for York Region, 2010 ONSC 4686
COURT FILE NO.: DC-10-00179-ML
DATE: 20100730
CORRIGENDA: 20100830
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
P.H.
P.H., In Person
Applicant
- and -
CHILDREN AND FAMILY SERVICES FOR YORK REGION
Ms. Amelia M. James, for the Respondent
Respondent
HEARD: July 27, 2010
ENDORSEMENT
LAUWERS J.
[1] The applicant seeks an extension of time within which to appeal the decision of Rogers J. dated December 3, 2008 in which she ordered that the child D. born […], 2007 was in need of protection under section 37(2)(g.1) of the Child and Family Services Act, R.S.O. 1990, c. C.11, that she be made a ward of the Crown and placed in the care of Children and Family Services for York Region (the “Society”), and that there be no order for access between the child and her parents, for the purposes of adoption. P.H. filed a Notice of Appeal on December 31, 2008 but did not perfect it in time.
[2] According to the affidavit of Dianna Horrex, a legal assistant employed by the Society, dated July 12, 2010, the child had been placed for adoption on September 21, 2009 and the adoption was finalized on June 22, 2010.
[3] The Society relies on section 69(5) of the Child and Family Services Act which provides:
69(5) No extension of the time for an appeal shall be granted where the child has been placed for adoption under Part VII (Adoption).
[4] P.H. referred to the decision of Nelson J. in Children and Family Services for York Region v. E.T., 2009 72329 (ON SC), [2009] O.J. No. 5587 (S.C.J.). Nelson J. referred to the decision of M.A. McSorley J. in A.M. v. Chatham-Kent Integrated Children’s Service Children’s Aid Society, [2006] O.J. No. 2984 (O.C.J.) in which the Court permitted the biological father to challenge the process leading to an adoption order in the face of a similar provision in section 157 of the Child and Family Services Act. The Chatham-Kent decision, however, eventually found its way to the Court of Appeal in [2007] O.J. No. 2135 (leave to appeal dismissed by the S.C.C.).
[5] The Court of Appeal held:
17 Subsection 157(1) of the Child and Family Services Act, R.S.O. 1990, c. C.11, provides as follows:
An adoption order under section 146 is final and irrevocable, subject only to section 156 (appeals), and shall not be questioned or reviewed in any court by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, habeas corpus or application for judicial review.
18 In our view, in light of S. 157(1), this appeal cannot succeed in the circumstances of this case. We say this for the reasons that follow.
19 First, as is conceded by the appellant, the appellant was precluded by S. 64(9) from bringing a status review application after F.M. had been placed for adoption on October 3, 2005.
20 Second, pursuant to S. 157(1), the final adoption order precluded the hearing of any set aside motion.
21 While we refrain from determining whether a motion to set aside could succeed in different circumstances, we are of the view that it certainly cannot in the circumstances of this case.
22 There was no persuasive evidence that the CAS deliberately misled the appellant in any way or that it deliberately ignored the December 22 material or took any steps to halt the adoption hearing for the purpose of circumventing a set aside hearing. We do not agree with the appellant's characterization of the CAS conduct in this case as "fraud", a characterization made for the first time at the appellate level. In any event, we see no foundation for that allegation.
[6] It therefore appears that in some circumstances, an adoption can be challenged despite the wording of the Child and Family Services Act.
[7] I invited P.H. to make submissions on the circumstances that he believed should persuade me to permit the appeal to continue despite section 69(5) of the CFSA. He made seven main submissions.
[8] First, P.H. submitted that the Society had misled Rogers J. about the import of the earlier decision of Perkins J. He referred to page 17 of the transcript of proceedings before Rogers J. on November 20, 2008:
THE COURT: …and I’m not quite sure where the issue of the illegal infant name fits in particularly since I found he is a parent, so.
MS. JAMES: Well, this was an issue that was addressed by P.H. in a motion before Justice Perkins. That motion was dismissed.
THE COURT: Right.
MS. JAMES: The Society had on the original protection application the last name of H. for the child, D., and P.H. indicated to us that he does not want his…
THE COURT: Right.
MS. JAMES: …last name used. So the application was amended.
[9] P.H. argued that the motion heard by Perkins J. was not dismissed. The particular text that he refers to in the order of Perkins J. dated September 9, 2008 is the following:
Also unopposed, CAS to pursue to correction of statement of live birth to show proper surname, and CAS to pursue correction of names and dates in assessment and name on OHIP record. Remainder of F’s motion is dismissed.
[10] Ms. James advised that the motion by P.H. sought a finding that the CAS actively sought to mislead the Court through the use of the wrong surname for the child. Perkins J. declined to do so, hence his note that “remainder of F’s motion is dismissed.” P.H. did not disagree with Ms. James’ submissions on what he was seeking from Perkins J. or in the outcome. This submission accordingly has no merit.
