The Children's Aid Society of Ottawa-Carleton v. B.H.

CITATION: CAS v. B.H., 2017 ONSC 4799 COURT FILE NO.: DC-17-2298 DATE: 2017/08/10

ONTARIO

DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF

B E T W E E N:

The Children's Aid Society of Ottawa-Carleton Applicant

Danielle Marchand & Marie-Josée Ranger, for The Children’s Aid Society of Ottawa-Carleton

• and -

B.H. Respondent

Deanna Paolucci, Counsel for the Respondent

Lisa Sharp, Counsel for a party seeking to be added

HEARD: June 30, 2017

REASONS FOR DECISION

JUSTICE H.J. WILLIAMS

[1] This is a child protection matter in which a number of motions were brought pending an appeal to the Divisional Court of a Superior Court of Justice trial judge’s decision making the child a Crown ward with no access.

1. BACKGROUND:

[2] The parties to the application are the Children’s Aid Society of Ottawa (“the CAS”) and the child’s father (“the father.”)

[3] The child is a two-year-old boy who was apprehended at birth.

[4] On March 13, 2017, following an eight-day trial, the judge found that the child was in need of protection and ordered that the child be made a ward of the Crown with no access.

[5] At the time of trial, the child had been in care for 22 months.

[6] At trial, the father had asked that the child be placed in his care, with supervision, if required. As an alternative, the father had asked that the child be placed in his and his sister’s joint care. The father’s sister testified at trial that, in addition to being willing to work cooperatively with the father, as an alternative, she would assume full custody of the child and ensure that the father had no further contact with the child, if doing so was necessary in order to keep the child within the family.

[7] The child’s mother did not propose a plan of care for the child and did not participate in the trial; at the time of the trial she was incarcerated because of an aggravated assault against the father.

[8] The parties and the father’s sister, a non-party, asked me to hear the following motions in my capacity as a single judge of the Divisional Court:

• The father requested an order validating the delivery (the service and filing) of his notice of appeal or, in the alternative, an order extending[^1] time to file his notion of appeal and validating its delivery;
• The father requested an order staying the trial judge’s decision pending the appeal. (A stay order was not requested in the notice of motion of the father’s sister, to whom I will refer as “the aunt”, but was requested in her factum);
• The father requested access to the child pending the appeal for himself and the aunt as well as permission for their family members to attend access visits; the aunt requested access to the child pending the appeal for herself, her daughters and her family members;
• The father and the aunt requested an order to add the aunt as a party to the proceeding for purposes of the appeal. In the alternative, the aunt requested an order for leave to file a notice of appeal as a non-party;
• The CAS requested summary judgment dismissing the father’s appeal.

[9] The CAS brought cross-motions to dismiss the father’s and the aunt’s motions initially on the basis that the father’s notice of appeal had not been delivered in accordance with the timelines in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) and alternatively on other grounds. These cross-motions will be dealt with below in the context of each motion.

[10] The parties and the aunt had encountered some difficulties in scheduling a hearing for these motions. Consequently, they agreed to make submissions with respect to all of the motions at the same time, even though, if the motions had been heard and decided sequentially, the decision or decisions in one or some of them may have rendered the hearing of one or some of the others unnecessary. The parties and the aunt also agreed that the lawyer for the aunt would be permitted to make submissions even though the aunt would have no standing to do so unless she were added as a party and that the submissions on the aunt’s behalf would be disregarded in the event that the aunt were not added as a party.

[11] Because the outcome of some of the motions would determine whether it was necessary to decide some of the others, and because of the issue of the aunt’s standing to bring her access motion, I decided the motions in the following order:

MOTION #1: The father’s motion to validate his notice of appeal MOTION #2: The CAS’s motion for summary judgment MOTION #3: The aunt’s motion to be added as a party MOTION #4: The request for a stay MOTION #5: The request for access to the child for the father and the aunt pending the appeal

2. THE KEY CONSIDERATION:

[12] In deciding these motions, I was reminded that, in cases involving the Child and Family Services Act, R.S.O. 1990, c. C. 11 (“the CFSA”), the over-riding consideration is what is in the best interests of the child.

[13] Section 1(1) of the CFSA reads as follows:

The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

[14] Part III of the CFSA, the “Child Protection” section of the Act, includes, in s. 37(3) a list of circumstances which shall be taken into consideration when an order or determination is to be made that is in the best interests of a child. These circumstances are:

(1) The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. (2) The child’s physical, mental and emotional level of development. (3) The child’s cultural background. (4) The religious faith, if any, in which the child is being raised. (5) The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. (6) The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. (7) The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. (8) The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. (9) The child’s views and wishes, if they can be reasonably ascertained. (10) The effects on the child of delay in the disposition of the case. (11) The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. (12) The degree of risk, if any, that justified the finding that the child is in need of protection. (13) Any other relevant circumstance.

[15] What may have appeared to be in the best interests of the father, the aunt and/or their extended family was not at issue on these motions; the focus was on the child.

3. THE MOTIONS:

MOTION #1: The father’s motion to validate delivery of his notice of appeal or, alternatively to extend time for and validate delivery of the notice of appeal

Disposition:

[16] The motion is allowed. The cross-motion of the CAS is dismissed. The time to deliver the father’s notice of appeal is extended and delivery of the notice of appeal is validated.

The facts:

[17] The father served a notice of appeal on April 11, 2017, which was within 30 days of March 13, 2017, the date of the trial judge’s reasons for decision.

[18] The father was unable to file the notice because the court office refused to accept it without a signed order.

[19] In an affidavit, the father’s lawyer’s student said that he was informed by staff at the court office that it was the signing of the order (and not, therefore, the release of the trial judge’s decision) that triggers the 30-day period for serving a notice of appeal. The student said that he was told to wait until the order had been signed and to serve the notice of appeal for a second time.

[20] The order was signed on April 10, 2017.

[21] The father’s lawyer received the signed order on April 12, 2017.

[22] The father’s lawyer took no further steps before May 5, 2017, when the lawyer for the CAS wrote to the father’s lawyer to ask whether the appeal had been abandoned, noting in her letter that the April 11, 2017 notice of appeal had not been filed within 10 days of the date of service, as required by the Rules.

[23] The same day, May 5, 2017, the father’s lawyer wrote back to the lawyer for the CAS, explained what had happened and said that the notice of appeal would be served and filed before May 10, 2017, which she understood to be the applicable deadline, i.e. 30 days from the date the order was signed.

[24] The father’s lawyer served and filed a second notice of appeal on May 8, 2017. The second notice of appeal, dated May 7, 2017 was not identical to the April 11, 2017 notice of appeal; the relief sought in the two notices of appeal was identical but the first notice of appeal included 16 grounds of appeal and the second notice of appeal only five grounds of appeal. (The second notice of appeal appears to include six grounds of appeal but sixth is a duplicate of the second.)

[25] The father’s lawyer advised the court that the trial transcripts the father believed were required for the appeal had been ordered by May 9, 2017 and that all transcripts had been ordered by the date of the hearing of the motions and were expected to be ready within a week.

Law and analysis:

[26] This is a child protection matter which is governed by Part III of the CFSA.

[27] Rule 1(2)(a)(ii) of the Family Law Rules, O. Reg. 114/99 (the “FLRs”) provides that the FLRs apply to these cases.

[28] Rule 38(1) of the FLRs provides that Rules 61, 62 and 63 of the Rules apply in respect of appeals to the Divisional Court in family law cases described in Rule 1(2) of the FLRs. (The appeal of the trial judge’s decision in this case is to the Divisional Court pursuant to s. 69 of the CFSA and s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C 43, (the “CJA”)).

[29] Rule 61.04(1) of the Rules provides 30 days “after the making of the order appealed from” for service of a notice of appeal. The 30 days run from the date the decision is “rendered” (Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 2003 42272 (ON CA), 62 O.R. (3d) 647, 28 C.P.C. (5th) 258, 167 O.A.C. 159 (C.A.))

[30] In this case, the 30-day clock began to tick, contrary to what the father’s lawyer’s student was told, on March 13, 2017, when the trial judge’s reasons for judgment were released and not on April 10, 2017, when the formal order was signed.

[31] The father is seeking to validate delivery of the notice of appeal he served and filed on May 8, 2017. To do this, the time for delivery of the notice must be extended.

[32] Under Rule 3.02(1) of the Rules, subject to Rule 3.02(3), the court may by order extend or abridge any time prescribed by the Rules or an order, on such terms as are just. (Rule 3.02(3) provides that if the extension or abridgement request relates to an appeal, the order may only be granted by a judge of the appellate court. I may, therefore, make such an order as I am hearing this motion in my capacity as a judge of the Divisional Court, the court to which the appeal is being made.)

