M.P. v. Kawartha-Haliburton Children’s Aid Society, 2015 ONSC 2014

CITATION: M.P. v. Kawartha-Haliburton Children’s Aid Society, 2015 ONSC 2014

DIVISIONAL COURT FILE NO.: DC-130582/00

DATE: 20150330

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: M.P., Respondent/Appellant in Appeal

AND:

Kawartha-Haliburton Children’s Aid Society Applicant/Respondent in Appeal

and

The Office of the Children’s Lawyer, Respondent/Respondent in Appeal

and

J.J., Respondent/Respondent in Appeal

BEFORE: D.L. Corbett, Harvison Young, A. O’Marra JJ.

COUNSEL: M.P., self-represented

J. Tigert, for the CAS

J. Long, for the OCL

J.J., self-represented

HEARD at Oshawa and Toronto: March 5 and 26, 2015

ENDORSEMENT

The Court:

[1] The appellant, M.P., appeals a consent order of Justice Gunsolus dated June 17, 2013 which made her daughter, P.P., a Ward of the Crown without access for the purpose of adoption. At a motion made by the CAS to dismiss this appeal on January 29, 2015, Justice Edwards dismissed the CAS’s motion and granted leave for this appeal to proceed before the Divisional Court. The appellant seeks an order setting aside the Crown Wardship order of June 17, 2013 and ordering a trial on an expedited basis. In her materials and in oral argument, the appellant took the position that this court has a sufficient record to order return of P.P. to her without sending the case back for an expedited trial.

[2] The CAS, the OCL (on behalf of P.P.), and J.J. (P.P.’s biological father) all oppose the appeal.

[3] The core of the appellant’s submission is that she did not in fact agree, and would never have agreed, to give up her child for adoption. She submits that she understood that she was consenting to the withdrawal by the CAS of the application to have P.P. declared a child in need of protection and a Crown ward for the purposes of adoption. M.P. submits now that she relied upon the representations of her then counsel, Mr. Coon, and believed she was signing an agreement that the CAS was withdrawing its application. Her position is that she understood P.P. was going to be placed temporarily with M.P.’s aunt and uncle to provide for integration over about 3 weeks and then returned to her care. She submits that she did not read the consent, trusting in Mr. Coon that the document she was signing was what he said it was. It is common ground that Mr. Coon encountered difficulties subsequently with the Law Society and is no longer in the jurisdiction.

[4] Section 55 of the Child and Family Services Act, R.S.O. 1990 requires that the court making such a consent order satisfy itself that the parent has consulted independent legal counsel, understands the nature and consequences of the consent, has capacity and gives the consent voluntarily. Although M.P. challenges the quality of the advice she received, there is no dispute that she consulted independent legal counsel; she had her own lawyer. The record indicates she had consulted, in fact, at least one other lawyer before Mr. Coon after receiving the s. 54 assessment. There is no suggestion in the record, or by any of the parties, that M.P. did not have capacity to consent. Her argument is not that she was coerced or induced, but rather that she had no idea she was agreeing to give up her daughter for adoption.

[5] Having carefully reviewed the lengthy record before the court and heard submissions of M.P., the CAS, the OCL, and J.J., we are not satisfied M.P. did not know she was signing a consent to adoption. Indeed, the record leads us to the opposite conclusion.

[6] To begin with, the consent itself is signed and initialed on both pages by M.P.. It is very brief, consisting of 2 paragraphs as follows:

1. The child [P.P.] born […] 2011 is found to be in need of protection pursuant to s. 37 (2)(b)(i) and (ii) and s. 37(2)(g) of the CFSA.

2. The child [P.P.] is made a Ward of the Crown and placed in the care of Kawartha-Haliburton Children’s Aid Society without access for the purpose of adoption.

[7] Appended to the consent is an undertaking given by CAS in which CAS agrees to consider any plans for the adoption of P.P. by the child’s extended family that are presented to the CAS in writing before July 3, 2013. The same undertaking provides for a “goodbye visit” between the mother and child.

[8] It is common ground that the s. 54 Parenting Capacity Assessment, which M.P. had seen a short time before June 17, 2013, had been “devastating” to M.P.’s claim that her daughter should be returned to her care.

[9] M.P. filed a Notice of Appeal (since amended) on July 13, 2013. That notice, personally prepared by M.P., contains 9 paragraphs of grounds which she says constitute reasons to set aside the consent order. These focus on challenges to the s. 54 assessment. Conspicuous by its absence is a claim that Mr. Coon told her, and\or that she believed, that she was agreeing to a complete withdrawal of the CAS application.

[10] We do note that the appellant did include an “Appendix B” to the Notice of Appeal which contains reference to alleged “misrepresentation” by Mr. Coon. Para 10 of Appendix B states as follows:

10. The respondent mother was given improper representation by counsel. In addition to misinforming her of the endorsed document she signed, Mr. Coon violated the solicitor\client privilege. While Mr. Coon was provided with contact information for [M.P.’s] parents and brother and sister in law, after a phone call was made to both parties, [M.P.] revoked her consent to Mr. Coon explicitly directing him not to call the above and not to disclose any private information. Mr. Coon ignored the direction and sent an email to M.P.’s parents and made telephone calls to M.P.’s brother and sister-in-law providing them with confidential information. […]

[11] This appendix makes it clear that M.P. addressed her mind to the conduct of Mr. Coon in the course of the June 17, 2013 proceeding. The “misrepresentation” to which she refers is his misconduct in violating, in her view, solicitor-client privilege. It defies common sense that she would have forgotten or overlooked the conduct she now ascribes to Mr. Coon before this court when she was specifically critical of other aspects of his conduct in the appendix. Quite simply, the July 13, 2013 Notice of Appeal contains no suggestion that she thought that what she was signing on July 17, 2013 would result in her daughter being returned to her.