[11] Second, P.H. is very troubled by the suggestion that he might be a schizophrenic. In the transcript at page 29, the following appears:
MS. JAMES: Now P.H. appears to be very concerned about an allegation that was made that he was schizophrenic. The Society has not asserted that allegation. There is no evidence to support that allegation and The Society is not trying to prove that allegation in the Summary Judgment motion.
[12] P.H. expresses his argument as follows:
- On November 20 2008 Amelia M James further misleads the court when she even denies CAS affidavit[s] she commissioned and relied on previously with false Schizophrenia claims against me, (CAS affidavit March 7, Page 11 para 38 [and Mar 13 2007]*) as mentioned in para 83 below. Refer to the Transcript Page 29, Lines 4-7 and Page 31, Lines 4-5. (Motion Record Tab ‘9’)
[13] The CAS affidavit sworn by Kellie Coelho on March 7, 2007 states:
I subsequently met with P.H. on March 5, 2007 at York Central Hospital. P.H. provided me with his date of birth and indicated that he was currently self-employed in engineering, and that his company was called Ontario Thermoscan Services. P.H. advised that he and Ms. S. had been together since 2003, and that they had been living together since September 2006. P.H. confirmed that he had no access with Noah and indicated that he was not certain whether Noah was his child. P.H. spent much time complaining about what he perceived to be false allegations made about him by Ms. S’s mother, Ms. B., and he stated that he did not want her involved with D.. He denied being schizophrenic, and agreed that the Society could have access to his medical records from his doctor, but indicated that he did not want me to have a conversation with his doctor, indicating that he was concerned that I would ask “leading questions” that would lend his doctor to document that he had mental health problems, and thus jeopardize his business.
[14] P.H.’s particular concern is that he does not want to be labelled as a schizophrenic in the CAS provincial “database”.
[15] Ms. James advises that the database does not contain personal information about individuals, only dates of contact. Accordingly, P.H.’s fear of being so labelled in the database is misplaced. Even if his fear is justified, it is not relevant to the issues before Rogers J. or to any appeal of her decision.
[16] Third, P.H. is very concerned about the quality of the report of Dr. Nitza Perlman filed by the Society. He has a number of complaints. First, P.H. notes that Dr. Perlman’s revised report of March 8, 2008 does contain the correct name for the child, but that the earlier draft did not. P.H. suggests that it was disingenuous for the report to be filed with the correct name without an indication that the name was corrected because of the order of Perkins J. He says that this gives the impression that the report was correct at the outset, and was therefore more persuasive, than it would be if the error had been acknowledged. He considers this to be misleading. I do not find this submission to be persuasive; the correction was simply to give effect to the order of Perkins J. and having to make it does not affect the weight of the report.
[17] Second, P.H. notes that Dr. Perlman “did not report schizophrenia in Ms. S. or her dysarthric speech disability but focused only on cognitive disability.” The issues were somewhat canvassed in his complaint to the College of Psychologists and in Dr. Perlman’s answer to that complaint. She was conducting a parenting assessment. I note that if she had diagnosed schizophrenia, it would have made the negative evaluation of Ms. S.’s parenting ability even worse. I agree with P.H. that this diagnosis is important and calls into question the quality of Dr. Perlman’s assessment. But it does not tend to undermine the decision of Rogers J. Instead, it reinforces it.
[18] Third, P.H. complains that during Dr. Perlman’s parenting assessment the foster mother was permitted to be present, which must have biased the investigation, since it is only natural that D. would be more attentive to her foster mother than to her biological mother.
[19] Fourth, Dr. Perlman sought to have P.H. complete an MMPI test but she gave him a question book with two pages of questions that were already answered. She then did not require him to finish all of the questions but only 400 of them. As a result of his distress at this process, he withdrew his consent to have her assess him.
[20] This is referred to specifically at paragraph 23 of the decision of Rogers J. Also, unfortunately, it states that the MMPI was administered to Ms. S., but that is not the case as Dr. Perlman’s report notes at pages 4 and 5. Since there is no mention of Ms. S.’s MMPI result in the report it could not have influenced Rogers J. I now turn from P.H.’s criticism of the Perlman report to his main submissions.
[21] P.H’s fourth main challenge is that important information about the child’s mental health was not disclosed to Rogers J. The affidavit of CAS worker Pamela Stiver dated November 3, 2008 used an adoptability report dated June 25, 2008, but failed to disclose the Infant Nurse Program Assessment Summary dated September 22, 2008 which detailed serious problems, in particular very poor scores on the ERIK and Nipissing tests. This report, he alleges, was not disclosed to him before the hearing. The Infant Nurse Program Assessment Summary notes:
The foster mother reports that 18 month old D. has been having severe temper tantrums and had banging episodes for the last few months. She reports that D. becomes very aggressive with herself and her foster mother. It is not unusual for her to scratch or head but her caregiver when angry. The foster mother also reports that she is difficult to settle down for sleep and will repeatedly bang her head on the side of the crib if left unattended. She will only fall asleep with a bottle. The foster mother further reports concerns that D. is socially ‘off’ compared to other children her age. She has poor play skills and has a difficult time with new activities. She does not show interest in toys and things that other people are interested in.