[33] The test for an extension of time to file a notice of appeal is well-settled. The relevant factors were recently set out in Chandra v. Canadian Broadcasting Corp. (2016), 2016 ONCA 448, 349 O.A.C. 93, 2016 448 (C.A.), citing Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 16:

(1) whether the appellant formed an intention to appeal within the relevant period; (2) the length of the delay and explanation for the delay; (3) any prejudice to the respondent; (4) the merits of the appeal; and (5) whether “the justice of the case” requires it.

[34] The governing principle on these motions is simply whether the “justice of the case” requires than an extension be given. (Rizzi v. Mavros, supra, at para. 17.)

[35] Returning to “the key consideration”, above, in child protection matters, determining whether the “justice of the case” requires an extension requires a consideration of the best interests of the child; delay in child protection matters is a serious concern. (Kenora Patricia Child and Family Services v. S., [2004] O.J. No. 768 (Ont. C.A.)

i. Intention to appeal:

[36] The CAS concedes that the father formed an intention to appeal within the relevant period; the father’s April 11, 2017 notice of appeal is evidence of this intention.

ii. The length of the delay and explanation for the delay:

[37] The CAS takes issue with the length of time it took for the father to deliver his second notice of appeal and the explanation for the delay.

[38] The CAS argues that the signed order of the trial judge was available on April 12, 2017 and that there was no reasonable explanation as to why the father waited almost an additional month before delivering his second notice of appeal on May 8, 2017.

The length of the delay:

[39] With respect to the length of the delay, as mentioned above, under Rule 61.04(1), an appellant has 30 days from the date an order is rendered to serve a notice of appeal. Under Rule 61.04(4), the appellant then has a further 10 days from the date of service to file the notice.

[40] As the reasons for judgment were released on March 13, 2017, the father had until April 22, 2017 to deliver (i.e. to serve and to file) his notice of appeal. April 22, 2017 was a Saturday. Rule 3.02(1)(c) provides that if the time for doing an act expires on a holiday, which includes a Saturday or a Sunday, the act may be done on the next day that is not a holiday. The father, therefore, had until Monday, April 24, 2017 to deliver the notice of appeal.

[41] The father delivered his notice of appeal on May 8, 2017, 14 days later.

The explanation for the delay:

[42] Although the CAS does not consider the father’s explanation for the delay to be reasonable, there was an explanation for the delay.

[43] The affidavit of the father’s lawyer’s student explained that the staff at the court office had informed the student that the 30-day period for serving the notice of appeal started to run only when the order was signed and that, although the notice of appeal had been served before the order was signed, it would need to be served again after the order was signed. This information was inaccurate and the father’s lawyer should have made her made her own inquiries. However, I find that it is nonetheless a reasonable explanation for the delay, particularly given that the delay in delivering (i.e. serving and filing) the notice was only two weeks in duration.

iii. Any prejudice to the respondent:

[44] As this is a child protection matter, in respect of the issue of prejudice, the question to be asked is whether there is any prejudice to the child. (Children’s Aid Society of Toronto v. E.O., 2015 ONCA 696.)

[45] The CAS argues that the extension of time would result in prejudice to the child.

[46] I disagree.

[47] Subject to the merits of the appeal, which I will consider below, the question at hand is whether extending time for delivery of the notice of appeal by two weeks would result in prejudice to the child, not whether the appeal itself would cause any prejudice to the child; the father has a statutory right to appeal the trial judge’s decision, under s. 69 of the CFSA.

[48] I note that Rule 61.05(5) of the Rules requires an appellant to file proof, within 30 days after filing the notice of appeal, that a transcript of all oral evidence that the parties have not agreed to omit has been ordered.

[49] Because, as noted above, according to the timelines in the Rules, the father was not required to file his notice of appeal until April 24, 2017, the deadline for filing proof of having ordered the transcripts under Rule 61.05(5) did not expire until May 24, 2017.

[50] I refer again to the father’s lawyer’s submission to the court that the trial transcripts the father believed were required for the appeal had been ordered by May 9, 2017, two weeks earlier than would have been required if the notice of appeal had been delivered on time, and that all of the transcripts had been ordered by the date of the hearing of the motions before me and were expected to be ready within a week. Therefore, it is expected that all of the transcripts will be available by the time this decision is released.

[51] Even in the context of a child protection matter in which delay is a significant factor, I find that, in this case, there is no prejudice to the child.

iv. The merits of the appeal:

[52] When considering the merits of an appeal on a motion to extend time, it is not a matter of determining whether the appeal will succeed, but rather a matter of determining whether the appeal has so little merit that the court could reasonably deny the right of appeal. (Chandra v. Canadian Broadcasting Corp., supra.)

[53] I am mindful that the degree of deference owed to a trial judge is particularly high in child protection cases. (Children’s Aid Society of Toronto v. L. (V.), [2012] O.J. No. 6009, 2012 ONCA 890 (Ont. C.A.), leave to appeal refused [2013] S.C.C. No. 1112.)

[54] The CAS argues that, given the nature of the grounds of appeal in the father’s notice of appeal, the applicable standards of review, the record that was before the trial judge and the level of deference owed to the trial judge, the appeal is entirely without merit.

[55] Several of the grounds of appeal in the father’s notice of appeal relate to findings of credibility or to findings of fact.

[56] In his notice of appeal, the father also submits that the trial judge placed too much emphasis in the circumstances on the statutory timelines in the CFSA and that he prioritized the timelines over the best interests of the child.

[57] The father also submits that the trial judge failed to apply the correct test to assess the best interests of the child by:

(a) failing to consider whether Crown wardship was the least intrusive available approach and not sufficiently considering the placing the child with the child’s extended family; (b) disregarding evidence and submissions relating to the aunt’s potential custody of the child; and (c) failing to consider the benefits of the child’s existing and future relationships with the father, his older siblings, the aunt, the aunt’s two daughters and their extended family.

[58] This is a case in which:

• The child had been in care with the same foster mother for 22 months by the time of the trial, well in excess of the 12-month limit established by the CFSA;
• The child’s mother did not participate in the trial;
• The trial judge found that there was a risk that the child was likely to suffer physical harm inflicted by his father, caused by or resulting from the father’s likely failure to adequately care for, provide for, supervise or protect the child. The father had a long history of drug abuse and dependency. The trial judge found the father to be an extremely unreliable witness;
• The trial judge said that one day, the father might achieve remission and stability with respect to his drug dependency but that that day had not yet come;
• The father’s sister (“the aunt”), who lives in Montreal, works as a psychiatric nurse and has two children of her own, presented a plan of care for the child which would have seen her parent the child jointly with the father;
• The aunt said at trial that she would also be willing to assume full custody of the child and also to prevent the father from having contact with the child;
• Prior to the trial, the aunt had had access visits with the child, including visits with and without the father and unsupervised visits in the community with her two daughters;
• The aunt’s plan had not been assessed by the CAS at the time of the trial;
• An assessment of the aunt’s plan had been thwarted in part because she had not formally presented a plan until the fall of 2016 and in part because she and her husband had separated just few weeks before the trial and the Montreal agency that would have conducted the assessment had concluded that it could not do so for a period of 90 days following the separation in order to provide her family with a period of adjustment;
• The trial judge concluded that, given the passage of time and its impact upon the best interests of the child, it was not appropriate to adjourn the trial so that an assessment of the aunt’s plan could be undertaken;
• The trial judge considered the aunt’s plan;
• The trial judge expressed concerns about the aunt’s level of awareness of the father’s mental health issues and relationship with drugs and in respect of the risk the father posed to the child;
• The trial judge said that it would be impossible to imagine that the aunt would adequately protect the child from the father;
• The trial judge said that the father had misinformed the aunt about the nature and scope of his drug dependency and that this rendered the aunt unsuitable;
• The trial judge acknowledged that it was “always preferable to keep any child within his broader family”;
• Having found that the child was in need of protection, the trial judge ordered that the child be made a Crown ward with no access;
• In addition to the aunt and her two daughters, the child’s extended family includes other aunts, uncles, cousins, grandparents and two half-siblings;
• The trial judge concluded his decision with some strong comments about the effect of the passage of time on children in care, expressing the view that the attention that has been focused on lowering the time before a trial in criminal cases should also be turned to child protection cases.

[59] I do not have the complete trial record before me and I am not in a position to comment on the likelihood of success of the appeal. I am not, however, required to comment on the likelihood of success of the appeal; I am merely required to decide whether the appeal has so little merit that I could reasonably deny the right of appeal.

