternative claim that post partum depression was the cause. No medical evidence is provided to prove the existence of that condition at the relevant times.

21It was not until April 7, 2006 that Ms. P.H.' Ontario counsel put the C.C.A.S. on notice that she intended to bring this motion to extend the time for serving a notice of appeal.

22The affidavits in support of Ms. P.H.’ motion are contradictory, contain inaccuracies and are misleading. A further example is found in paragraph 32 of the affidavit of P.H. sworn on May 3, 2006:

32. On or about February 21, 2006 I received a telephone call from my husband, R.H. advising me that he had been coerced into signing court documents for J.A.H. to be adopted and E.M.H. to be placed in long term care with R.H.’s sister.

23The Order of February 21, 2006 recites that Minutes of Settlement were filed and that the father, R.H., was represented by his counsel, Kathleen Baker. Ms. Baker is a very able and experienced family law practitioner.

24The allegation that R.H. was coerced is unsubstantiated and contrary to other evidence before the Court.

25Perhaps most telling of all is Ms. P.H.’ failure to deny or to contradict the affidavit evidence of her frequent abuse of alcohol and of the marital conflict which led to domestic violence and discord between the parents. This behaviour, to which these two children were exposed, as well as Ms. P.H.’ bizarre behaviour while visiting E.M.H., who was being treated for leukemia in the hospital, caused E.M.H. to be fearful of Ms. P.H.. None of that evidence is contradicted or challenged.

26As noted earlier, factors a) and d) are closely related in the circumstances of this case. In my view there would be very little, if any, merit in the intended appeal. That being the case, I agree with Mr. Mountford’s submission that there exists no bona fide intention to appeal. This motion is intended, rather, to delay further the placement of these two boys in a stable environment.

27This raises the issue of prejudice to the other party, which in this case involves prejudice to the best interests of the children.

Prejudice to the Other Party

28The following statements from paragraphs 11 and 12 of the reasons by Heeney J. in E.D. v. Children’s Aid Society of Oxford County [2002] O.J. No. 3097 are equally applicable to the circumstances in the case at bar:

11. The third consideration is prejudice to the other party. In the context of a protection application, it is appropriate to consider prejudice to the children as well, since it is their best interests that drive all decisions in cases of this nature. ...

12. The most significant prejudice to the children relates to their right to permanency planning. ...

29There has been no access by Ms. P.H. with the children for more than one year. Each boy is currently in a stable and permanent placement with members of the father’s family. E.M.H., now eight years of age, has expressed his preference in the past to not reside with Ms. P.H.. He rarely mentions his mother and on the occasions when he does, he refers to her as P.H.. J.A.H. is now three years of age.

30This factor weighs heavily against granting the motion to extend the time for serving a notice of appeal.

The Length of the Delay

31Ms. P.H. was in contact by telephone with her husband on or about February 21, 2006, the date of the Order in question. She contacted a Canadian lawyer on February 22, 2006. She met with her current counsel in Canada on March 15, 2006, and was advised of the meaning and consequences of the Final Order of LaFreniere J. She was made aware of the time limit on appealing from that Order.

32No notice of appeal was ever served. Her Notice of Motion was not delivered until May 3, 2006.

33In circumstances in which the other three factors did not weigh so heavily against granting the relief requested, the length of the delay in this case might not constitute delay sufficient to justify a refusal to grant the relief requested. Put another way, even if the length of the delay was not inordinate, the appeal is without merit and has no chance of success. It would be contrary to the best interests of the children to open up the possibility now that the permanency of their placements might be disrupted.

34Having concluded on the first issue raised by these motions that the time for serving a notice of appeal should not be extended, there is no need for me to address the second and third issues and I decline to do so.

CONCLUSION

35The main motion is dismissed and the cross-motion is allowed in part. If necessary, brief written submissions on the matter of the costs of these motions may be exchanged and sent to the court within the next 30 days.