The Children’s Aid Society of Ottawa v. A.C., 2016 ONSC 3111

CITATION: The Children’s Aid Society of Ottawa v. A.C., 2016 ONSC 3111

DIVISIONAL COURT FILE NO.: 15-DC-2159 DATE: 20160511

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Dambrot, C. Horkins, and Arrell JJ.

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA Respondent

– and –

A.C., S.I. and R.M. Appellants

Cheryl Hess, for the Respondent Glenn Bogue, for the Appellants

HEARD at Ottawa: April 25, 2016

The Court

overview

1On October 20, 2015, after a lengthy trial, Justice Shelston ordered pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”), that three native children B.I., H.M.C. and Baby I (“the children”) be made Crown wards without access for the purpose of adoption. The parents appealed.

2The Children’s Aid Society of Ottawa (“the Society”) brings a motion to dismiss this appeal for delay.

3The appellant R.M. is the father of the children. In 1993, R.M. married B.M. They could not have children and, as a result, they entered into surrogacy agreements with the appellants S.I. and A.C.

4From 2004 to 2011, the father and S.I. had five children and the father and A.C. had two children. In 2011, the Calgary and Area Child and Family Services Authority apprehended all seven children. On March 5, 2013, after a trial, the Provincial Court of Alberta made an order for Permanent Guardianship of the seven children, with no access. The matter was appealed and the appeal was dismissed.

5During this trial in Alberta, B.I. was born. This child is the eldest of the three children involved in this appeal. S.I. is the mother. After the birth, R.M. immediately left Alberta with B.I to an unknown location. A warrant was issued to apprehend B.I. In July 2013, R.M., S.I, A.C., B.M. and B.I. were found in Ottawa. On July 26, 2013, the Society apprehended B.I.

6In 2013 H.M.C. was born. This child remained with her mother, A.C., under a supervision order until the Society apprehended the child on March 10, 2014.

7In 2015, Baby I was born. S.I is the mother. The Society apprehended Baby I after birth at the hospital.

8On November 18, 2015, the appellants, A.C., S.I. and R.M. (“the parents”) filed a notice of appeal and a certificate respecting evidence. The parents certified that “all evidence” was required for the appeal.

9The parents have not ordered the transcripts of the evidence as they are required to do pursuant to the Family Law Rules, O. Reg. 114/99. As a result, the Society brought a motion to dismiss the appeal for delay. The Court granted the motion with reasons to follow. The Society’s request for costs was reserved. These are the Court’s reasons and our decision on costs.

legal framework

10The parents appeal an order that was made under the CFSA. The relevant time limits are set out in the Family Law Rules. These time limits recognize the importance of providing the children with certainty in a timely fashion. The relevant rules are summarized as follows:

1. The appellant shall perfect the appeal within 30 days after receiving notice that the evidence has been transcribed (rule 38(2)2). This 30 day period is unique to a child protection appeal. For all other appeals requiring transcripts, the 60 day time period applies under rule 61.09(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

2. When a transcript of evidence is required, the appellant “shall, within 30 days after filing the notice of appeal, file proof that the transcript has been ordered” (rule 38(12)).

3. The appellant’s appeal record and factum shall be served on the respondent and any other person entitled to be heard in the appeal and filed within 30 days from the date of receiving notice that evidence has been transcribed (rule 38(22)1).

4. An appeal under the CFSA shall be heard within 60 days after the appellant’s factum and appeal record are filed (rule 38(24)).

5. Rule 38(30) deals with a motion for dismissal for delay. If the appellant “has not, (a) filed proof that a transcript of evidence was ordered under subrule (12); and (b) served and filed the appeal record and factum within the timelines set out in subrule (21) or (22) or such longer time as may have been ordered by the court, the respondent may file a motion … to have the appeal dismissed for delay.”

11On a motion to dismiss an appeal from a child protection order, the court should consider the following factors (see Paulsson v. Cooper, 2010 ONCA 21; Children's Aid Society of Toronto v. L.T., 2016 ONCA 146):

(1) Did the appellant have an intention to appeal within the time for bringing an appeal?

(2) The length of delay and the explanation for the delay, if any.