[60] The implications of a Crown wardship with no access order can be significant in the extreme. In this case, one of the effects of the order is that the child may[^2] lose contact not only with his father, from whom the child was found to be in need of protection, but also with a large extended family. (The significance of the severing of the tie between the child and the extended family must, of course, be viewed from the perspective of the best interests of the child and not from that of the members of the extended family.)

[61] Section 57(4) of the CFSA requires the court to consider an alternative before resorting to a society or Crown wardship order:

COMMUNITY PLACEMENT TO BE CONSIDERED – Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

[62] It is possible that an appeal court could conclude that, notwithstanding the trial judge’s legitimate concerns about the effect of delay on the child and the fact that, at the time of the trial, the child had already been in care for 10 months longer than the 12-month maximum stipulated by the CFSA, in the circumstances, an adjournment of the trial to permit the CAS to assess the aunt’s plan of care would have been in the best interests of the child.

[63] The trial judge was concerned that the aunt would be unable to protect the child from father. While it is not clear whether he was referring exclusively to the aunt’s formal proposal of joint care and custody with the father, the offer the aunt made at the trial to assume full custody or both, the trial judge concluded that it was “substantially likely that [the father] would play an integral role in [the child]’s care, supervision and upbringing”.

[64] The trial judge was also concerned that the aunt lacked insight into the father’s drug issues. The trial judge found that the aunt’s position with respect to the father’s drug dependency was misinformed; he found that the father had misinformed the aunt about the nature and scope of his drug dependency and that this deception had rendered the aunt “unsuitable” to mitigate protection concerns.

[65] Section 69(6) of the CFSA provides that the court may receive further evidence relating to events after the appealed decision. A typical motion for fresh evidence on appeal occurs when a party seeks to bring the court up-to-date on developments subsequent to the trial or to adduce new and relevant evidence with respect to an issue that was dealt with at the trial. (Children’s Aid Society of Haldimand-Norfolk v. C. (D.), 1998 2580 (ON CA), [1998] O.J. No. 1048, 37 R.F.L. (4th) 189 (Ont. C.A.))

[66] In this case, it is possible that an appeal court could conclude, particularly in the event that it is asked to receive further evidence on the issue, that if the aunt did not know about the nature and scope of the father’s drug issues at the time of the trial, she became aware of them as a result of the trial.

[67] It is also possible that an appeal court could conclude that the concerns the trial judge had about the aunt’s potential inability to protect the child due to an inability to police the father could, if necessary, be minimized or eliminated by a restraining order. Section 57.1(3) of the CFSA provides that a court which makes a custody order instead of an order under s. 57(1) (the section under which the trial judge made the child a Crown ward) may also make a restraining order if there are concerns for the safety of the child or the person in whose custody the child was placed.

[68] Keeping in mind at all times the key consideration in child protection cases, the best interests of the child, and considering the implications of a Crown wardship with no access order, particularly in the context of a case in which a member of a large extended family has expressed a willingness to share or to assume custody of the child, I am not prepared to find that this appeal has so little merit that the right to appeal should be denied.

v. The “justice of the case”:

[69] This case is about the fate of a two-year-old child; its outcome will affect the entire life of this child.

[70] The justice of the case requires that the time for delivery of the notice of appeal be extended and that delivery of the notice of appeal be validated. Particularly given that a notice of appeal was served within the 30-day time limit, it would be unjust to deny the father his right of appeal because of a 14-day delay.

[71] As a postscript, despite the invitation to do so, I specifically do not find that the CAS contributed to the delay in the delivery of the notice of appeal, intentionally or otherwise, by providing the father’s lawyer with the signed order on April 12, 2017.

MOTION # 2: The CAS’s motion for summary judgment dismissing the father’s appeal

Disposition:

[72] The motion is dismissed. Summary judgment is not available on a motion to the Divisional Court on an appeal under s. 69 of the CFSA.

Law and analysis:

[73] The CAS seeks summary judgment dismissing the father’s appeal.

[74] Rule 38 of the FLRs applies to appeals.

[75] The CAS notes that Rule 38(28) of the FLRs provides that, after a notice of appeal is filed, the respondent or any other person who is entitled to be heard on an appeal, may make a motion for summary judgment or for summary decision on a legal issue, without a hearing of the appeal, and that Rule 16 of the FLRs applies to such motions with necessary changes.

[76] Rule 16 of the FLRs is the “summary judgment” rule, the family law equivalent of Rule 20 of the Rules.

[77] The CAS acknowledges that Rule 38(28) of the FLRs does not apply to the father’s appeal in this case. This is because the father’s appeal is of an order made by the Superior Court of Justice and is to the Divisional Court and Rule 38(4) of the FLRs states that Rules 38(5) to (45) of the FLRs apply to appeals of orders made by the Ontario Court of Justice to the Superior Court of Justice.[^3]

[78] The CAS also acknowledges that the Rules do not include provisions for summary judgment motions in the context of appeals, in other words, that there is no equivalent to Rule 38(28) of the FLRs in the Rules.

[79] However, the CAS argues that because summary judgment is available in appeals under s. 69 of the CFSA from the Ontario Court of Justice to the Superior Court of Justice, it would be appropriate for the Divisional Court, particularly in the wake of the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, to apply Rule 20 of the Rules to the father’s appeal and to dismiss it on the basis that it raises no genuine issue requiring an appeal.

[80] The CAS argues that applying Rule 20 to this appeal would be consistent with the following passage from the Hryniak decision:

[4] […] a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[5] To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

[27]There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

[28] This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

[81] In support of its request for summary judgment dismissing the father’s appeal, the CAS urges me to rely upon s. 134(1) of the Courts of Justice Act which provides that a court to which an appeal is taken may “make any order or decision that ought to or could have been made by the court or tribunal appealed from” and “make any order or decision that is considered just.”

[82] The CAS points to Ireland v. Ireland 2011 ONCA 623 (Ont. C.A.), in which Justice Juriansz, on a motion, relied upon s. 134(1) to make a disclosure order under Rule 20(5) of the FLRs, although the FLRs do not apply to proceedings before the Court of Appeal.

[83] The CAS also argues that “the rules of procedure should be the servant of substantive rights and not the master.” (Reekie v. Messervy 1990 158 (SCC), [1990] 1 SCR 219 at 222.)

[84] In urging me to apply Rule 20 of the Rules to this appeal, the CAS also points to Rule 1(7) of the FLRs which reads as follows:

If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules.

[85] The CAS submits that, in order to apply Rule 20, I may also look to the Rules and specifically to Rule 1.04(1) and 1.04(2), which read as follows:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits;

1.04(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.

[86] The CAS also argued that because delay in a child protection case is not in the best interests of the child, it is all the more appropriate for summary judgment to be available in appeals.

[87] The CAS then reviewed the grounds of appeal in the father’s notice of appeal and argued that, particularly given the high degree of deference which must be accorded to a trial judge in a child protection cases in light of the fact-based and discretionary nature of the trial judge’s findings, not only does the father’s appeal raise no genuine issue requiring an appeal, it is plain and obvious that the appeal cannot succeed.

[88] Particularly given the effect of delay in these cases, the desire of the CAS to have a mechanism available to facilitate the early dismissal of appeals considered to be unmeritorious is understandable.

[89] Nonetheless, for the following reasons, I have concluded that summary judgment is not available to the CAS in this case:

• Rule 38(28) of the FLRs clearly provides for summary judgment motions in appeals. This rule does not, however, apply to appeals to the Divisional Court. Rule 38(4) of the FLRs specifically states that Rules 38(5) to 38(45) (a series which, of course, includes Rule 38(28)) apply to appeals from the Ontario Court of Justice to the Superior Court of Justice.
• Although Rule 38(28) of the FLRs does not refer to appeals to the Divisional Court, Rule 38(1) does. Rule 38(1) lists rules which apply to appeals that lie to the Divisional Court and the Court of Appeal. It states that Rules 61, 62 and 63 of the Rules apply to these appeals. Rule 38(2) of the FLRs then provides abridged versions of some of the timelines in Rules 61 and 62 of the Rules for appeals under the CFSA. Nowhere in Rule 38 of the FLRs is there a provision for a summary judgment motion in an appeal to the Divisional Court.
• Rule 20 of the Rules does not provide for summary judgment motions in appeals.
• Rule 61.16 of the Rules, which deals specifically with motions in appellate court, does not provide for summary judgment motions.
• If the drafters of the FLRs or the Rules had intended summary judgment motions to be available in appeals to the Divisional Court, provisions allowing for such motions could have been included in either the FLRs or the Rules; neither the family nor the civil rules include such provisions.

