W A R N I N G
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:
- (7) The court may make an order,
(a) excluding a particular media representative from all or part of a hearing;
(b) excluding all media representatives from all or a part of a hearing; or
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
CITATION: A.M. v. Chatham Kent Integrated Children's Services, 2007 ONCA 411
DATE: 20070601
DOCKET: C46367
COURT OF APPEAL FOR ONTARIO
ROSENBERG, GILLESE and LANG JJ.A.
BETWEEN:
A.M
Applicant (Appellant)
and
CHATHAM KENT INTEGRATED CHILDREN’S SERVICES
Respondent (Respondent in Appeal)
and
N.M.
Respondent (Respondent in Appeal)
Ian Mang for the appellant
Catherine Bellinger for the child
Barry Tobin for the respondent, Chatham Kent Integrated Children’s Services
Heard: May 22, 2007
On appeal from the order of Justice Terrence L.J. Patterson of the Superior Court of Justice, dated November 17, 2006 allowing an appeal from the order of Justice M.A. McSorley of the Ontario Court of Justice, dated July 4, 2006.
ENDORSEMENT
[1] This appeal seeks to suspend a final order for adoption by challenging the validity of the underlying Crown wardship order. The appeal is from the order of Patterson J., which allowed an appeal from the order of McSorley J. McSorley J. had granted the appellant status as a parent to move to set aside the Crown wardship order.
[2] F.M. was apprehended by the Chatham Kent Children’s Aid Society (CAS) in January 2004, one day after his birth, because his mother was unable to provide for his care.
[3] On January 16, 2004, the CAS obtained an order for Society wardship with access to F.M.’s mother. When his mother did not regularly exercise that access, the CAS amended its application in July 2004 to seek Crown wardship without access. The material in support of the applications disclosed that F.M.’s father was unknown, but he was one of two men - one of whom was the appellant, A.M..
[4] In October, 2004, the CAS brought a motion for summary judgment on its Crown wardship application. Glenn J. made the necessary finding that F.M.’s paternity was unknown, granted the motion, declared F.M. a Crown ward and denied access to F.M.’s mother.
[5] Three months later, in January, 2005, F.M.’s mother emailed the appellant telling him that he was F.M.’s father. At that time, F.M.’s older brother, D., lived with the appellant. When the appellant heard that he had another son, he contacted the CAS and sought to determine whether he was F.M.’s father. He told the CAS that, if he was, he planned to have F.M. live with him and D.
[6] In response to the appellant’s enquiries, the CAS told him that F.M. was a Crown ward without access and that he was eligible for adoption. The CAS urged the appellant to seek legal counsel and offered to put the adoption process on hold so that the appellant would have the opportunity to prove his paternity. The CAS gave the appellant until March 31 to do so.
[7] When the appellant advised the CAS that he could not afford the paternity tests, the CAS agreed to assume that expense. In May 2005, the tests established the appellant’s paternity and the CAS notified the appellant of that result.
[8] In June, the CAS arranged for a home study and a parenting capacity assessment to determine the appellant’s ability to parent F.M. It reiterated its advice to A.M. that he retain independent legal counsel. By this time, although the appellant did not give this information to the Chatham Kent CAS, D. was not living with the appellant, but was in the care of the Simcoe CAS.
[9] On July 12, in response to a communication from the CAS about the proposed parenting assessments, the appellant emailed the CAS telling it to postpone both the home study and the assessment. He also requested a change in jurisdiction to accommodate his proposed move to Newfoundland, where he said he was moving in order to be with his fiancé.
[10] By this time, the CAS had received further information about the appellant, including the information that D. was in CAS custody; the appellant had a pattern of frequent moves; earlier investigations raised concerns about the appellant’s ability to care for D.; and, the appellant had an anger management problem.
[11] As a result of this information, the CAS wrote the appellant a lengthy letter on July 21. The letter reviewed the appellant and F.M.’s history with the CAS, noted that D. was then in CAS care and stated in the clearest possible terms that the CAS would not support the appellant’s plan for F.M. or his request for a change in jurisdiction to Newfoundland. By way of further explanation, the CAS noted that the appellant had not told the CAS until July of his intended move to Newfoundland even though he had made that plan in March and he knew that the plan would affect an assessment of his ability to parent F.M. After concluding that the appellant was unable to provide F.M. with the needed stability, the CAS notified the appellant that it would move as soon as a suitable match could be found to place F.M. for adoption. In view of that plan, the CAS cautioned the appellant to proceed with any motions as soon as possible and again cautioned him to obtain legal advice. In concluding its letter, the CAS told the appellant about a proposed legislative change that may allow for contact between a father and an adopted child. The CAS copied this detailed letter to the lawyer whom the appellant had consulted.
