WARNING
THIS IS AN APPEAL UNDER THE
CHILD AND FAMILY SERVICES ACT
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.
COURT OF APPEAL FOR ONTARIO
CITATION: Children’s Aid Society of Toronto v. T.B., 2013 ONCA 341
DATE: 20130524
DOCKET: C56205
Weiler, Blair and Strathy JJ.A.
BETWEEN
Children’s Aid Society of Toronto
Plaintiff (Respondent)
and
T.B. and S.D.
Defendants (Appellant)
S.D., acting in person
Stephanie Giannandrea, as amicus curiae
Sherri Smolkin for the respondent, Children’s Aid Society of Toronto
Heard and released orally: May 21, 2013
On appeal from the judgment of Justice Victor Paisley of the Superior Court of Justice, dated October 15, 2012.
ENDORSEMENT
[1] The issue before us is whether the Status Court judge, Paisley J., erred in dismissing the appellant’s appeal. The factual background of the case is not in dispute.
[2] On June 4, 2012, Murray J. ordered that the appellant’s two biological children be designated Wards of the Crown and placed in the care and custody of the Children’s Aid Society of Toronto (CAS), with no order for access.
[3] On or about July 4, 2012, the appellant filed a notice of appeal of the order of Justice Murray. As the appeal was not perfected within the time required by the rules, a status hearing was held on September 17, 2012. Counsel appeared and advised that she had been retained to provide an opinion to Legal Aid Ontario and had received transcripts of the hearing before Justice Murray. At the request of the appellant’s counsel, the matter was adjourned to October 15, 2012. On that date the appeal remained unperfected and the appellant was not in court. No lawyer appeared on his behalf. The Status Court judge dismissed the appeal at the request of the CAS.
[4] On the appeal before us, the appellant and amicus contend that the Status Court judge erred in dismissing the appellant’s appeal for delay. In essence they submit that the notice sent to the appellant did not adequately state the jeopardy he was in, namely, that the court could dismiss his appeal from the order making his children wards of the Society. In addition, they submit that in the circumstances Paisley J. erred in exercising his discretion to dismiss the appeal outright. It was open to the Status Court judge to safeguard the appellant’s procedural rights by adjourning the matter to the next Status Hearing so that the appellant could be given notice that his appeal would be dismissed for delay if he did not attend. Further, amicus submits that the strength of an appeal is a consideration in deciding whether it should be dismissed. In dismissing the appeal, the Status Court judge did not turn his mind to the possibility that the appellant would seek to introduce fresh evidence. Finally, the appellant and amicus submit that summary judgment should be granted only sparingly and the appellant ought to have an opportunity to present evidence at a trial.
[5] We agree that the notice to attend the status hearing did not clearly state that the appeal could be dismissed for delay if the appellant did not attend and that it ought to have done so. Procedure is important in ensuring fairness as well as the appearance of fairness. However, no useful purpose would be served by remitting the case back for reconsideration. We have reviewed the decision of Murray J. and have determined that there is no appealable error in her decision. While amicus raised a number of issues that appear to be of general concern to the profession, it is not necessary for us to deal with them here. The reasons of Murray J. make it abundantly clear why the wardship order was made and should be sustained. We have no application to admit fresh evidence before us, nor has there ever been any indication that such an application would be forthcoming.
[6] Accordingly, the appeal is dismissed.
“K.M. Weiler J.A.”
“R.A. Blair J.A.”
“G.R. Strathy J.A.”