[90] I have concluded that I cannot rely upon Rule 1(7) of the FLRs to conclude that summary judgment is available either by analogy to the FLRs or by reference to the Courts of Justice Act or the Rules. This is not a situation, to quote from Rule 1(7) of the FLRs, in which I could appropriately conclude that the FLRs “do not cover a matter adequately.” To the contrary, I believe that this is a situation in which the drafters of the FLRs, by specifically allowing in Rule 38 for summary judgment motions in appeals from the Ontario Court of Justice to the Ontario Superior Court of Justice only, must have intended to disallow summary judgment motions in appeals to the Divisional Court. For the reasons set out above, I find that summary judgment is not available on a motion to the Divisional Court on an appeal under s. 69 of the CFSA.

MOTION # 3: The father and the aunt seek an order to add the aunt as a party to the proceeding for purposes of the appeal. In the alternative, the aunt seeks an order for leave to file a notice of appeal as a non-party

Disposition:

[91] The motions are dismissed. The CAS cross-motions to dismiss these motions are allowed. (The aunt requested this relief by including a notice of motion in her name in the motion record of the father. While I do not believe that this was procedurally appropriate, because the father made the same request in his notice of motion, I have decided the issue without considering the procedural concern.)

Facts:

• The aunt was a witness at the trial and presented a plan of care for the child.
• The aunt was not added as a party to the proceeding prior to or at the trial.
• In her affidavit in support of this motion, the aunt explained that it had never crossed her mind to become a party to the proceeding because she believed that the CAS was encouraging her to offer her home to the child.
• The aunt had formally presented a plan for care of the child in the fall of 2016. In his reasons for judgment, the trial judge described the aunt’s plan as an “11th hour proposal.” In her affidavit, the aunt explained that she had not presented a plan of care earlier than she did because she had been afraid of the child’s mother, who had once assaulted her. The aunt also said that she had thought long and hard about whether she could commit to welcoming the child into her family. She also said that she had been strongly encouraged by the CAS to take her time before deciding whether she could commit to the child on a long-term basis.
• The aunt is a nurse who works at a mental health facility in Montreal. She has two daughters, aged 10 and eight.
• In her affidavit, the aunt said that she had moved to a new apartment in Montreal that has four bedrooms, so that there would be room for the child as well as herself and her two daughters.
• The aunt and her husband separated early in 2017. The aunt and her two daughters moved into their new apartment on February 1, 2017, just weeks before the trial began on February 21, 2017.
• At the time, the Montreal agency that was to have conducted a kinship assessment of the aunt considered the separation to represent a crisis that rendered it unable to accurately assess the family.
• The agency said that it would re-open the aunt’s file following a 90-day period of adjustment.
• The aunt is concerned that the trial judge’s decision, if undisturbed on appeal, will result in the child losing contact with the members of his extended family, whom she describes as loving, educated and hard-working and who include two half-siblings, two grandparents, aunts, uncles and eight cousins, including the two daughters of the aunt.

Law and analysis:

[92] Section 69(2) of the CFSA lists the individuals who may appeal an order in a child protection case. They are:

(a) the child, if the child is entitled to participate in the proceeding under subsection 39(6) (child’s participation); (b) any parent of the child; (c) the person who had charge of the child immediately before intervention under this Part [Part III of the CFSA]; (d) a Director or local director; or (e) where the child is an Indian or native person, a representative chose by the child’s band or native community.

[93] The aunt is not an individual who has a right of appeal under s. 69 of the Act.

[94] In L. (R.) v. Children’s Aid Society of Metropolitan Toronto (1994), 1994 4476 (ON SC), 1994 CarswellOnt 5672, [1994] O.J. No. 2056, 8 O.F.L.R. 141 (Ont. Gen. Div.), Justice Chapnik held that the word “parent” in s. 69(1)(b) of the CFSA should be read to include any party who put forward at trial a viable parenting plan for the child.

[95] In dismissing a Children’s Aid Society motion to dismiss an appeal by a child’s grandparents, Justice Chapnik noted that the grandparents had been made parties and had participated fully in the trial. They had presented a plan of care for the child and had called expert testimony at trial in support of their plan.

[96] Justice Chapnik concluded that, given the paramount purpose of the CFSA, to promote the best interest, protection and well-being of children, the legislature could not have intended to preclude “a party who has submitted a credible parenting plan for a child” at trial from appealing the ultimate decision as to what is or is not in the child’s best interests.

[97] In the case before me, the aunt was not a party to the original proceeding but did put forward a parenting plan.

[98] As I noted above, the FLRs apply to proceedings under Part III of the CFSA, which is the “Child Protection” section.

[99] Rule 7(5) of the FLRs allows the court to add as a party “any person who should be a party.”

[100] In the recent decision of A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell 2017 ONCA 601, the Court of Appeal considered the relevant factors when a request is made to add a party to a child protection case:

22 The decision often cited for establishing criteria for adding parties in child protection proceedings is Children’s Aid Society of London & Middlesex v. H. (S.), 2002 46218 (ON SC), [2002] O.J. No. 4491 (Ont. S.C.J.) (QL). That case suggests, at para. 22, that the relevant questions are:

(i) whether the addition of the party is in the best interest of the child; (ii) whether the addition of the party will delay or prolong the proceedings unduly; (iii) whether the addition of the party is necessary to determine the issues; and (iv) whether the proposed party is a person capable of putting forward a plan that is in the child’s best interests.

23 Whether the person has a legal interest in the proceeding — in the sense that an order can be made in favour of or against such person — has also emerged as a relevant factor: Children’s Aid Society of Algoma v. C. (V.), 2011 ONCJ 83 (Ont. C.J.), at paras. 11 and 12.

24 It is not necessary for all factors to favour the person seeking party status for the court to add him or her: C. (V.), at para. 19.

[101] It is not a given that the aunt would have been added as a party to the proceeding before or at the trial had she made the request. The aunt presented a plan of care for the child. However, her position was significantly aligned with that of her brother; it was a plan would have seen the child placed in the joint care and custody of the father and the aunt.

[102] It was only when, at the conclusion of her evidence at trial, the aunt said that as an alternative, she would assume full custody and prevent her brother from having any access to the child if that is what would be necessary in order to keep the child within the family, that the aunt’s interests appeared to conflict with those of her brother.

[103] I have been asked to rely upon Rule 7(5) of the FLRs, to which I referred above, and Rule 13 of the Rules to add the aunt as a party to the appeal.

[104] Rule 13.01 of the Rules provides that a person who is not a party to a proceeding may move to be added under certain circumstances:

(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding; (b) that the person may be adversely affected by a judgment in the proceeding; or (c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

[105] Rule 13.03(1) of the Rules of Civil Procedure provides specifically for the addition of parties to appeals in the Divisional Court:

Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them.[^4]

[106] The FLRs do not provide as clear a roadmap to adding a party to a Divisional Court appeal[^5] as would Rule 13 of the Rules.

[107] The complete wording of Rule 7(5) is as follows: “The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.”

[108] Rule 38 of the FLRs deals with appeals but does not refer to the addition of parties.

[109] As I noted above, Rule 1(7) of the FLRs permits me to refer to the Rules but only if the FLRs do not cover the matter adequately. It reads as follows:

If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules.

[110] The FLRs are intended to be a complete procedural code and references to the Rules are meant to be the exception. In Gray v. Gray, 2017 ONCA 100, Justice MacPherson referred to Justice Benotto’s decision in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321 (Ont. C.A.):

As Benotto J.A. stated in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321 (Ont. C.A.), at para. 11:

The FLRs were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

Rule 2(2) states that the “primary objective of these rules is to enable the court to deal with cases justly.” While r. 1(7) permits a court to refer by analogy to the Rules where the family rules do not adequately cover a matter, such instances will be “rare”; Frick, at para. 12. The FLRs are intended to be a complete procedural code.

[111] In deciding whether to add the aunt as a party, I must decide whether I may deal with this case “justly” by relying exclusively upon Rule 7(5) of the FLRs or whether I may refer to Rule 13 of the Rules, which deals specifically with the relief I am being asked to grant, in the knowledge that references to Rules, however tempting they may be, should be rare.

[112] Although Rule 7(5) of the FLRs is silent with respect to adding parties specifically to appeals, Rule 7(1) of the FLRs, which identifies the parties to a case, reads: “A person who makes a claim in a case or against whom a claim is made in a case is a party to the case.” The word “case”, under Rule 2(1) of the FLRs, “means an application or any other method allowed in law for bringing a matter to the court for a final order or provisional order, and includes all motions, enforcement and appeals.” As the parties to a case under Rule 7(1) include parties to an appeal, and the court, under Rule 7(5) may “order that any person who should be a party shall be added as a party”, particularly given that the FLRs are meant to be a complete procedural code, I conclude that Rule 7(5) applies to adding persons as parties to appeals to which the FLRs apply, such as this appeal under s. 69 of the CFSA.