(3) The prejudice, if any, to the respondent.

(4) The justice of the case (this requires a consideration of the merits of the appeal).

(5) The effect of the delay on the best interests of the children.

POsitions of the pArties

12The Society states that the parents have known since November 18, 2015, that they were required to obtain the transcripts for the appeal. They knew in December that Legal Aid would not pay for the transcripts and that they and/or their counsel would be required to incur this expense and seek reimbursement from Legal Aid. Instead of addressing the issue of the transcripts and perfecting this appeal, the parents commenced numerous other court proceedings. As a result, they failed to perfect the appeal.

13The two eldest children have been in care for most of their lives. Baby I has been in care since birth. More than six months have passed since Justice Shelston released his decision. The delay has interfered with the Society’s ability to place the children with adoptive parents that have been identified. Instead of stability and permanency, the children are in legal limbo. Their best interests require that this appeal be dismissed.

14The parents filed no material in response to the Society’s notice of motion seeking a dismissal of the appeal because of delay.

15At the start of the hearing, Mr. Bogue submitted that the court has no jurisdiction to hear any matters concerning the children. As a result, he argued that the Society’s motion could not proceed. No material was filed to support this argument. Based on Mr. Bogue’s submissions, his position can be summarized as follows. The children are native (the trial judge recognized and dealt with this fact). Despite the extensive evidence at trial that the father and the children are Mohawk, Mr. Bogue now argues that they are Metis. Either way, he states that this court has no jurisdiction to proceed unless three aboriginal justices, with authority to hear and decide all matters relating to the children, are added to the existing panel of judges. This argument was the focus of the habeas corpus application that was filed in this court. The application was withdrawn when the parties and counsel attended before Justice Linhares de Sousa on March 7, 2016.

16Mr. Bogue raised the same jurisdictional argument before Justice Simmons in the Court of Appeal on April 1, 2016. He relied on Delgamuukw v. British Columbia, 1997 302 (SCC), [1997] 3 S.C.R. 1010 at para. 148, as he did before this court. Justice Simmons reminded Mr. Bogue that he had withdrawn the habeas corpus application. The court rejected the argument that there is no jurisdiction to make orders concerning the children unless the court includes an aboriginal judge.

17In these circumstances, we rejected Mr. Bogue’s submissions and proceeded to hear the Society’s motion.

THe Procedural history

18The nature and extent of the delay in this case is best appreciated with a review of the procedural history.

19The procedural history is detailed in the Society’s supporting affidavit. The parents filed no responding material. The review of this history demonstrates that while the parents have taken numerous steps in various courts, this has not advanced the perfection of their appeal.

20The 16 day trial commenced in May 2015. The parents attended the trial. Judgment was issued on October 20, 2015.

21The parents appealed on time. They served their notice of appeal and certificate respecting evidence on November 18, 2015. The Society served their certificate respecting evidence on December 2, 2015.

22On December 17, 2015, the parents served and filed a notice of motion seeking an order extending the time to obtain the transcripts and perfect the appeal. The motion was set for February 5, 2016. Their supporting affidavit explained that the parents had called Legal Aid a number of times requesting funding for the transcripts. They acknowledged that Legal Aid Ontario would not provide an advancement to cover the cost of the transcripts and would “only reimburse and possibly only partially cover transcript costs”. They had spoken to several counsel who advised that the parents had to pay for the transcripts out of of their own pockets and be reimbursed later by Legal Aid. S.I. had a legal aid certificate, but could not find a lawyer who was willing to represent her.

23On February 5, 2016, the parents attended court. They advised Ms. Hess, the Society’s counsel, that they had just retained Glenn Bogue and, as a result, required an adjournment of their motion. Before consenting to the adjournment, Ms. Hess spoke to Mr. Bogue by telephone. She agreed to adjourn the motion to February 12, 2016, a date that was available for Mr. Bogue.

24Before leaving court, S.I. provided Ms. Hess with a statement of claim in the Federal Court seeking 2 quadrillion dollars against various individuals. S.I. told Ms. Hess that the transcripts had been ordered and she gave Ms. Hess a copy of an order form for transcripts.

