Court File and Parties

CITATION: CAS Ottawa v. L.F.(1) and L.F.(2), 2016 ONSC 4044

DIVISONAL COURT FILE NO.: 16-DV-2170 Ottawa

DATE: 2016/07/04

SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT – ONTARIO

RE: Children’s Aid Society of Ottawa, Applicant/Respondent on Appeal

AND:

L. F. (1) and L. F. (2), Respondents/Appellants

BEFORE: Aston, Taylor and Thorburn JJ.

COUNSEL: Marguerite Lewis, for the applicant

Carrie-Anne Bourassa, for the respondents

HEARD: June 16, 2016

ENDORSEMENT

Aston J.

[1] The grandparents bring this motion to set aside the April 12, 2016 Order of Ray J., who allowed a motion to dismiss their appeal for delay while sitting as a single judge of the Divisional Court (2016 ONSC 2487).

[2] The two boys now four and five years of age have been in foster care since they were apprehended from the grandparents in February 2013. Later that year, after a lengthy trial, an order was made for Crown wardship, subject to supervised access for the grandparents. This order was appealed and a Divisional Court panel concluded, based upon an apparent misapprehension, that the “Canadian Indian ancestry” of the boys had been overlooked in the court below. It had not been overlooked. The Divisional Court panel remitted the case to the trial judge “for reconsideration of whether s. 37(4) of the Child and Family Services Act applied to the children”. That section reads as follows:

Where a person is directed in this part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity”.

[3] Quite apart from s. 37(4), a finding that a child has native status within the meaning of the Child and Family Services Act could potentially affect the disposition under s. 57 of the CFSA because of the difference in wording between s 57(4) and 57(5). Section 57(4) provides that if it is “necessary to remove a child” from the person who had the child in his or her care before the apprehension, the court “shall consider whether it is possible” to place the child with a relative, neighbour or other member of the child’s community or extended family” before making an order for crown wardship. Section 57(5) of the Act provides “where the child…is an Indian or native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a) a member of the child’s extended family, b) a member of the child’s Band or native community, or c) another Indian or native family”.

[4] On the reconsideration, the original trial judge determined “there was no evidence at trial capable of bringing these children within the meaning of ‘Indian or native person’ as defined in the CFSA” (2015 ONSC 7580, para. 9). Indeed, on the reconsideration the grandparents themselves conceded that these children do not fit the statutory definition. However, in June 2015 (months after the Divisional Court decision) they delivered a Notice of Constitutional Question challenging the validity of the CFSA definitions under s. 35(2) of the Constitution Act, 1982, and s. 15(1) of the Charter.

[5] It was perhaps open to the trial judge to find that the constitutional challenge exceeded the boundaries of the reconsideration ordered by the Divisional Court. The constitutional challenge was not raised as an issue before the Divisional Court, nor at the trial in October 2013. However, the trial judge instead opted to treat the matter as a fresh determination of the appropriate order, with new pleadings and plans of care. She conducted a new trial on updated evidence, which also included a consideration and determination of a constitutional and Charter challenge of the grandparents.

[6] In the end, the trial judge determined that the constitutional challenge did not change the status of the children under the Child and Family Services Act. She made an order for Crown wardship, with access in favour of both the grandparents and the mother of the children. The grandparents are now appealing this decision of December 2015. Their Notice of Appeal was served in a timely fashion, but there was some delay in ordering transcripts and retaining counsel because of their financial circumstances. They were finally able to secure Legal Aid funding April 8, 2016. On the same day, they ordered the transcripts and on the following day retained their present counsel. In the meantime, the Children’s Aid Society had delivered its motion to dismiss the appeal for delay. That motion was heard April 12, 2016.

[7] The motion judge was satisfied that the delay in the appeal was not caused by the appellants and under the circumstances had been reasonably explained. However, he granted the Society’s motion on the basis that he had “serious reservations and doubts about the success of the proposed appeal”. The appeal process that began in 2013 remains unresolved and the children have been in legal limbo for years, without the possibility of permanency planning.

[8] The motion judge heard the matter on April 12, 2016 as a single judge of the Divisional Court. Under s. 21(5) of the Courts of Justice Act, “a panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion”.

[9] The standard of review on a hearing under s. 21(5) is not well settled. In Marsden v. The Queen, 2012 ONSC 6118 (Div. Ct.) para. 2 the motion panel held that “a panel will not interfere with a decision of the motions judge unless he or she has made an error of law or a palpable and overriding error of fact”. On the other hand, it is arguable that no standard of review analysis is required under s. 21(5) of the Courts of Justice Act because it is not an appeal from the decision of the motions judge, but simply a reconsideration. The language of s. 21(5) suggests the panel is hearing the matter de novo. If that is so, no deference would be required.