[113] As I noted above, the relevant questions to be asked in a case in which a person seeks to be added as a party to a child protection proceeding are:

(i) whether the addition of the party is in the best interest of the child; (ii) whether the addition of the party will delay or prolong the proceedings unduly; (iii) whether the addition of the party is necessary to determine the issues; and (iv) whether the proposed party is a person capable of putting forward a plan that is in the child’s best interests; (v) whether the person has a legal interest in the proceeding — in the sense that an order can be made in favour of or against such person.

[114] It is not necessary for all factors to favour the person seeking party status for the court to add him or her.

[115] I have considered the five relevant questions. While I do not believe that the addition of the aunt as a party to the appeal would necessarily unduly delay or prolong the proceeding, while the aunt may be capable of putting forward a plan that is in the child’s best interests and while I believe that the aunt has a legal interest in the proceeding in the sense that a custody order could be made in her favour, for the following reasons, I have concluded that the addition of the aunt as a party to the appeal is not necessary to determine the issues and consequently, I do not find that adding the aunt as a party would be in the best interests of the child:

• The aunt has no right of appeal under s. 69(2) of the CFSA;
• I cannot follow Justice Chapnik’s lead in L. (R.) v. Children’s Aid Society of Metropolitan Toronto, supra, because, although the aunt presented a plan of care for the child at the trial, she was not a party to the proceeding;
• The viability of the aunt’s plan of care for the child is already squarely in issue in the appeal through the father’s appeal. The fifth ground of appeal in the father’s notice of appeal reads as follows:

5. The Honourable Justice erred in law by not applying the correct test to assess the best interest of the child, specifically, by:

a. failing to consider whether an order for Crown Wardship was the least intrusive approach for the child and not sufficiently considering the various possibilities available to the court with respect to placing the child with his extended family;

b. disregarding the evidence and the oral arguments of the parties, including the Society’s oral arguments, that the paternal aunt, […], was a fit parent who could have custody of the child;

c. by failing to consider the benefits of his existing and future potential relationships with his father, his older siblings, his paternal aunt, […] and her two daughters, as well as the extended […] family ;

• The aunt, at the conclusion of her testimony at trial, said that she would take full custody of the child and, if it were necessary in order to keep the child in the family, would also prevent the father from having any contact with the child. This evidence suggested a divergence between the positions of the father and the aunt or at least between the father’s interests and an alternative position adopted by the aunt, and might have been an indicator to me that party status for the aunt would be appropriate. However, it is evident that the father’s and the aunt’s interests, which were substantially aligned at the trial, continued to be aligned following the trial. For example:

(a) Their respective notices of motion in the motions before me were included in the same motion record; (b) Both the aunt and the father requested in their notices of motion that the aunt be added as a party to the appeal; (c) In his notice of motion, the father requested access to the child not only for himself but also for the aunt and her daughters; and (d) One of the two lawyers who represented the father at the trial is now representing the aunt, while the other continues to represent the father. The lawyer now representing the aunt cannot be expected to take a position that is contrary to her former client’s (the father’s) interests. Further, if the aunt were planning to take a position that is contrary to the father’s interests, I would expect that the father would have opposed the aunt’s motion to be added as a party rather than seeking the same relief himself.

[116] To summarize, because the aunt has no right of appeal under the CFSA, because the aunt was not a party at the trial and because both the evidence before me and the choice of legal representation of the aunt indicate that the aunt’s position on the appeal would be the same or largely the same as that of the father, I conclude that the aunt’s position on the appeal will be adequately presented by the father’s lawyer, that the addition of the aunt as a party is not necessary to determine the issues on the appeal, that the best interests of the child will not be compromised if the aunt is not added as a party and that, therefore, this is not a situation in which the aunt, in the words of Rule 7(5) of the FLRs “should be a party” to the appeal.

[117] I believe that Rule 7(5) of the FLRs covers the situation adequately to enable me to conclude that the aunt should not be added as a party to the appeal and that therefore I do not need to, nor should I, refer to Rule 13 of the Rules.

[118] In her notice of motion, in the alternative to her request to be added as a party, the aunt also sought leave to file a notice of appeal as a non-party. In substance, I do not believe that there is a distinction between that request and her request to be added as a party to the appeal. The aunt’s request for leave to file a notice of appeal as a non-party is denied for the same reasons that her request to be added as a party was denied and because that request for relief, which was not duplicated in the father’s notice of motion, was not properly before the court.

MOTION #4: The father’s request that the trial judge’s decision be stayed pending the appeal

Disposition:

[119] The father’s motion for a stay is dismissed. The CAS cross-motion to dismiss the father’s motion is allowed.

Facts:

[120] The trial judge ordered that the child be made a Crown ward with no access.

[121] The father seeks a stay of the decision of the trial judge pending the appeal.

[122] A stay order was not requested in the notice of motion of the aunt although, in her factum, the aunt argued in favour of a stay both as a party and as a non-party. As I have denied the aunt’s request to be made a party, I will not consider the aunt’s request for a stay, as a party or as a non-party. Having said that, it appears that the aunt’s request for a stay as a non-party was in substance a request for her to have access to the child pending the appeal, relief the father sought on her behalf in his notice of motion and which I will consider under “Motion #5”, below.

[123] If the trial judge’s order is stayed, it will reinstate access to the child for the father pending the appeal.

[124] It will have no impact on the aunt who had access, not by court order, but at the discretion of the CAS.

[125] Prior to the trial, the father had supervised access to the child three times per week.

Law and analysis:

[126] As noted earlier in these reasons, Rule 38(1) of the FLRs provides that Rules 61, 62 and 63 of the Rules apply to appeals in CFSA cases that are heard by the Divisional Court.

[127] Rule 63.02(1) of the Rules provides as follows:

(1) An interlocutory or final order may be stayed on such terms as are just,

(a) by an order of the court whose decision is to be appealed;

b) by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken.

[128] In Berry v. Berry, [2012] W.D.F.L. 45, 7 R.F.L. (7th) 29, 2010 CarswellOnt 10983 (Ont. C.A.) (In Chambers) Justice Rosenberg referred to the test for a stay, which had its origins in the Supreme Court of Canada’s decision in RJR-MacDonald Inc. v. Canada (Attorney General) 1994 117 (SCC), [1994] 1 S.C.R. 311, and applied it to a family law case involving access to a child:

The test to be applied on this application is whether there is a serious question to be tried, whether there will be irreparable harm to the child if a stay in not granted, and whether the balance of convenience favours granting a stay.

[129] There has been some debate about whether the three-part test applied by Justice Rosenberg which had its origins in civil law should be applied in a child protection context or whether it would be more appropriate to apply a two-part test that considers only whether there is a serious question to be tried and what interim order would be in the best interests of the child.

[130] Justice Lemon considered the issue in The Children’s Aid Society of the Region of Peel and N.I., 2015 CarswellOnt 10818, 2015 ONSC 4595, [2015] W.D.F.L. 4745, 256 A.C.W.S. (3d) 612:

8 The Society submits that Berry relates to family law proceedings as opposed to child protection proceedings and is therefore distinguishable. I do not find the Society’s submission to be of benefit. Both pieces of legislation require the best interests of the child to be a priority. While I must be guided by the Court of Appeal rather than my colleagues on the Superior Court bench, it is unlikely that much turns on the two or three step test. In Children’s Aid Society of Sudbury & Manitoulin (Districts) v. B. (C.), Justice Gauthier said:

The application of the three part test is to be made within the context of the paramountcy of the best interest, protection and well-being of the child in question. (Para 7).

9 That predominate interest will no doubt determine the second and third step of the three part test in any event. I agree with Ricchetti J. that it seems unsavoury to consider the interests of a child in terms of “balance of convenience,” which might otherwise be appropriate to commercial or civil proceedings.

10 Out of an abundance of caution, however, I shall follow the Court of Appeal’s direction.

[131] I will do the same.

ONE: Is there a serious issue?

[132] In Berry v. Berry, supra, Justice Rosenberg noted that the test to be applied in determining whether there is a serious issue to be tried is not an onerous one.

[133] I have already concluded, in the section of these reasons dealing with Motion #1, the father’s motion to extend time, that the appeal is not without merit. For the same reasons, I conclude that there are serious issues to be tried

TWO: Will there be irreparable harm to the child if the stay is not granted?

[134] In Berry v. Berry, Justice Rosenberg framed this question by considering whether “there would be “irreparable harm to the best interests of the child”. In that case, which was not a child protection case, he considered “maximizing contact” with the father to be in the child’s best interests as well as “minimizing disruption.”

