WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:
45(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.
45(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.
45(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. L.T., 2016 ONCA 146
DATE: 20160224
DOCKET: C61082
Hoy A.C.J.O., Lauwers and Hourigan JJ.A.
BETWEEN
The Children’s Aid Society of Toronto
Respondent
(Applicant)
and
L.T. and E.U.
Appellants
(Respondents)
Reide Kaiser, for the appellant father
Caroline Handelman, for the respondent, Children’s Aid Society of Toronto
Catherine Bellinger and Herschel Gold, for the respondent, Office of the Children’s Lawyer representing the Child
Heard: February 16, 2016
On appeal from the order of Justice Frances P. Kiteley of the Superior Court of Justice, dated August 27, 2015.
Lauwers J.A.:
[1] The motion judge issued an order dismissing, for delay, the appeal of the parents from the order of S.B. Sherr J. of the Ontario Court of Justice in a child protection proceeding under the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended. The trial judge issued his decision on June 19, 2014, which is reported at 2014 ONCJ 299, 45 R.F.L. (7th) 413.
[2] The parents appeal the motion judge’s order on the basis that she did not consider and apply all the elements of the test for dismissing an appeal for delay, particularly the merits of the appeal.
The Factual Context of the Underlying Appeal
[3] The trial judge heard extensive evidence over a number of days. His order and concluding comments, at paras. 270-271, set the stage for this appeal:
Final orders shall go on the following terms:
(a) The statutory findings for the child pursuant to subsection 47 (2) of the [Child and Family Services] Act are made as set out in the Statement of Agreed Facts filed as exhibit 14 at trial.
(b) The child is found to be in need of protection pursuant to sub-clauses 37 (2) (b) (i) and (ii) of the Act and clauses 37 (2) (g) and (i) of the Act.
(c) The child is made a Crown ward.
(d) The parents have no right of access to the child.
(e) The child has a right of access to the parents on the following terms and conditions:
(i) Access shall take place once each month plus whatever other access the society agrees to, in consultation with the child and the caregivers.
(ii) Access shall not take place for one month following the release of this decision.
(iii) Access shall be fully supervised by the society.
(iv) The society will have the discretion to terminate or suspend any visit if, in the society's view, the parents act inappropriately.
It was very clear to the court how much the parents love their child and how painful this process has been for them. While they will be understandably disappointed by this decision, they still have an important role to play right now in their daughter's life. It is important that they continue to express their love for the child, be present in her life in a constructive way and accept the decision that she will be raised by the caregivers. It will be invaluable to the child if they do this and the quality of the parents' future relationship with the child will likely depend on how well they are able to do this. This involves placing the child's emotional needs ahead of their own needs. I wish them the best.
[4] The parents appealed the order to the Superior Court of Justice on a timely basis but had great difficulty in perfecting the appeal.
The Children’s Aid Society’s Motion to Dismiss for Delay
[5] The motion judge heard the Children’s Aid Society’s motion to dismiss the appeal for delay a few weeks before the appeal was to be heard on the merits on September 17, 2015. The prospect of such a motion was before the parties and was discussed at case conferences. The first such motion had been brought by the Society on April 20, 2015, but was adjourned at the parents’ request then, and again adjourned on May 19, 2015 at the request of the Society. The motion before the motion judge was a new one based on updated material. The parents were self-represented. The motion judge refused their request for a week’s adjournment to give them time to prepare to argue the motion.
[6] The test for dismissing an appeal for delay in civil actions was succinctly stated by Weiler J.A. in Paulsson v. Cooper, 2010 ONCA 21, at para. 2:
The factors a court should consider in deciding whether to grant this type of motion are well-known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.
[7] An added element in family cases involving children is the effect of delay on the best interests of the child. Stability and finality in custody issues are very important for children, especially younger children, and this too must be taken into account is assessing delay: see D.G. v. A.F, 2014 ONCA 436, at paras. 17, 33-34, citing the Children's Law Reform Act, R.S.O. 1990 c. C.12, s. 19(a), and Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13.
