COURT FILE NO.: 424/08
DATE: 20080923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO
Respondent
- and -
L.H.
Appellant
- and -
M.H.
Respondent
Lauren Stringer, for the Catholic Children’s Aid Society
Self Represented
Sara Wunch, for the Children
HEARD at Toronto: September 23, 2008
JANET WILSON J.:
[1] The appellant mother, Ms. L.H. is seeking leave to appeal the order of Frank J. of the Superior Court of Justice, dated July 31, 2008. Frank J. dismissed the appellant’s motion for a stay of the order of Zuker J., dated July 10, 2008 (the “Judgment”) pending appeal of the Judgment.
[2] Zuker J. ordered the two children, J. and E. be placed in the care of their father M.H. subject to the supervision of the Children’s Aid Society of Toronto (the “Society”) for a period of twelve months.
[3] The respondents are the Society, the father Mr. M.H., and Office of the Childrens’ Lawyer who represents both of the children.
[4] The motion for leave to appeal is dismissed for the reasons I will outline.
TEST FOR LEAVE TO APPEAL
[5] Leave to appeal pursuant to s.62.02(4) of the Rules of Civil Procedure shall not be granted unless,
(a) there is a conflicting decision by another judge or a court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
THE TRIAL
[6] The trial of this matter commenced in January, 2008, in the Ontario Court of Justice. The trial took eighteen days to complete over a span of six months.
[7] Zuker J. released the 140 page Judgment on July 10, 2008. Zuker J. found the two children to be in need of protection pursuant to s. 37(2) of the Child and Family Services Act. He concluded that the appellant was perpetuating parental alienation of her children against their father. Zuker J. also concluded that the appellant had made various false allegations that the children had been sexually molested and physically abused by their father.
[8] Zuker J. ordered that the children be immediately placed in the care of their father subject to a twelve months supervision order and various conditions. He ordered that access by Ms. L.H. to the children be at the discretion of the Society including terms of appropriate supervision.
THE MOTION TO STAY
[9] After receiving the Judgment, the appellant did not either proceed expeditiously, nor did she proceed before the correct court with respect for the motion for the stay of the Judgment. However, I do not determine the merits of the motion for leave to appeal the order for stay on technical grounds. The respondents voluntarily agreed to withdraw their technical arguments with respect to missed time limits and agreed that this leave motion should be determined on its merits.
[10] The appellant opposed the transfer of the children. However, with police assistance on August 1, 2008, the children were transferred to the care of their father in accordance with the Judgment.
[11] Frank J. correctly applied the test with respect to a stay of proceedings pending appeal set out in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. S.B., [2006] O.J. No. 1808. These factors are relevant:
(i) an assessment of the merits of the case to ensure there is a serious issue to be tried on the appeal;
(ii) an assessment of whether the applicant would suffer irreparable harm if the application were refused, and
(iii) an assessment as to which of the parties would suffer greater harm from the granting or refusal of the stay.
[12] Justice Frank concluded, after carefully considering the material before her that the appellant had failed to meet the test that there was a serious issue to be tried with respect to the appeal. In any event, she concluded when considering the other two factors relevant to granting a stay outlined in CAS v. Manitoulin, that the appellant had not met the required test.
[13] Justice Frank’s conclusion that a stay is not warranted is well-founded on the evidence.
[14] Prior to the trial before Zuker J., Dr. Amin conducted extensive psychological assessments upon both of the parties as well as the children. He also testified at the trial. The learned trial Judge states at pages 136-137 of his reasons:
I accept Dr. Amin’s conclusion that the children are the victims of parental alienation on the part of the mother. Ms. L.H. has projected her own beliefs on to her children with the result that they may fear being with their father. There is jurisdiction to make the order the Society is seeking.
I would not be finding in the best interests of the children if I were not convinced their emotional harm will worsen and remain unresolved in the future.
I find that Ms. L.H. simply does not want Mr. M.H. to have access. Otherwise, there would be no purpose to her continued parading of the scandalous allegations she makes to friends, colleagues and professionals.
[15] Zuker J. concludes in the Judgment at page 140 that the following terms need to be imposed:
These children must be relocated and they must be relocated quickly.
Therapy must commence as soon as possible.
The children will be in the father’s care immediately and therefore when the school year resumes. This will make it clear to the school authorities that the father is a full parent and very important in the lives of these children. He might consider delivering a copy of these reasons to the children’s school.
[16] I note that the appellant in argument before me raise issues with respect to potential breaches of the Canadian Charter of Rights and Freedoms due to the interference by the learned trial judge in allowing her to make full answer and defence. I note that these issues were not raised or argued before Frank J. If these submissions have any merit, they are the subject matter of the appeal proper and not this motion.
[17] Frank J. applied the correct legal test and determined that a continued stay was not appropriate. There is no reason to doubt the correctness of her decision. I agree with her decision. There are no conflicting decisions with respect to the applicable legal test for granting a stay pending appeal. These cases are very factually dependent. There are no public policy reasons why this decision is a matter of public importance justifying leave to appeal being granted.
[18] I conclude that the application for leave to appeal pursuant to either s. 62.02(4)(a) or (b) has no merit and therefore the motion for leave to appeal the refusal of the stay order is dismissed.
FIXING THE DATE OF THE APPEAL
[19] I requested the parties to provide me with information about when this appeal of the Judgment could be heard on an expedited basis. Ms. L.H. confirmed in oral submissions that she received a copy of the transcripts on September 19, 2008. She then has thirty days to perfect her appeal and she has undertaken to this Court to do so. The respondent in turn has thirty days to respond after receipt of the appeal material. All parties, including Ms. L.H., requested that I obtain a date as soon as possible for the hearing of this appeal, even though the appeal is not presently perfected.
[20] In my view, it is appropriate to set a date now for the appeal on an expedited basis in the facts and circumstances of this case.
[21] At the request of the parties, I arranged with the Family Law Office for this matter to be heard on December 8, 2008 for a half-day to a maximum of a one-day hearing. Ms. L.H. unfortunately had left the courtroom prior to the date being confirmed. Counsel have agreed to ensure that Ms. L.H. is made aware of this date. If there are any problems with this scheduled date, the parties are to be in touch with Steve Cameron, at the Family Law office.
JANET WILSON J.
Date of Reasons for Judgment: September 23, 2008
Date of Release: September 26, 2008
COURT FILE NO.: 424/08
DATE: 20080923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO
Respondent
- and -
L.H.
Appellant
- and -
M.H.
Respondent
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: September 23, 2008
Date of Release: September 26, 2008