25Mr. Bogue told Ms. Hess that he was bringing a Federal Court application on February 10, 2016, on an ex-parte basis. He also told Ms. Hess that he would be proceeding with an application for a writ of habeas corpus in both the Federal and Provincial Courts, and if unsuccessful there, he would be proceeding to the International Court in New York City and as well The Hague.

26On February 8, 2016, Ms. Hess advised Mr. Bogue that her retainer with the Society was limited to the appeal in Divisional Court and that the parents had to serve the Society directly with the Federal Court application.

27Mr. Bogue attempted to serve Ms. Hess with an application for a writ of habeas corpus on February 10, 2016. Once again, he was told to serve the Society directly and this was done. The date for the writ of habeas corpus application was February 12, 2016, the day that the parents’ motion was scheduled to be heard.

28On February 12, 2016, the parents’ motion returned before Mr. Justice Kurke. The writ of habeas corpus application was adjourned to February 17, 2016, to give the Society time to respond. The court also adjourned the parents’ motion to February 17, 2016, to “allow counsel to devise a timeline for transcripts and appeal”.

29During this court attendance, Mr. Bogue was directed to attend at the Court Reporter's office to deal with the timing of the transcript order. Instead of doing so, Mr. Bogue returned to court and advised that he had attempted to obtain a date for a trial/hearing of the writ of habeas corpus application. He did not speak to the court reporter. Ms. Hess questioned Mr. Bogue about the status of the transcripts. He advised her that he had filled out the order form for the transcripts, but he had not yet ordered them. Ms. Hess told Mr. Bogue that there were a number of errors in the order form. The court file number and court name were incorrect and the dates of the trial were not provided.

30Later the same day, Mr. Bogue sent a brief cryptic email to Ms. Hess and the court reporter, Anne Payne. The subject line of the email is “Certificate of Transcript changes”. He states “Please call me asap”. The email then sets out the court file numbers, the start date of the trial and the name of the trial judge. Finally, the email states “Ordered this date Asap date of delivery”.

31On February 14, 2016, the court reporter, Ms. Payne, emailed Mr. Bogue a copy of a revised order form. She asked Mr. Bogue to review the form and get back to her with any changes. Mr. Bogue emailed Ms. Hess a copy of the form on February 15, 2016, and asked her to “Please review for submission Wednesday.”

32On February 16, 2016, Ms. Hess e-mailed Ms. Payne and copied Mr. Bogue. In this email, she explained that she acted for the respondent Society on the appeal and that Mr. Bogue had provided her with a copy of his order form for transcripts. She alerted the reporter to errors and information that was missing in the order form. As well, she asked why the order form set May 16, 2016 as a requisition date for the transcripts. Ms. Hess explained that the appeal was time sensitive and asked how quickly the transcripts could be prepared without being expedited. Finally, she asked the reporter to provide her with confirmation that the order had been placed, as well as the certificate that the transcripts had been ordered.

33The reporter did not reply to Ms. Hess’s email. As a result, on February 20, 2016, Ms. Hess emailed Mr. Bogue and asked him to confirm the status of the transcripts. Mr. Bogue called Ms. Hess and told her that the transcripts had been ordered. Ms. Hess sent Mr. Bogue a further email that day asking him to provide proof of the order and the time frame for delivery. She also asked if the parents were still proceeding with their motion that was adjourned to February 17, 2016. She did not receive a reply.

34Ms. Hess made several unsuccessful attempts to speak to the court reporter. On February 21, 2016, the reporter sent Ms. Hess an e-mail asking her to direct all questions about the transcripts to Mr. Bogue.

35On February 23, 2016, Ms. Hess and Mr. Santini (counsel for the Society on the writ of habeas corpus application) met with Mr. Bogue. During the meeting, Mr. Bogue advised Ms. Hess that to order the transcripts he was required to do an "appearance in court". Later that day, he served the Society with a notice of change of solicitor, confirming that the parents had retained him for the appeal.

36On February 16, 2016, Mr. Bogue sent a letter to Justices McNamara and Wright and to the Minister of Justice, requesting a five justice panel for the application for writ of habeas corpus. The court directed that the parents’ motion to extend the appeal timelines and the habeas corpus application would be heard on March 7, 2016, before Justice Linhares de Sousa.