[135] Whether “maximizing contact” with a person is in a child’s best interests is obviously case-specific while the desirability of “minimizing disruption” is of general application and recognized in both s. 1(2) and 37(3) of the CFSA.

[136] In order to determine whether there would be irreparable harm to the best interests of the child if I do not stay the trial judge’s decision, I must, of course, rely not on assumptions or personal views but on the evidence that was available to me.

[137] I have carefully reviewed the affidavits of the father, the aunt and the CAS.

[138] Prior to trial the father had access to the child three times per week, at the discretion of the CAS. This was in accordance with a temporary order of Justice Sheffield dated May 15, 2015, shortly after the child was born. The father’s access to the child was supervised. The aunt and her sister were invited by the CAS to attend access appointments with the father and attended many of the visits on an alternating basis.

[139] The father’s access visits were not trouble-free. The father’s attendance at access visits and his punctuality were both problems identified by the CAS. There was evidence that one of the visits was terminated because the father was crying profusely and appeared disoriented. On another occasion, the father fell asleep. On another occasion the father was reported to have been staggering and his speech was reported to have been slurred. The father explained two of these incidents, which took place in January, 2017, the month before the February, 2017 trial, as having been caused by an adjustment in his methadone dosage which he had made in an attempt to be drug-free at the time of the trial.

[140] In one of its affidavits on the motions before me, the CAS child protection worker noted that the trial judge had accepted the evidence of the foster mother that, when the father’s mental acuity or affect were compromised, it had a deleterious effect on the child and that the child would suffer regression in his behaviour following a visit with the father if the father’s capacity was diminished.

[141] The father’s lawyer conceded that there were problems associated with some of the father’s access visits but submitted that there was only a handful of worrisome visits out of a total of 200.

[142] In his affidavit, the father stated that he and the child have bonded. He stated that he is the only father the child has ever known. The father stated that during his access visits with the child, they would read and play music together, that they would go for walks and play games. The father said that he always changed the child’s diapers, read the communication book and fed the child knowing what the child had already eaten.

[143] The father said that he had attended 75 to 80 per cent of the access visits that were available to him in the pre-trial period even though he was required to commute one hour in each direction to attend the access visits.

[144] The father said that many of the access visits were positive.

[145] The father has not had in-person contact with the child since the middle of April.

[146] In the middle of May, he had a brief and unauthorized encounter with the child through a video cell phone call which I will refer to as “the birthday party incident”.

[147] The birthday party took place at the home of the child’s foster mother.

[148] The CAS had given the aunt permission to attend the party along with her two daughters. The day of the party, at about 12:47 a.m., according to the foster mother’s affidavit, the aunt texted the foster mother to ask whether her sister and her parents could also attend. The foster mother agreed.

[149] During the party, the aunt’s sister allowed the child to have a video call with the father.

[150] [The CAS considered this incident to constitute a breach of trust between the CAS and the aunt and terminated contact between the aunt and the child, subject to any order I may make after hearing this motion. I deal with this incident in more detail, below, where I consider the aunt’s request for access to the child.]

[151] The father referred to the birthday party incident in his affidavit. The father stated that he understood that the call was a breach of a court order but that it had not been pre-arranged. He said that he answered the call, believing that his sister was calling him. He said that the child was excited to see him and that the child “excitingly grabbed the phone and raced off with it, looking into the screen happily saying “daddy, daddy!” over and over again.”

[152] There are similar but not identical accounts of the child’s reaction to the telephone call in the affidavits that were before me. According to the aunt’s affidavit, the child called out “daddy, daddy” [i.e. with no exclamation mark], clearly remembered the father and was happy to “talk” with the father. According to the affidavit sworn by the foster mother and filed by the CAS, the child said “Daddy” and “went back to his cake and all the activity in the room.”

[153] In his affidavit, the father stated that it was evident from the video call during the birthday party that the child knew his face and was excited to see him.

[154] The father said that he believes that it would potentially cause irreversible damage to the child if access pending the appeal were not reinstated; he also said that the child might feel abandoned.

[155] In her affidavit, the aunt said that although she is aware that the father “has serious issues that he has been dealing with” she believes that the father has the capacity to be a good parent to the child. The aunt said that she has witnessed the father providing excellent care to his two older children.

[156] As I noted above, the aunt described the video call between the father and the child and said that the child remembered the father and was happy to talk to the father.

[157] The aunt’s affidavit is otherwise silent with respect to the relationship between the child and the father and its effects on the child.

[158] The affidavit of the CAS child protection worker pointed to several findings the trial judge made regarding the father’s access to the child and said that the CAS takes the position that the child remains at risk of physical and emotional harm as a result of visits between the child and the father and that continuing access visits would not be in the child’s best interest.

[159] In considering whether not staying the trial judge’s order would cause irreparable harm to the best interests of the child, I am concerned about what is not in the affidavits of the father and the aunt.

[160] In his decision, the trial judge said: “In February 2017, [the father]’s drug dependency physician saw fit to make arrangements for [the father] to receive psychiatric evaluation and treatment. Such treatment has yet to begin.” The trial judge also said: “One day, [the father] might achieve remission and stability with respect to his drug dependency. That day has not yet come.”

[161] The affidavits of the father and the aunt were both sworn in June, 2017, two and one half months after the release of the trial judge’s decision.

[162] In paragraph 34(c) of his affidavit, the father referred to progress he “had and continue[s] to make while on methadone treatment.” Other than that one reference, neither the father’s nor the aunt’s affidavit included any information about the father’s post-trial treatment or efforts to achieve and/or maintain sobriety and overall mental health.

[163] In considering whether there would be irreparable harm to the best interests of the child, I have considered the factors listed in s. 37(3) of the CFSA, including the child’s physical, mental and emotional needs, the importance for the child’s development of a positive relationship with a parent, the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity and the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

[164] I have also considered the child’s age.

[165] I have considered that, other than a brief video call encounter in May, there has been no direct contact between the father and the child since April.

[166] Although there was no evidence before me to this effect, my understanding is that a Divisional Court appeal panel will be made available to hear this appeal before the end of the calendar year and likely in October or November.

[167] Because the child is living with the foster mother and because the foster mother will not be adopting him, the child will face some disruption in the future, regardless of the outcome of the motion to stay the trial decision and the appeal.

[168] On the evidence before me, while I do not doubt the statement in the father’s affidavit that he cares deeply about his child or his genuine desire to be a part of the child’s life in the future, I cannot and I do not find that reinstating access to the child for the father would be in the best interests of the child.

[169] As a result, I conclude that would be no irreparable harm to the best interests of the child if the stay is not granted and if access to the father is not reinstated pending the appeal.

THREE: Does the balance of convenience favour a stay?

[170] In Berry v. Berry, Justice Rosenberg said “the balance of convenience in this type of case centres primarily on the best interests of the child.”

[171] As I concluded above that there would be no irreparable harm to the child if the stay is not granted, the balance of convenience does not favour a stay of the order.

MOTION # 5: The father’s motion for access to the child pending the appeal for himself and for the aunt

Disposition:

[172] The father’s motion for access pending the appeal for himself is dismissed.

[173] The father’s motion for access pending the appeal for the aunt is granted.

[174] The CAS cross-motion to dismiss these motions is allowed in respect of the motion for access for the father and dismissed in respect of the motion for access for the aunt.

[175] The aunt also brought a motion for access to the child pending the appeal. Because I dismissed the aunt’s motion to be made a party, I have decided the issue of access pending appeal for the father and for the aunt based on the father’s motions.

Facts:

[176] The facts relevant to Motion #5 in relation to the father’s motion for access pending the appeal for himself are set out in the analysis in respect of Motion #4, above.

[177] The facts relevant to Motion #5 in relation to the father’s motion for access pending the appeal for the aunt are set out below.