[12] From this letter, the appellant would not have been in any doubt about the CAS plan to proceed expeditiously regarding F.M.’s future care.
[13] The CAS heard nothing for several weeks. Finally, on September 11, the appellant wrote the CAS advising that his lawyer would soon be bringing a motion for access. On September 22, the CAS again wrote the appellant, copied to the appellant’s lawyer, saying that it had received no such motion and that it would proceed to place F.M. for adoption on October 3 and, thereafter, to finalize the adoption.
[14] The CAS received no response until September 28 and 29, when the appellant advised that he would file a motion on October 3, the deadline given him by the CAS and which he obviously appreciated was the critical date. Nonetheless, October 3 came and went and the CAS heard nothing further from the appellant.
[15] Accordingly, the CAS placed F.M. for adoption. After F.’s placement, the appellant filed a motion on October 11 seeking to set aside the October 2004 Crown wardship order on the basis of inadequate notice. On the return of the appellant’s motion on November 10, the agent for the appellant’s counsel consented to a withdrawal of this set aside motion, without prejudice to the appellant being able to bring a motion for a status review. In the course of the November 10 appearance, the CAS notified the appellant that F.M. had already been placed for adoption and queried the court’s jurisdiction to hear the proposed status review application.
[16] The CAS heard nothing further from the appellant and proceeded to finalize the adoption, a separate proceeding from that of F.M.’s protection proceeding. The adoption hearing was scheduled for December 23. On December 22, 2006, the appellant’s counsel served an application for status review on the CAS. While the application was styled as an application for status review, the prayer for relief also sought to set aside the Crown wardship order. Neither the appellant nor his lawyer alerted the caseworker that this application would be filed at this late date and it did not come to the caseworker’s attention on December 22. The next morning, December 23, the adoption hearing proceeded as scheduled and the adoption order was granted.
[17] Subsection 157(1) of the Child and Family Services Act, R.S.O. 1990, c. C.11, provides as follows:
An adoption order under section 146 is final and irrevocable, subject only to section 156 (appeals), and shall not be questioned or reviewed in any court by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, habeas corpus or application for judicial review.
[18] In our view, in light of s. 157(1), this appeal cannot succeed in the circumstances of this case. We say this for the reasons that follow.
[19] First, as is conceded by the appellant, the appellant was precluded by s. 64(9) from bringing a status review application after F.M. had been placed for adoption on October 3, 2005.
[20] Second, pursuant to s. 157(1), the final adoption order precluded the hearing of any set aside motion.
[21] While we refrain from determining whether a motion to set aside could succeed in different circumstances, we are of the view that it certainly cannot in the circumstances of this case.
[22] There was no persuasive evidence that the CAS deliberately misled the appellant in any way or that it deliberately ignored the December 22 material or took any steps to halt the adoption hearing for the purpose of circumventing a set aside hearing. We do not agree with the appellant’s characterization of the CAS conduct in this case as “fraud”, a characterization made for the first time at the appellate level. In any event, we see no foundation for that allegation.
[23] In our view, the CAS acted entirely within its mandate in fulfilling its obligation towards the child. Moreover, it dealt fairly with the appellant because it gave him adequate warning of its intention to place the child for adoption and to proceed to finalize the adoption. It gave the appellant a reasonable opportunity to put forward a parenting plan and to move to set aside the Crown wardship order. Indeed, on September 22, the CAS specifically advised the appellant about the October 3 placement date. When the appellant failed to move in a timely fashion, the CAS acted properly and in the child’s interests, as it was bound by statute to do, in proceeding with F.M.’s adoption.
[24] In those circumstances, there is no basis upon which to set aside the adoption order.
[25] Third, for the reasons set out above, even assuming for the purpose of this argument that the court has inherent or parens patriae jurisdiction to intervene to set aside the Crown wardship order, this case did not present the circumstances in which it would be appropriate to do so. The appellant had several opportunities to challenge the Crown wardship order had he moved promptly. This is not a case where a gap in legislation prejudiced the best interests of the child.
[26] In the circumstances, we would make no order regarding the costs of this appeal.
RELEASED: M.R. “M. Rosenberg J.A.”
JUN 01 2007 “E.E. Gillese J.A.”
“S.E. Lang J.A.”