Court File and Parties

CITATION: Children’s Aid Society of Ottawa v. L.F., 2016 ONSC 2487

COURT FILE NO.: 16-DC-2170

DATE: 2016-04-12

SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT- ONTARIO

RE: CHILDREN’S AID SOCIETY OF OTTAWA, Respondent.

AND:

L.F. and L.F., Appellants

BEFORE: Justice Timothy Ray

COUNSEL: Marguerite Lewis, Counsel, for the Respondent

Carrie-Ann Bourassa, Counsel, for the Appellants

HEARD: April 12, 2016

Endorsement

[1] The respondent moves to dismiss this appeal from the decision of Mackinnon, J dated December 3, 2015 on the ground of delay, while the appellants have a cross-motion to extend the time to order the transcripts and to perfect their appeal.

[2] A Notice of Appeal was filed December 31, 2015 within the time for an appeal. However the appellants were delayed in obtaining funding to assist them in ordering the transcripts and to prepare the appeal. That approval was received April 8, 2016. After filing their Notice of Appeal, the appellants made their application for funding. It was not until early February that they received approval for the preparation of an opinion to OLA. That opinion was forwarded February 18, 2016. The appellants swear that they called OLA daily because they were aware of the consequences of the delay. I am satisfied that the delay was not caused by the appellants, and under the circumstances was not undue. It is an important part of the history of this CFSA matter that the first trial was heard by Mackinnon, J in August and September 2013 for 6 days. She ordered Crown wardship of the two children then ages 2 and 3 with access to the appellants. They appealed to the Divisional Court who ordered Mackinnon, J. to reconsider that part of her order concerning s 37(4) CFSA. It is this second trial that for the first time was faced with a charter argument by the appellants concerning the constitutionality of “Indian” and “native person” in the CFSA in addition to her dealing with s 37 (4) CFSA, that is being appealed.

[3] The respondent contends that the appeal has no chance of success in that the children were never found to be aboriginal yet the trial judge considered their aboriginal heritage in making her order; and that effectively the charter argument is irrelevant to the trial judge’s ultimate disposition.

[4] The factors to be considered are laid out in Paulsson v Cooper, 2010 ONSC 21 (Weiler, J.A.). While there is always prejudice by delay where children are involved, I am mindful that it is a 3 month delay in ordering the transcripts. I am concerned also by the further delay from this proposed second appeal.

[5] I have serious reservations and doubts about the success of the proposed appeal. The entire appeal was canvassed by the Divisional Court. It sent back for reconsideration the issue concerning s 37(4) of the CFSA. That was the only live remaining issue.

[6] The trial judge was very clear that in the first trial there was no evidence the children had been brought within “Indian or native person”.(paragraph 9)

[7] Importantly, she noted as follows after receipt of the Divisional Court order, and in the course of the new trial:

[21] When the trial did resume in October 2015, it was common ground that no party and neither child fell within the applicable definition of “Indian” or “native person”. The evidence was that the maternal grandfather and, through him the mother and her children, are of Aboriginal ancestry, of Algonquin descent and are non-status Indians.

[22] What should now be apparent is that an appeal was allowed for the purpose of a reconsideration of the applicability of a section of the CFSA, now admitted not to be applicable to these children – unless through the success of a constitutional challenge raised for the first time long after the initial trial and the appeal. The intervening time and events have provided the mother the opportunity to develop not one but two alternate plans to have L.L. and J.L. placed in her care. Her parents, who were the successful appellants, are, as they had done in 2013, supporting the mother’s plan and putting themselves forward as an alternative plan for the children.

[23] Two small children who came into care at ages eleven months and twenty-seven months remain in legal limbo, thirty-four months later.

[8] The children are now 4 and 5. The legal limbo continues.

[9] I am satisfied that the constitutional challenge raised by the appellants is irrelevant to the issues in this case. All other matters had been thoroughly canvassed by the Divisional Court. The appellants are not entitled to an appeal based on issues beyond the s 37(4) issue; and that was disposed by the trial judge. It appears that at the time counsel were all in agreement at the trial that s 37(4) CFSA had no application.

[10] The respondent’s motion is granted and the appellants’ motion is dismissed. The appeal is dismissed for delay.

Ray, J

Date: April 12, 2016