• Prior to the trial, the aunt attended a number of the father’s supervised visits with the child.
• The aunt also had several unsupervised visits with the child in the community, including visits that involved her daughters.
• The aunt’s access was not pursuant to a court order; it was at the discretion of the CAS.
• The aunt had presented a plan of care for the child in the fall of 2016 and, according to her affidavit, had understood that the CAS considered her to be an excellent candidate for a kinship placement.
• The aunt’s plan was not assessed by the CAS before the trial because of her separation from her husband in early 2017.
• At trial, the aunt offered to care for and assume custody of the child jointly with the father. She also offered to take full custody, and prevent the father from having any contact with him.
• The aunt’s plan was rejected by the trial judge, largely because of the trial judge’s conclusion that the aunt would not protect the child from the father.
• Following the trial, the CAS terminated the discretionary access it had afforded to the aunt, which was in keeping with the CFSA’s shift in focus after a Crown wardship with no access order has been made away from re-integrating the child into a family and toward adoption.
• Following the trial, the aunt offered to adopt the child, a position the CAS observed was inconsistent with the father’s intention to appeal the trial judge’s decision.
• The aunt’s desire to adopt the child encountered a roadblock when the agency responsible for inter-provincial adoptions that was to conduct the mandatory assessment of the aunt’s suitability to adopt the child concluded that it could not assess the aunt as an adoptive parent before the aunt had been separated from her husband for at least one year, as it would require one year of demonstrated stability before undertaking such as assessment.
• The aunt and her husband had separated in January, 2017, just weeks before the trial. As a result, the CAS was not in a position to assess the aunt as an adoptive parent.
• In March and April, 2017, the CAS arranged for three “good bye” visits between the child and the father, the aunt and the father and aunt’s sister.
• However, as noted above, the CAS, perhaps because the father had served a notice of appeal which effectively put adoption planning for the child on hold, permitted the aunt and her daughters to attend a birthday party in May.
• The birthday party incident, as a result of which the child was permitted to have contact with the father through a video call, is described above and referred to in more detail below.
• On May 19, 2017, the lawyer for the CAS wrote to the lawyers for the father and the aunt, described the birthday party incident as a breach of trust between the Society and the aunt and stated that no further contact between the child and the aunt would be approved “subject to any order that may be made” on the motions before me.

Law and analysis:

[178] Access pending an appeal may be granted under s. 69(4) of the CFSA. (Children’s Aid Society of Toronto v. J.P, 2010 ONSC 3332.) (Although s. 69(4) refers to the “Superior Court of Justice”, because s. 21.9.1 of the Courts of Justice Act provides that appeals of child protection matters heard by the Superior Court are to be heard by the Divisional Court or simply because the Divisional Court is a branch of the Superior Court of Justice, I conclude that a Superior Court judge hearing a motion as a judge of the Divisional Court may make an order for access pending appeal under s. 69(4).)

[179] Where there is a request for access pending an appeal, in order to determine what is in a child’s best interests, there is authority that the court should be guided by a two-point test:

1. There has to be a substantial material change in circumstances affecting the best interests of the child necessitating or compelling such an order from the date of the trial to the date of the appeal; or
2. The judgment of the trial judge was substantially in error contrary to the best interests of the child.

(M.V.B. v. Children’s Aid Society of Ottawa, 2001 28125 (ON SC), [2001] O.J. No. 2264 (S.C.J.))

[180] In Children's Aid Society of Toronto v. P. (J.) 2010 ONSC 3232, Justice Spies considered the two-point test set out above and opted simply to apply a “best interests” test.

With respect to the father:

[181] In reference to the M.V.B. test, supra, there was no evidence before me with respect to a substantial change in circumstances affecting the best interests of the child necessitating or compelling such an order.

[182] Although I did not have the full trial record before me, for the reasons set out under the heading “TWO: Will there be irreparable harm if the stay is not granted?” under Motion #4, above, it does not appear to me that the decision of the trial judge in respect of access to the father was substantially in error.

[183] Consequently, I conclude that an order for access to the father pending the appeal would not be in the best interests of the child.

With respect to the aunt:

[184] The aunt’s access had never been by court order and had always been at the discretion of the CAS.

[185] It is not clear to me that I must apply the test in M.V.B. or whether I need only decide whether access to the child for the aunt pending the appeal would be in the best interests of the child. Out of an abundance of caution, I will apply the M.V.B. test.

[186] Because I have already concluded that the trial judge’s decision with respect to “no access” for the father was not substantially wrong, I will focus only on the first point in the M.V.B. test: Whether there has been (i) a substantial material change in circumstances (ii) affecting the best interests of the child (iii) necessitating or compelling such an order.

(i) Has there been a substantial material change in circumstances?

[187] I find that there has been a “substantial material change”.

[188] The aunt had access to the child before the trial.

[189] Following the release of the trial judge’s decision, the aunt expressed an interest in adopting the child.

[190] The “good bye” visits between the child, the father, the aunt and her sister took place in late March and April.

[191] The CAS and the aunt then learned that the agency that would assess the aunt as an adoptive parent would not do so until one year after the aunt’s separation from her husband, which would not be until early 2018.

[192] On May 5, 2017, the CAS informed the aunt that because this assessment could not be undertaken on a timely basis, it could no longer consider the aunt as an adoptive parent and it would be proceeding to make arrangements for the child to be adopted by someone else.

[193] On May 10, 2017, the CAS informed the aunt that it recognized the aunt’s role in the child’s life that that it would consider openness with her in the event that the child was adopted outside the family.

[194] As a result of birthday party incident, the CAS informed the aunt on May 19, 2017 that she would have no access to the child without a court order.

[195] I consider the birthday party incident and the response to it by the CAS, particularly given the previous willingness of the CAS to consider openness with the aunt in the event that the child was adopted outside the family, to represent a substantial material change in circumstances since the trial.

(ii) Does the substantial material change in circumstances affect the best interests of the child?

[196] I must now consider whether the substantial material change affects the best interests of the child.

[197] In order to determine whether the CAS decision to terminate the aunt’s contact with the child affects the best interests of the child, I must determine whether the access to the child by the aunt was in the best interests of the child.

[198] Despite the manner in which the aunt’s access ended, there was no evidence before me in respect of any pre-trial problems in relation to the access visits of the aunt; the evidence suggested that the CAS was encouraging the relationship between the child and the aunt.

[199] As I noted above, the aunt’s contact with the child included unsupervised community visits and visits that included the aunt’s two daughters.

[200] In her affidavit, the aunt said that to demonstrate her commitment to the child, she had attended access visits with the intention of developing a relationship with the child. She said that her two daughters had had “many” visits with the child. (Other evidence before me suggested that to have said that there were “many” such visits was probably an overstatement.) The aunt said that her daughters had developed a bond with the child; she said, for example, that at the fateful birthday party, the child had run up to the aunt’s younger daughter, calling her by name. The aunt said that she had a positive relationship with the child’s foster mother. The aunt also said that when she and her husband separated, she had moved to an apartment that has four bedrooms, so that there would be room for the child to live with her.

[201] In her affidavit, the aunt also said that the child knows, has bonded with and loves her, her daughters and her extended family.

[202] The aunt described her extended family as follows: “…a large extended family, comprised of educated, hard-working individuals, including: myself (a psychiatric nurse); sister […] (a podiatric nurse entrepreneur); sister […] (a social worker/clinical supervisor/trauma therapist); brother […] ([name of employer] employee); grandfather […] (retired electrical engineer); and grandmother […] (a retired nurse).

[203] The aunt also mentioned in her affidavit that her family had a history of adopting vulnerable children in that her younger brother was the child of her older sister and her parents had adopted the boy and raised him as one of their own.

[204] The evidence of the CAS suggested that it considered the relationship between the child and the aunt to be at least potentially in the best interests of the child and that it was willing to explore whether, depending upon the circumstances including the outcome of the trial, the relationship could become formalized and, depending upon the circumstances, long-term. More specifically:

• The aunt and her sister had been invited to attend access visits between the child and the father, as support persons. The aunt attended some of these visits on an alternating basis with her sister;
• As noted above, the aunt also had approximately three unsupervised visits with the child in the community, some of which her two daughters also attended;
• The CAS had worked with the Montreal agency that was to have conducted an assessment of a kinship placement involving the aunt. This is the plan that was not completed by the time of the trial;
• In March, 2017, following the trial, when the aunt informed the CAS that she would be prepared to adopt the child, the CAS provided the aunt with information relating to adoption so that the aunt could arrange for the necessary assessments;
• Later, the CAS learned that the assessment of the aunt as an adoptive parent could not be conducted for at least one year following the aunt’s separation from her husband. According to the affidavit of the CAS child protection worker, the assessment is mandatory and because it could not be undertaken on a timely basis, the CAS concluded that it could not consider the aunt as an adoptive parent. As of early May, 2017, it appeared to be only the timing of the aunt’s separation that was preventing the CAS from at least considering the aunt as an adoptive parent;[^6]
• On May 10, 2017, the CAS child protection worker wrote to the aunt and informed her that “we do recognize your role in [the child]’s life” and that, should the child be adopted outside the family of the father and the aunt, the CAS would consider openness with the aunt, in other words, it would consider on-going contact between the child and the aunt.

[205] Although most of the evidence suggested that the relationship between the child and the aunt was positive, before I may conclude that the relationship was in the best interests of the child, I must take into account the birthday party incident.

[206] The CAS considered the incident to be serious enough to justify termination of all contact between the child and the aunt. It characterized the incident both as a breach of trust between the aunt and the CAS and as evidence of the validity of one of the concerns of the trial judge, that the aunt likely would not be capable of preventing the father from having contact with the child.

