T.G. v. Children’s Aid Society of Ottawa
CITATION: T.G. v. Children’s Aid Society of Ottawa, 2011 ONSC 2942
DIVISIONAL COURT FILE NO.: DV-10-1700
DATE: 2011/05/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, SWINTON and LINHARES de SOUSA JJ.
BETWEEN:
T.G. Applicant in Appeal (Respondent)
– and –
THE CHILDREN’S AID SOCIETY OF OTTAWA Respondent in Appeal (Applicant)
COUNSEL:
Bryan Delaney, for the Applicant in Appeal/ Respondent Father
Deborah Rosefield, for the Respondent in Appeal/Applicant
Marcelle Story, for the Child
HEARD: May 10, 2011
REASONS FOR JUDGMENT
SWINTON J. (ORALLY)
[1] The Children’s Aid Society of Ottawa (“CAS”) has brought a motion to enforce a settlement of an appeal in a child protection matter pursuant to Rule 49.09(a) of the Rules of Civil Procedure.
[2] The appellant, T.G., made an offer to settle dated January 6, 2011 in which he would withdraw his appeal from the order of Parfett J. dated December 17, 2010 granting an order for Crown wardship of his daughter, S.T., for purposes of adoption, provided the CAS would undertake to place the child with a family in Canada for purposes of adoption. The offer remained opened for acceptance “until one minute following the commencement of the appeal or until withdrawn.” The offer was never formally withdrawn.
[3] The issue in this motion is the following: when does an offer in the above terms cease to be available for acceptance?
[4] On April 8, 2011, the appeal of the order of Parfett J. was scheduled to be heard by a panel of the Divisional Court. At the opening of the hearing of the appeal, the panel, on its own initiative, requested submissions of counsel concerning the appointment of the Children’s Lawyer in view of the concerns expressed by the trial judge concerning the CAS proposal, which would place the child for adoption with her maternal aunt in Ethiopia. After hearing submissions from counsel, the panel ordered that the Children’s Lawyer be appointed to provide legal representation and act as counsel for the child. The appeal was adjourned to the next sittings of the Divisional Court in Ottawa in June 2011. The panel did not remain seized.
[5] On April 12, 2011, following the receipt of an email from the child’s maternal family in Ethiopia, the CAS accepted the January 6, 2011 offer to settle and provided the necessary undertaking to place the child for adoption in Canada.
[6] The appellant takes the position that the offer had expired, as the appeal had commenced on April 8, 2011. We disagree. It is evident that the appeal did not commence that day for the following reasons:
(1) The panel heard no argument on the merits.
(2) By its endorsement, the panel clearly concluded that it could not properly hear submissions without the child being represented.
(3) The matter was adjourned to another panel.
[7] Relevant Canadian case law concerning offers to settle points to the conclusion that a non‑jury civil trial commences at the earliest once a judge is present and prepared to hear the matter on its merits. See, for example, Hornick and Kochinsky, 2005 CarswellOnt. 1589 (Ont.S.C.J.) at paragraphs 416 to 421; Denison v. M. Loeb Limited (1993), 1993 5484 (ON SC), 16 O.R. (3rd), 130 (Gen. Div.) at paragraphs 10 to 12.
[8] We are not bound by the New Zealand case law cited and we do not find it helpful.
[9] Therefore, we conclude there was a valid offer outstanding on April 12, 2011 open for acceptance, which was duly accepted.
[10] In a motion to enforce a settlement, however, the Court has a discretion to refuse to enforce. In exercising that discretion in this case, we must take into account the best interests of the child. In our view, the enforcement of the parties’ settlement is in accordance with the paramount purpose of the Child and Family Services Act, which is to promote the best interests of the child (see s. 1). This child is in need of permanency planning and stability without further delay, given her tragic circumstances. The result is also consistent with the appellant’s declared concern that the child remain in Canada based on the undertaking given by the CAS when accepting the offer.
[11] Therefore, the motion is granted, and the appellant is ordered to withdraw his appeal and the CAS is bound by their undertaking to place the child for adoption in Canada.
SWINTON J.
J. WILSON J.
LINHARES de SOUSA J.
Date of Reasons for Judgment: May 10, 2011
Date of Release: May 12, 2011
CITATION: T.G. v. Children’s Aid Society of Ottawa, 2011 ONSC 2942
DIVISIONAL COURT FILE NO.: DV-10-1700
DATE: 2011/05/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, SWINTON and LINHARES de SOUSA JJ.
BETWEEN:
T.G. Applicant in Appeal (Respondent)
– and –
THE CHILDREN’S AID SOCIETY OF OTTAWA Respondent in Appeal (Applicant)
ORAL REASONS FOR JUDGMENT
Swinton J.
Date of Reasons for Judgment: May 10, 2011
Date of Release: May 12, 2011