[8] The parents assert the following facts, the accuracy of which is not seriously disputed:
The parents demonstrated a clear intention to appeal. Unfortunately, the trial transcript was not available for about one year after they served their Notice of Appeal. It was impossible for the Parents to perfect the appeal until the transcript was complete. The Parents did everything within their financial abilities to move the appeal forward. Difficulties with legal aid, strict financial limitations, and the court reporter were the main causes of the delay.
[9] The parents also submit that the motion judge breached their right to a fair hearing by denying their request for a week’s adjournment before hearing the Society’s motion. The parents justified their request on the basis that they had three business days’ notice of the motion, their primary language is Hungarian, and they had limited financial resources, having been denied Legal Aid.
[10] In her reasons for dismissing the appeal, the motion judge noted that there was no prospect that the appeal then scheduled for about three weeks later could proceed because there was no appeal record, no certified copies of transcripts and no factum. The inevitable need to adjourn the scheduled appeal date would obviously have led to more delay.
[11] The motion judge focussed on the delay in perfecting the appeal:
As indicated, the motion by the Children’s Aid Society, supported by the OCL is not based upon the lack of merit, but focuses on delay. I observe only that having read the very detailed 52-page judgment and the one and one-half page document called factum, it indicates disagreement with facts. There is no indication of errors in law.
[12] The motion judge also noted that “there is prejudice to this child to deprive her of the right to permanency planning (sic).”
[13] The parents’ document considered by the motion judge set out 13 grounds of appeal, none of which was a legal ground. They were essentially challenges of factual determinations made by the trial judge which the parents disputed.
Discussion
[14] Child protection proceedings leading to a Crown wardship order are very difficult for all concerned. The burden falls particularly heavily on parents who stand to lose their child. Where an appeal is being actively pursued in a child protection case, every reasonable effort should be made to accommodate parents who are self-represented. In this instance the parents were representing themselves and were hampered by financial difficulties, a language barrier and by an inability to respond fully to the requirements of the rules of the court.
[15] Counsel for the parents argues that the motion judge did not turn her mind to the merits of the appeal, since she did not refer to them in her reasons.
[16] Counsel for the respondents submit that the motion judge did consider the merits, despite the wording of her oral decision. She was well familiar with the case, having case-managed it, and she had read the trial decision. She adverted to the need for stability in the best interests of the child.
[17] In my view, this uncertainty about whether the motion judge considered the merits is regrettable. It would have been preferable for the motion judge to have explicitly addressed the elements of the test for dismissing an appeal for delay, and especially the merits of the case before making her ruling, in light of its consequences.
[18] In oral argument on the appeal, the court asked counsel for the appellants to address the merits of the appeal from the trial decision.
[19] Counsel asserted that the positive elements in the evidence of the parents were compelling, particularly with reference to the preservation of the child’s Hungarian language and culture. The foster parents are not Hungarian.
[20] In addition, counsel argued that the trial judge chose to prefer the evidence of the social workers over the evidence of the parents. In particular, the parents complained that a list of concerns about parenting put forward by the child was really authored by the Society, which had undue influence over the child.
[21] Further, counsel submitted that the trial judge erred in finding that the parents would be unable to comply with the access order, even though that finding was based on their previous conduct at the access center.
[22] The parents’ challenges were all fact-based. In the end, counsel was unable to point to a legal error made by the trial judge. He was also unable to point to any alleged error in the trial judge’s fact-finding that he could characterize as a palpable and overriding error. An appeal is not a retrial.
[23] Assuming, without deciding, that the motion judge did not fully consider the merits of the appeal, I have done so and conclude that the appeal has no merit. Accordingly, the motion judge’s refusal of an adjournment therefore had no effect on this inevitable outcome.
[24] The situation that confronts the court on this appeal is that another six months have passed in the life of this child. On the date this appeal was argued, she was just over 11 years old, and had been in the continuous care of the foster family since August 2013, about two and a half years. The child has indicated a desire to be adopted by the foster parents, and the pendency of this appeal is an obstacle. It is in the child’s best interests to bring these proceedings to a close, and give the trial judge’s order an opportunity to work.
[25] In the circumstances, I would dismiss the appeal, without costs.
Released: February 24, 2016 “AH”
“P. Lauwers J.A.”
“I agree Alexandra Hoy A.C.J.O.”
“I agree C. W. Hourigan J.A.”