37On February 29, 2016, Mr. Bogue served a summons to witness on the trial judge, Justice Shelston, and Dr. David McLean, who performed the Parenting Capacity Assessment of the family pursuant to a court order. On March 4, 2016, Mr. Justice Beaudoin quashed the summons.

38On March 7, 2016, the parents’ motion to extend the appeal timelines and the habeas corpus application came before Justice Linhares de Sousa. During the hearing, Mr. Bogue, with the consent of his clients, withdrew the habeas corpus application. The court fixed April 25, 2016, for the hearing of this appeal. Counsel agreed to this date. The court set deadlines for both parties to have their records and factums served and the appeal perfected. Mr. Bogue advised the court that he had ordered the transcripts and had requested authorization and/or payment from Legal Aid to pay the deposit on the transcripts. The court gave Mr. Bogue until April 11, 2016, to file his materials. When the court asked him if this was a reasonable deadline, he replied “We can do it”.

39After court finished on March 7, 2016, Mr. Bogue served all counsel involved with a statement of claim requesting 60 million dollars of damages, and claiming that the counsel involved on the file and the Society had committed "crimes against humanity" in relation to the children. Justices Shelston, Kane and Linhares de Sousa were also named as defendants. This action was dismissed under Rule 2.1.01(1) on the basis that it is frivolous, vexatious and an abuse of process (see A.C. et al v. CAS Ottawa, 2016 ONSC 2787).

40During the remainder of March 2016, the parents served a series of motions relating to the orders of Justice Beaudoin and Justice Linhares de Sousa. On March 8, 2016, the parents served a notice of appeal seeking leave to appeal the orders of Justice Beaudoin and Justice Linhares de Sousa to the Divisional Court. On March 17, 2016, the parents served a notice of motion for leave to appeal the orders of Justice Linhares de Sousa to Ontario Court of Appeal. On March 23, 2016, the parents served two motions: an amended notice of motion for leave to appeal the orders of Justice Linhares de Sousa to the Ontario Court of Appeal and a “Notice of Motion for Urgent Motion for Leave to Appeal” (‘the urgent motion”), requesting a hearing before a single Judge of the Ontario Court of Appeal and requesting a motion for leave to be heard on April 5, 2016.

41On March 25, 2016, Ms. Hess sent Mr. Bogue an email requesting that he confirm the status of the transcripts. Mr. Bogue did not reply.

42On April 1, 2016, the parents’ urgent motion came before Justice Simmons in the Court of Appeal. Justice Simmons held that none of the matters that the parents were trying to appeal were properly before the Court of Appeal. The route for appealing the orders of Justice Linhares de Sousa was to a panel of three judges of the Divisional Court. Regarding Justice Beaudoin’s orders, Justice Simmons stated that since the parents had withdrawn the habeas corpus application she failed to see how the order could be reviewed. In any event such appeal, if still available, was to the Divisional Court. During his submissions, Mr. Bogue advised the court that he had not yet paid the deposit for the transcripts. He requested that the court require Legal Aid to pay for the transcripts. This of course was not ordered.

43On April 4, 2016, Mr. Bogue served an application to the Supreme Court of Canada for habeas corpus.

44On April 5, 2016, Mr. Bogue served the Society with two documents: a copy of his letter to Justice McNamara dated April 5, 2016, and a notice of appeal. In this notice of appeal the parents seek to appeal the order of Justice Linhares de Sousa dated March 7, 2016, “to the three justice panel of the Divisional Court”. Mr. Bogue told Ms. Hess that he intended to bring this new notice of appeal before the Divisional Court Panel on April 25, 2016. This notice of appeal was not before this court on April 25, 2016.

45The letter to Justice McNamara purports to provide an “update” on the “progress towards Justice on this appeal” (referring to the appeal of Justice Shelston’s order). Mr. Bogue states in the letter that he ordered the transcripts on February 5, 2016, but has encountered difficulty with payment of the transcripts with Legal Aid.

