CITATION: S.L.B. v. Catholic Children’s Aid Society of Hamilton, 2016 ONSC 6435
DIVISIONAL COURT FILE NO.: DC-16-692
COURT FILE NO.: C-25-15 (Hamilton)
DATE: 20161018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, SACHS and SHEARD JJ.
BETWEEN:
S.L.B.
Applicant (Appellant on Appeal)
– and –
Catholic Children’s Aid Society of Hamilton
Respondent (Respondent on Appeal)
S.L.B., Applicant in Person
M. Anis, Counsel for the Respondent
HEARD: at Hamilton October 7, 2016
M. Dambrot J.:
[1] A.M. (“AM”) was apprehended from his parents at birth in […], 2014. The moving party (“S.L.B.”) is his maternal grandmother. She has never had AM in her care. The Catholic Children’s Aid of Society of Hamilton (“CCASH”) brought a protection application respecting AM. S.L.B. was added to the application as a party in June 2015.
[2] On December 9, 2015 Pazaratz J. granted summary judgment to the CCASH and ordered that AM be made a Crown Ward without access. On January 11, 2016 S.L.B. commenced an appeal from the summary judgment. S.L.B. did not perfect her appeal and on March 30, 2016 the CCASH brought a motion seeking dismissal of S.L.B.’s appeal for delay. On June 6, 2016, S.L.B. brought a motion seeking an extension of time to perfect her appeal.
[3] Carpenter-Gunn J. heard both motions on June 28, 2016. The appeal had still not been perfected at that time. The motions judge refused to extend the time for perfection of the appeal and dismissed the appeal.
[4] On July 11, 2016 S.L.B. brought both an appeal and a motion to set aside the order of the motions judge. While these proceedings have been imperfectly brought, we will treat them as a motion pursuant to s. 21(5) of the Courts of Justice Act to set aside the decision of the motions judge sitting as a judge of the Divisional Court on the two motions in question.
[5] In her decision, the motions judge applied the proper test for an extension of time to perfect an appeal. She properly considered with great care the following factors:
• whether the application had an intention to appeal within time
• the length of the delay and any explanation for it
• prejudice caused by the delay
• the justice of the case which requires a consideration of the merits of the appeal
• the effect of delay on the best interests of the child.
[6] The motions judge concluded that all of these factors, save the first one, weighed against extending time and as a result dismissed the motion for an extension and dismissed the appeal.
[7] On the motion before this panel, we can only interfere with the decision of the motions judge if she made an error of law or a palpable and overriding error of fact. In our view, she made neither.
[8] The moving party also advanced allegations of breaches of natural justice or procedural fairness by the motions judge, and in particular alleged bias on her part. There is no standard of review in respect of these allegations, but there is a complete absence of evidence to support any of the allegations, and there is no merit to any of them.
[9] In particular, there is no merit to the argument that the motions judge “elevated Society counsel to the position of the judge.” As is clear from the motions judge’s reasons, when she asked Society counsel to review the material that the moving party brought with her to the hearing as a proposed record, she was merely asking Society counsel if, based on this material, she would consent to the relief sought by the moving party. There was no impropriety in doing so.
[10] As a result, the motion must be dismissed.
M. Dambrot J.:
[11] Motion dismissed for oral reasons delivered in court.
[12] No costs.
Dambrot J.
Sachs J.
Sheard J.
Released: October 18, 2016
CITATION: S.L.B. v. Catholic Children’s Aid Society of Hamilton, 2016 ONSC 6435
DIVISIONAL COURT FILE NO.: DC-16-692
COURT FILE NO.: C-25-15 (Hamilton)
DATE: 20161018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, SACHS and SHEARD JJ.
BETWEEN:
S.L.B.
Applicant (Appellant on Appeal)
– and –
Catholic Children’s Aid Society of Hamilton
Respondent (Respondent on Appeal)
REASONS FOR JUDGMEN
M. DAMBROT J.
Released: October 18, 2016