[22] P.H. argues that this undermines the Society’s position and affects the validity of the decision of Rogers J.
[23] The adoptability report filed with Rogers J. discloses that “there can be a genetic link with a number of different mental health problems.” These are associated both with the child’s mother and father. Ms. James notes that Rogers J. discounted P.H.’s challenge of adoptability at paragraph 38 of her decision, which provides:
[38] There is a report on the adoptability of the child. The report is challenged by P.H. but he offers no expert evidence. Moreover, since he has not even seen D. seen October 2007, he is not in any position to offer layperson insight on her adoptability.
[39] The adoptability report notes some risks in an adoption of D. and that there are cognitive disability issues with her mother and behaviour problems with her father that might be related to mental health concerns for which there is no medical evidence. The parents have not provided any background information that might show any possible genetic links for D.. However, having considered these risks, Ms. Stiver concludes that the Society can find the appropriate adoptive parents who can deal with these issues. To date, D. has met all her milestones, but the Society would tell adoptive parents all that is known about D. and offer support for issues that arise.
[24] I conclude that the missing information P.H. complains about would only have reinforced the decision of Rogers J. to make the order she did. I note that P.H’s concern about adoptability is superseded by the fact that the child has been adopted. I also have no doubt that the child’s situation has been fully disclosed to the new parents and that the Society will ensure that the child is getting the treatment she needs.
[25] Sixth, P.H. complained to the Law Society of Upper Canada about the conduct of Ms. James at the trial. He argues that the materials provided to him by the Law Society have redacted section headings. He claims that this exhibits a lack of transparency and fairness. I do not believe that anything therein affects the merits of the decision of Rogers J. since it is directed at something altogether different
[26] Finally, P.H. somewhat paradoxically, wants to appeal the decision of Rogers J. that he is D.’s parent within the meaning of the Child and Family Services Act. Rogers J. addresses this at paragraph 4 of her decision.
The respondent father, P.H., brought a motion at the time of the summary judgment motion that the court find that he is not a parent of D.. P.H. left the court room, not returning, in the middle of his motion regarding paternity and before the summary judgment motion. Ms S. was surprisingly absent the day these matters were heard. The Public Guardian and Trustee, on behalf of the respondent mother, noted that Ms S. had never denied the statements of the society that P.H. was the father. He was her longstanding partner. After canvassing the definition of “parent” in section 37 of the Child and Family Services Act (and hence section 8 of the Children’s Law Reform Act), the court concluded that the presumption in section 8 (4) of the Children’s Law Reform Act had not been rebutted in that the respondents had been cohabitants in a relationship of permanence for far more than 300 days. P.H. was found to be a parent of D..
Concluding observations
[27] P.H.’s position on his status as a parent does focus the purpose of the motion. He does not want to be labelled as a person in whose presence, in the words of section 37 (2) (g.1) of the Child and Family Services Act, D. is “likely to suffer emotional harm…and that the child’s parent or person having charge of the child does not provide, refuses to or is unable to consent to, services or treatment to prevent the harm.”
[28] P.H. spent little time discussing the best interests of the child, which is at the root of the undertaking. Many of the issues that he raises are concerned with settling scores with Dr. Perlman, Ms. James and the Society. He had a full opportunity to participate in the hearing before Rogers J., but chose to leave at the outset. Rogers J. nonetheless took into account his voluminous written submissions which were filed, as is indicated here and there throughout her decision.
[29] P.H. does not seek, either on his own behalf or on behalf of Ms. S., a return of D. to their care. Taking together all of his submissions and the evidence in the record before me, I see no basis for concluding that the decision of Rogers J. was so fundamentally flawed in terms of procedural fairness that the adoption should be opened up despite section 69(5) of the Child and Family Services Act, in light of the Court of Appeal’s decision in A.M. v. Chatham-Kent Integrated Children’s Service Children’s Aid Society and for concluding that leave should be granted for him to pursue an appeal. I therefore dismiss P.H.’s motion.
”P.D. Lauwers”__
P.D. Lauwers J.
RELEASED: August 30, 2010
CORRIGENDA
Throughout entire Endorsement - The name of accused changed to initials in order to conceal the identity of the child.
Paragraph 1 - The full name of the child deleted in order to conceal the identity of the child.