46The parents failed to perfect the appeal as ordered. As a result, the Society served Mr. Bogue on April 12, 2016, with their motion record and factum seeking a dismissal of the parents’ appeal for delay. The parents filed no responding material to this motion.

the judgment under appeal

47The trial judge heard extensive evidence, including expert evidence. The trial judge carefully considered the best interests test in s. 37(3) of the CFSA. He provided detailed reasons for his decision that the children are in need of protection. As a result, he ordered that they be made Crown wards, without access, for the purpose of adoption. The following is a summary of the reasons.

48The Society was concerned about the father’s mental health and the degree of control that he had over the mothers.

49The father was born on a Mohawk reserve and describes himself as a “Medicine Man of the ancient tradition”. He suffered a brain injury as a result of being shot in the head. The father told the Society that he did not want the mothers to apply for Child Tax Benefits for the children. He said that the Society’s apprehension of the children was a form of “cultural genocide” that started because of his opposition to the pipeline. He explained that the mothers were thin because of their diet and believed that obesity was a sign of mental illness.

50The mothers do not believe that the father has any mental health issues. They are heavily influenced by him and adhere to his control. The mothers believe, as does the father, that he is a healer, knows the cure for AIDS, has brought people back from the dead, is on the RCMP’s hit list and was poisoned by the Salvation Army.

51At the request of the Society, Dr. McLean conducted a clinical assessment of the parents. Based on this assessment the trial judge found that the father has serious mental health issues. At para. 247 of the reasons the trial judge states:

Based on the opinions expressed by Dr. McLean and R.M.'s presentation as a witness, I find that R.M. is delusional and paranoid. His evidence [was] contradictory and evasive. I find that his testimony confirms that he will not abide by any terms on a Supervision Order. Further, I find that as the mothers accept all his teachings and follow his lead on all issues, by extension neither will the mothers follow the terms of any Supervision Order.

52Dr. McLean concluded that the father was brainwashing the mothers. The doctor reported that the mothers are “very much under his influence” and believe the information that the father provides to them. The trial judge found that the father’s control over the mothers is so complete that they “would follow his lead even if it were not in the children’s best interests.” The trial judge summarized this point in para. 305 of the reasons as follows:

Despite losing seven children in Calgary and potentially three more in Ottawa, the mothers have still not distanced themselves from the father as recommended by the Society. In fact they have done the exact opposite. They have fully supported the father's actions and have moved to the reserve in houses rented by the father. In S.I.'s case, the father's wife has moved in with her.

53The evidence was clear that the parents have been living a transient life. The evidence demonstrated that they are unable to provide for the children’s physical, mental and emotional needs. The parents could not provide the children with medical and dental care or even the basic necessities of life. At the time of trial, they had no source of income. The father and S.I. lacked proper identification and this affected their ability to obtain healthcare and provide financially for the children. For a period of time in 2014, A.C. received Ontario works. A.C. is an American citizen who has remained in Canada illegally. After the trial, A.C. was deported to the United States where she remains today.

54Initially, the Mohawks of the Bay of Quinte were involved. They filed an Answer and a Plan of Care. In May 2015, they withdrew both and did not present a plan of care for the children at trial. As a result, placement of the children on this reserve was not an option. The Society was unable to identify any family members who might be involved in a satisfactory plan of care.

55The parents submitted a plan of care in which they proposed that they would live in adjoining houses on a reserve. The trial judge found that this plan was not in the best interests of the children. The views of the children could not be ascertained given their ages.

56The trial judge found that the ongoing delay in providing the children with a stable and permanent home was not in their best interests. Ongoing access, even if supervised, was rejected because it was not in the best interests of the children. Based on the totality of the evidence, the trial judge found “that each of the children may suffer harm if returned to their respective parents.”

57The final order making the children Crown wards for the purpose of adoption was made without access to the parents. The trial judge noted that “[o]nce a disposition of Crown wardship is made, the CFSA provides that there is a presumption against access.” Pursuant to s. 59 (2.1) of the CFSA, the onus to rebut the presumption rests on the parents and they must satisfy the court that (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child's future opportunities for adoption. The trial judge found that the parents failed to discharge the onus.

analysis

58Following the direction in Paulsson v. Cooper, supra; Children's Aid Society of Toronto v. L.T., supra, the analysis demonstrates that the Society’s motion to dismiss the parents’ appeal for delay must be granted.