[207] There is no doubt that, because of the “no access” order of the trial judge, the father should not have had contact with the child the day of the birthday party or at all.

[208] Although it was the aunt’s sister who telephoned the father, the aunt’s sister would not have attended the party if the aunt had not arranged for her attendance.

[209] The email from the CAS to the aunt authorizing the aunt to attend the birthday party very clearly informed the aunt that the visit would have to be “for just you and the girls”, in other words only for the aunt and her two daughters.

[210] The email went on to say, “the details can be worked out between you and [the foster mother].”

[211] In the early morning hours of the day of the birthday party, the aunt texted the foster mother to ask the foster mother whether her parents and her sister could also attend the birthday party. The foster mother agreed.

[212] It appears from the aunt’s affidavit that, because she had cleared the attendance at the party of her parents and the sister with the foster mother, she did not appreciate that the CAS would consider it to be inappropriate for the parents and the sister to attend, notwithstanding the CAS’s email which said that the visit would have to be for the aunt and “the girls” only.

[213] It appears that the aunt understood the CAS email which said that the visit would have to be “for just you and the girls” to specifically exclude the father but not to specifically exclude other family members. In her affidavit, the aunt explained that she had understood that the trial judge’s “no access” order had applied only to the father and that it had seemed “natural” to have the other members of the family attend.

[214] In her affidavit, the aunt said that she now understands that “no access” means no contact without the permission of the CAS or a court order.

[215] While there is no doubt that the child should have not have had contact with the father the day of the birthday party and while it is true that the child would not have had contact with the father that day had the aunt’s sister not attended the birthday party, I do not find that the birthday party incident is evidence that the contact between the child and the aunt, which otherwise appeared to have been positive, is not in the child’s best interests.

[216] In reaching this conclusion, I have considered that the aunt and her daughters obviously wanted to travel from Montreal to the foster mother’s home in the Ottawa area in order to attend the child’s birthday party. I have also considered that, although the aunt should have requested permission from the CAS and not from the foster mother for her parents and sister to attend the party, permission which might have been denied, the aunt recognized that permission was required and may not have appreciated that the foster mother was not authorized to grant it. I have also considered the fact that the CAS was willing to permit the aunt and her daughters to have access to the child by attending the child’s birthday party at time when, subject to a successful appeal of the trial judge’s decision, the CAS would be working to find an adoptive home for the child; in other words, it did not appear that the CAS was closing the door on a future relationship of some kind between the child and the aunt.

[217] I conclude, based upon the evidence before me and largely based upon the evidence of the CAS, that the relationship between the aunt and the child was in the best interests of the child and that, therefore, the CAS decision on May 19, 2017, following the birthday party incident, to terminate contact between the child and the aunt was not only a substantial material change in circumstances but also one that affected the best interests of the child.

(iii) Does the change necessitate or compel an order?

[218] I must now decide whether the substantial material change in circumstances necessitates or compels an order for access to the child for the aunt pending the appeal.

[219] The CAS made it clear in its letter of May 19, 2017 that the aunt will have no access to the child unless an order for access is made. The letter concluded as follows:

Given the breach of trust between the Society and [the aunt] resulting from the events of May 17, 2017, my client is not in a position to approve further contact between [the child] and [the aunt] at this time, subject to any order that may be made on June 15, 2017 [the original return date of this motion] in the Divisional Court.

[220] The question I must answer is, then, whether access to the child for the aunt pending the appeal is in the best interests of the child.

[221] Although I have already concluded that the relationship between the child and the aunt was in the best interests of the child, s. 1(2) and 37(3) of the CFSA both refer to the effect of disruption in a child’s life.

[222] I am aware that the child has not had contact with the aunt and her daughters since the middle of May.

[223] My understanding is that the appeal is likely to be heard within the next three to five months.

[224] I believe that it would be disruptive for the child to reinstate access after two months and three weeks only potentially to have it terminated again in short order.

[225] However, the fact that the appeal is likely to be heard within the next three to five months does not necessarily mean that the legal proceedings affecting the child will come to an end in three to five months.

[226] Further, it appears to me that, regardless of the outcome of the legal process, the child and the aunt and perhaps also, through the aunt, the child and the extended family, may have a relationship of some description in the future. Depending upon the outcome of the appeal, the possibilities include joint care and custody between the father and the aunt, a kinship placement with the aunt, adoption by the aunt and adoption by someone outside the child’s family with openness for the aunt.

[227] Because the child’s foster mother will not be adopting him, the child will face disruption in the future. Because of the prospect that the child and the aunt will have a relationship of some kind in the future, I find that reinstating access to the child for the aunt at this time would be in the best interests of the child and, depending upon the outcome of the appeal and, if the appeal is unsuccessful, the adoption process, may even serve to minimize the disruption that will inevitably be caused by the child’s separation from the foster mother.

[228] I am also concerned that if I do not reinstate access to the child for the aunt at this time, thereby extending the period of time that the child has no contact with the aunt, this could have an effect on decisions that are made in respect of the child in the future, decisions that I am not in a position to make.

[229] On balance, I find that reinstating access to the child for the aunt pending the appeal would be in the best interests of the child.

[230] I will order access to the child pending the appeal to the aunt, at the discretion of the CAS, a minimum of once every two weeks.

[231] The discretion of the CAS shall include a decision about whether the aunt’s daughters may attend the access visits.

[232] Although I decided that the aunt should have access to the child pending the appeal despite the birthday party incident, in exercising its discretion, the CAS shall be at liberty to consider the birthday party incident should it have any concerns about the aunt’s willingness or ability to comply with the court orders or CAS directions in the future.

4. SUMMARY OF DISPOSITIONS:

[233] To summarize, my dispositions with respect to the motions before me are as follows:

MOTION #1:

The father’s motion to validate delivery of his notice of appeal or, alternatively to extend time for and validate delivery of the notice of appeal.

[234] The motion is allowed. The associated cross-motion of the CAS is dismissed.

[235] The time to deliver the father’s notice of appeal is extended to the date it was delivered, May 8, 2017, and delivery of the notice of appeal is validated.

MOTION # 2:

The CAS’s motion for summary judgment dismissing the father’s appeal.

[236] The motion is dismissed.

[237] Summary judgment is not available on a motion to the Divisional Court on an appeal under s. 69 of the CFSA.

MOTION # 3:

The motion of the father and the aunt to add the aunt as a party to the proceeding for purposes of the appeal; the aunt’s alternative request for leave to file a notice of appeal as a non-party

[238] The motions are dismissed. The associated cross-motion of the CAS is allowed.

MOTION #4:

The father’s request that trial judge’s decision be stayed pending the appeal

[239] The father’s motion is dismissed. The associated cross-motion of the CAS is allowed.

MOTION #5:

The father’s motion for access to the child pending the appeal for himself and for the aunt

[240] The motion for access to the child for the father pending the appeal is dismissed. The associated cross-motion of the CAS is allowed.

[241] The motion for access to the child for the aunt pending the appeal is allowed. The associated cross-motion of the CAS is dismissed.

[242] The aunt shall have access, at the discretion of the CAS, a minimum of once every two weeks. The discretion of the CAS shall include a decision about whether the aunt’s daughters may attend the access visits.

Justice H.J. Williams

Released: 2017/08/10

[^1]: In his notice of motion the father asked that time be abridged but in the circumstances I believe that he required time to be extended. [^2]: I say “may lose contact” rather than “will lose contact” because the CAS had, at one time, discussed with the aunt the possibility of openness, or continued contact, in the event that the child was adopted outside of the family. [^3]: The CAS referred to Children’s Aid Society of the County of Simcoe v. S.T., 2009 57458 (Ont. S.C.J.) in which the judge appears to have concluded that summary judgment under Rule 38(28) was available in an appeal to Divisional Court. However, it does not appear that Rule 38(4) was brought to the judge’s attention. The CAS relied upon this case to illustrate how summary judgment may be adapted to an appeal and not specifically to suggest that it is authority for the proposition that summary judgment is available in an appeal to the Divisional Court. [^4]: I have been designated by the Associate Chief Justice as a designated judge under Rule 13.03(1). [^5]: Under Rule 1(2) of the FLRs, the FLRs apply to certain family law cases in the Superior Court of Justice, which includes the Divisional Court, but not in the Court of Appeal for Ontario. [^6]: Ironically, although the aunt’s separation has prevented her from being assessed as an adoptive parent, a letter from the Montreal agency that was to have conducted the aunt’s kinship assessment, dated February 7, 2017 and marked as an exhibit to one of the CAS affidavits, indicates that one of the reasons the aunt and her husband separated was that the aunt’s husband did not share the aunt’s commitment to adopting the child.