[10] There is no need to resolve the standard of review issue in this particular case. The issues raised by the grandparents are questions of law. There are no disputed facts. If there is an applicable “standard of review” that standard is correctness. This panel is free to conduct its own analysis without deference to the original decision.

[11] There are two issues: a) did the motion judge err in law by determining that the grandparents have no right to appeal beyond the narrow application of s. 37(4) of the Child and Family Services Act; and b) did the motions judge err in law by failing to apply the correct legal test when assessing the merits of the appeal?

[12] The factors to consider on a motion to dismiss an appeal for delay were set out by the Court of Appeal in Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2:

The factors a court should consider in deciding whether to grant this type of motion are well known. They are: whether the applicant has an intention to appeal within the time of bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and, the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.

[13] Paulsson clarifies that the consideration of the merits of the appeal simply means “whether it has any real chance of success” (para. 5).

[14] When Justice Ray expressed his “serious reservations and doubts about the success of the proposed appeal” he did not consider the merits of the constitutional challenge raised by the appellants. He stated, “I am satisfied that the constitutional challenge raised by the appellants is irrelevant to the issues in this case. All other matters have 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.”

[15] Had the trial judge on the reconsideration limited that reconsideration to the applicability of the statutory definition of native status (as she might have done), we would agree with the motion judge that the appeal by the grandparents would be doomed to fail. The grandparents themselves concede the children do not meet the requirements of the statutory definition. However, in our view it was open to the trial judge to conduct the more expansive review she did and she was not necessarily limited to the narrow inquiry of whether the children had native status according to the statutory definition. The trial judge on the reconsideration did not exceed her jurisdiction in expanding the reconsideration to include fresh evidence and proposed plans of care, as well as the constitutional challenge. The Children’s Aid Society has not challenged her decision to broaden the reconsideration in this fashion.

[16] We agree with the grandparents that in considering the merits of the appeal their constitutional and Charter challenge meet the relatively low threshold required by the Paulsson test. The appeal panel may be called upon to decide that issue if it determines that the application of sections 37(4) and 57(5) of the CFSA would have resulted in a different outcome on the facts of the case.

[17] The trial judge on the reconsideration decision gave extensive reasons for her refusal to place the children with the grandparents. Even if the constitutional and Charter challenge is successful in the abstract, it may not change the outcome on the facts of this case. One of the goals of the Child and Family Services Act is to afford the opportunity of permanency planning for children without undue delay. In hindsight it is obvious that the grandparents ought to have raised their constitutional and Charter challenge in the original protection proceeding in 2012 or in the status review application that led to the first Crown wardship order in the Fall of 2013. When they first raised this issue in the Spring of 2015, the two boys had already been in foster care for two years. By the time this appeal is heard it will be more than three years and a half years.

[18] In child protection cases, the court must also consider the impact of delay on the best interests of children. See: Children’s Aid Society of Toronto v. L.T., 2016 ONCA 146, at paras. 6-7. The trial judge emphasized this factor in her decision.

[19] However, it is not our function on this motion to consider the merits exhaustively. We do not conclude that the appeal is “without any real chance of success”.

[20] The grandparents have a statutory right of appeal from the December 2015 decision. They have initiated and pursued their appeal as quickly as it was practically possible for them to do so. It is important that the case be correctly decided, not just that it be expeditiously decided. We are not inclined to deny them a right of appeal based on delay when all indications are that the appeal can be heard less than 5 months from now.

[21] The order of April 12, 2016 is set aside. The appellants are to perfect their appeal by July 15, 2016. The responding appeal documents from the Children’s Aid Society are to be filed by August 19, 2016. The appeal is to be added to the Divisional Court list for Ottawa for the week of October 27 or such earlier time as counsel may arrange through the trial co-ordinator’s office.

[22] Family Law Rule 24(2) provides that the presumptive entitlement to costs for a successful party does not apply to government agencies. The mandate of the Children’s Aid Society insulates it from costs unless it acts unfairly or unreasonably. See Children’s Aid Society of Algoma v. M. (R.), 2001 25594 (ON CJ), [2001] O.J. No.2441. No costs.

Aston J.

Taylor J.

Thorburn J.

Date Released: June 4, 2016