59The parents demonstrated their intention to appeal when they served their notice of appeal within time on November 18, 2015. They identified on that date that they required all of the transcripts for the appeal.

60The parents have known since December 2015 that Legal Aid will not pay for the transcripts. There is no evidence that they have the money to order the transcripts. The parents were unemployed at the time of trial and there is no evidence that they have since found employment.

61Since filing the notice of appeal, the parents have focused their time and attention on legal proceedings that have done nothing to assist them in perfecting this appeal. Through counsel, they have represented many times that the transcripts have been ordered. When the Society repeatedly asked for proof of the transcript order, its question was either ignored or the answer provided was vague. While Mr. Bogue filled out an order form, it is obvious that the request for the transcripts went no further because the parents do not have the money to pay the reporter. As a result, it was misleading to state that the transcripts were ordered.

62Justice Linhares de Sousa granted the parents an extension of time to perfect their appeal. When asked if the April 11, 2016 deadline was reasonable, Mr. Bogue replied to the court “We can do it”. However the deadline was not met.

63More than five months have passed since the notice of appeal was filed. There is no prospect of the transcripts being ordered. The parents have not asked for a further extension of the time to perfect their appeal. They offer no plan for how they intend to secure the funds to order the transcripts. As a result, if the appeal is not dismissed, it will continue to languish as an unperfected appeal, while leaving the children in limbo with no stability and permanency in their lives.

64The delay is clearly prejudicial to the children. The two eldest have been in care for most of their lives and Baby I has been in care since birth. B.I. has been in care for almost three years, H.M.C. has been in care for over two years and Baby I has been in care for more than a year. They have all been in care well beyond the statutory time limit in s. 70 of the CFSA.

65The justice of the case requires the court to look at the merits of the appeal. The parents filed no responding material on this motion. The court has the thorough reasons of the trial judge. These reasons review and consider the extensive compelling evidence that was before the judge. The parents did not present a viable plan of care. There was no alternative to the Crown wardship order that was in the best interests of the children. The trial judge applied the correct test and made a decision that was supported by the evidence. In these circumstances, we see no basis for concluding that there is any merit to this appeal.

66The best interests of the children require this appeal to be dismissed. To do otherwise will place the children’s lives on hold, when there is no reason to expect that the parents will perfect their appeal. The best interests of the children can only be served in this case by dismissing the appeal. The children deserve a permanent and stable home where they will be secure as members of a family. This fundamental right of every child can only be achieved if the appeal is dismissed.

67For all of the above reasons, the appeal is dismissed.

Costs

68The Society seeks costs in the amount of $26,903.58, inclusive of fees, disbursements and HST, for the motion to dismiss for delay and for the work done on the appeal. Since the parents never perfected the appeal, the Society’s responding work was limited.

69The Society concedes that it does not typically seek costs on a child protection appeal. However, in this case the Society states that it incurred significant expense because of the manner in which Mr. Bogue approached the appeal. For this reason they ask the court to fix their costs at $26,903.58 and order that the parents pay 25% and Mr. Bogue pay 75%. The parents ask that the court make no order as to costs.

70We acknowledge that the Society has been put to considerable expense dealing with the numerous unsuccessful motions and habeas corpus applications brought by the parents. These motions and applications are not before us and there is no indication in the record that the costs of the various motions and applications were reserved to the hearing of the appeal.

71The Society was not able to provide the court with a decision where the court has ordered costs against a parent on a child protection appeal that is dismissed for delay.

72In the context of a child protection appeal, there is nothing unique about this motion to dismiss for delay that would cause us to depart from the usual no costs position that the Society takes.

73In our view, it is fair and reasonable that no costs be ordered. Since no costs are awarded it is not necessary for us to address the request that Mr. Bogue pay a portion of the costs.

74In summary, the Society’s motion is granted and the appeal is dismissed for delay.

___________________________ Dambrot J.

C. Horkins J.

Arrell J.