COURT FILE NO.: 247/06
DATE: 20061020
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Children’s Aid Society of the County of Simcoe, Applicant, Respondent on Appeal, (Responding on motion)
-and-
M.J., Respondent, Appellant, Moving Party on motion;
-and-
M.S., Respondent
HEARD: October 18, 2006
BEFORE: Lane, J.
COUNSEL: Ian Mang, for the Moving Party; Debora Lyons, for the Applicant, responding; Manjusha Pawagi, Children’s Lawyer, for the Child J.; M.S. in person.
R E A S O N S F O R D E C I S I O N
LANE J:
[1] This is a motion by M.J., the biological father of the male child J. (age 6) and stepfather of the female child V. (age 10), both of whom are wards of the Crown. The respondent M.S. is the biological mother of both children. The applicant Children’s Aid Society (CAS) is the agency working with the children and the parents for the welfare of the children. It has recommended the placement of the children in adoptive homes, but not together.
[2] The children came into care in August of 2001 from the care of their mother who, sadly, suffered from mental health and substance abuse problems. In February of 2003, the court ordered that they would not be returned to the mother. M.J. currently resides with E.K. (EK) and they proposed a plan for the care of the children, which was accepted and they had custody of the two children from April 2003. Unfortunately, matters did not go entirely well and in August 2004, V was returned to the care of the CAS and placed in a foster home to await adoption. An order was made that she become a Crown ward with no access to the parents for the purpose of adoption. She was subsequently placed for adoption but the plan broke down about Christmas 2005. A status review has been launched to consider her future. In that proceeding, M.J. and EK have proposed a plan that V should be returned to their care.
[3] J. continued to live with M.J. and EK until they were evicted from their apartment for unpaid rent. From October 2005 until the order of Wildman J. in March 2006, he lived with his maternal grandparents. On March 6, 2006, after a 53-day trial, Wildman J. made an order that J be made a Crown ward with no access to the parents for the purposes of adoption. The order was not made upon the basis of any abuse of J, who is said to be a happy and reasonably well-behaved little boy. Rather it was made on the basis that M.J. and EK could not meet the emotional needs of J. That order is currently under appeal. The appeal is not yet perfected and will likely be heard in February 2007. In the appeal M.J. asks that J. be returned to his care.
[4] M.J. now brings a motion asking that the court permit him to commence a status review in respect of J. so that the status of the siblings J and V may be decided in the same court at the same time. In this way the decision as to each will be informed by the evidence as to the other. If such leave is granted, M.J. proposes to withdraw the appeal of Wildman J.’s order as to J.
[5] Mr. Mang, for M.J., submits that the court has power under section 134(2) of the Courts of Justice Act to grant him the authority to commence a status review proceeding. The respondents on the motion, CAS and the Children’s Lawyer, for J., oppose the commencement of a new review of J’s status. They point out that Wildman J.’s judgement was delivered only recently, in March 2006, after a lengthy trial ending in November 2005 in which many witnesses were heard and findings made as to the lack of suitability of M.J. and EK as parents for J. Nothing has changed in the brief period since the trial. To launch a new status review now would in effect allow M.J.’s appeal from that judgment and direct a new trial. Further, they submit that the CFSA prohibits a new review until at least six months after the termination of a previous review.
[6] Section 64 of the CFSA provides by subsection 4, that an application for review of the child’s status may be made on notice to the society by, inter alia, a parent. However, subsection 7 provides that no such application may be brought within six months of the final disposition of an appeal from a previous application. Since the appeal from Wildman J. is such an appeal, its existence precludes the bringing of another status review as to J at this time.
[7] Mr. Mang submitted that section 134(2) permits the court to make the order he seeks despite section 64(7) of the CFSA. Section 134(2) provides:
On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal.
[8] This section has been held, in Falkiner, to confer a broad-based jurisdiction to make orders to prevent prejudice to a party[^1]. While the children are not parties in the formal sense, it has been held that non-parties whose interests may be affected are included.[^2] In Waxman[^3], the Court of Appeal expanded on Falkiner at paragraphs 19 and 21. At 19, the Court acknowledged the statement in Falkiner that the jurisdiction is broad-based, and stated that the section addressed situations where there is no specific remedy provided in the CJA or the Rules and some form of intervention is needed to prevent prejudice to a party to the appeal. It acknowledged that no exhaustive list of the kinds of possible orders could be compiled, and adopted the views of Morden A.C.J.O. in Peel[^4] that such an order is to:
“prevent a situation arising where an appellant is successful on its appeal but in the meantime, either the subject-matter of the proceeding has disappeared or in some other way the litigation and its ultimate result have been rendered nugatory.
[9] The court cited with approval the decision in Ahani[^5], where the court stayed a deportation order, even though it was not the subject of the appeal, because the appeal would be nugatory had the order been executed. At paragraph 21, the Waxman court continued:
The jurisdiction under s. 134(2) is broad, but it is not unlimited. The focus of any remedy provided under the section must be on preventing prejudice in the context of the appeal. The prejudice must relate to a party’s ability to meaningfully participate in the appeal or to the court’s ability to hear and decide the appeal on its merits in a timely fashion. Nor should s. 134(2) be construed as supplanting specific provisions of the CJA or the Rules … governing orders lifting stays, imposing stays or orders for security for costs.
[10] These passages cast light on the true scope of section 134(2). If, as the Waxman court has said, the section does not supplant specific provisions of the CJA, I do not see how it could possibly be read as supplanting the specific provisions of the CFSA which prohibit the bringing of a further status review as to J. until six months after the final disposition of the appeal now pending. In addition, there is no prejudice to the ability of any party to participate in the appeal or of the court to adjudicate it.
[11] The Superior Court also exercises the function of parens patriae which gives it a special obligation to guard the best interests of children. While this was referred to in argument, it was not pressed and I am of the opinion that the parens patriae jurisdiction cannot entitle the court to make an order expressly prohibited by the CFSA. That jurisdiction is normally invoked to fill a gap in legislation and not to supersede applicable legislation.
[12] In any event, I am not persuaded on the merits that it is in the best interests of J. that the court should, in effect, allow the appeal without a hearing, set aside 53 days of trial and a very considered decision which gives certainty to the child as to his future, and direct a new trial with all of the delay involved. This child deserves not to be left in limbo for another couple of years or more when there is considerable evidence in the record that nothing has really changed. While the existence of a positive relationship between the siblings is important, there is no reason to disturb the existing situation for that reason. The relationship can be addressed in other ways should the courts hearing the appeal and the status review regard it as desirable to do so.
[13] Accordingly, the motion to authorize the bringing of a new status hearing is dismissed. The motion to extend the time for perfecting the appeal is allowed and the time extended to January 11, 2007 on terms that the parties will fix the appeal to be heard on February 26, 27 and 28, 2007, being the dates tentatively booked by the court office.
[14] Costs, if sought and not agreed to, may be the subject of brief written submissions within thirty days.
Lane J.
DATE: October 20, 2006
[^1]: Falkiner v Ontario (2000), 189 D.L.R. (4th) 377 (C.A.) para. 19 [^2]: CPC International v Seaforth Creamery, [1996] O.J. No. 3537 (C.A.) Paras. 6,7. [^3]: Waxman v Waxman, [2003] O.J. No.73 (C.A.) [^4]: Peel (Regional Municipality) v Great Atlantic& Pacific Co. of Canada (1990), 74 O.R. (2nd) 161 at 163 (C.A.) [^5]: Ahani v Canada (A-G) (2002), 155 O.A.C. 1 (C.A.)