[12] M.P. states that she went to court on June 17, 2013, thinking that the CAS was withdrawing the application for Crown Wardship. She pointed this court to a number of text messages from Mr. Coon in the few days before the hearing that she claims supports this claim. For example, Mr. Coon sent a text message that stated “in a couple of days you will no longer have CAS in your life”. She asks this court to infer that this supports her understanding that P.P. was going to be returned to her. The problem is that it is at least as supportive of the inference that the CAS would no longer have any reason to be involved after M.P. consented to Crown Wardship without access for the purpose of adoption. If the child had been returned to M.P., continued CAS involvement would have been inevitable. After adoption without access, there would have been no CAS involvement with M.P., and likely no CAS involvement with P.P. either. We find that these communications, read individually and collectively, do not lend support to M.P.’s claim that she believed, at the time, that the CAS was prepared to return P.P. to her care and withdraw the application.

[13] We also note that early in her submissions on March 25th, M.P. stated that when he came out of the courtroom on June 13, 2013, Mr. Coon was in a hurry to get her signature and get back to court with her consent. She insisted that he had not even given her the consent document with the result that she was unable to read it. Later in her submissions, however, she referred to passing the pages back to Mr. Coon after signing and initially them.

[14] We are satisfied that M.P. had the document in hand, had a chance to read it, and did in fact read it. It would not have taken her more than a few seconds to do so, this was terribly important to her, and as is amply reflected in the record, she was never shy about asserting herself with professionals in this case, whether they were acting on her behalf or in opposition to her.

[15] We do not accept M.P.’s submission that she did not understand the document . As noted above, the document is very brief and is initialled by M.P. on its operative page. Looking at the document, it is hard to imagine how she could have failed to notice the terms “child in need of protection” and “Crown Ward with no access for the purpose of adoption”. The language is simple, the handwriting is clear and legible, and there is nothing to suggest a withdrawal of the application. We note that M.P. is an intelligent and highly educated person. She holds a Masters Degree in English Literature. She has personally written and submitted extensive materials to this court which reflect significant facility with the written word. If she had read the document she would have understood it. And we are satisfied that she did read the document.

[16] In addition, although M.P. insists that she was expecting that the CAS was prepared to place P.P. temporarily with M.P.’s aunt and uncle (to allow for a three week integration period), there is no evidence in the record to indicate that the CAS was prepared to agree to anything short of the order that was granted making P.P. a Crown Ward with no access, or that CAS made any such representations to her. Indeed, given the content of the s. 54 assessment, it is difficult to see why the CAS would have agreed to anything else. The CAS was willing to, and did agree to, consider placing P.P. with extended family as the undertaking appended to the consent order indicates. In fact, the child has been living with her maternal uncle and aunt in Alberta since that time and they intend to adopt P.P.

[17] According to the CAS, this undertaking was given in response to M.P.’s concern that her daughter not be placed with strangers, which is understandable. We recognize that it does appear M.P. hoped that P.P. would be placed with the aunt and uncle in Ottawa and not with M.P.’s her brother and sister-in-law in Alberta.

[18] Finally, M.P. also refers to various text messages and emails in the record during the period following the hearing that indicate that she was distressed. While she asks us to infer from these emails that was distressed because she had not intended to consent to Crown Wardship, we do not find that they support the inference she asks us to draw. Rather, they are more consistent with M.P.’s understandable sadness and regret following the loss of her child. This, however, does not vitiate the consent she gave.

[19] Finally, considerable time was spent on issues of M.P.’s credibility in a general sense. It was appropriate for the respondents to raise this issue, given M.P.’s past assertions of facts that turned out not to be true. We agree that M.P. has a history of asserting false claims, especially when she is upset. She responded in argument that, although she may have made mistakes, she did not tell deliberate untruths. We have concluded that we do not need to resolve these points to decide this appeal: the evidence before us in respect to the consent itself is sufficient for us to conclude that M.P. is not correct in her assertions that she did not understand what she was consenting to.

[20] All of this should be placed in context. The CAS had an overwhelming case before the court on June 17, 2013. Although M.P. intended to ask for an adjournment to assemble an answer to this overwhelming case, the Crown Wardship application was long overdue for a decision on the merits, and an adjournment could well have been denied. And although M.P. has explanations for delays since June 17, 2013, the fact remains that another 21 months has passed since the consent order was made. On March 5th, the original return date of this appeal, M.P. asked for an adjournment, a request we denied because of the need to conclude this matter expeditiously. It has now been more than 3.5 years since P.P. first came into the care of the CAS, and long past time that these issues should have been decided on a final basis. We do not decide this appeal on the basis of delay or the apparent strength of the CAS’s case – we are satisfied that the consent was valid, and on that basis alone dismiss the appeal. However in the broader context we encourage the CAS to finalize the proposed adoption of P.P., to bring this matter to a conclusion once and for all as soon as reasonably possible.

[21] We understand how important this is to M.P., and how deeply and sincerely she feels her personal losses here. However we wish to be clear in our decision: on the record before us the consent order was in P.P.’s best interests and remains so today. The consent is valid; the order is valid, and is a final disposition of the case. For all of these reasons, the appeal is dismissed. In our view, this is not a case for costs.

D.L. Corbett J.

Harvison Young J.

A. O’Marra J.

Date: March 30, 2015