WARNING
THIS IS AN APPEAL UNDER THE CHILD AND FAMILY SERVICES ACT 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 Information
Court of Appeal for Ontario
Date: 2017-06-19
Docket: M47375, M47581 and M47785 (C62218)
Panel: Rouleau, Hourigan and Benotto JJ.A.
Parties
Between
Children's Aid Society of Toronto Responding Party (Respondent)
and
V.D. and P.V. Moving Parties (Appellants)
Counsel
V.D., acting in person
P.V., acting in person
Lisa Hayes, for the responding party
Heard: In writing
Decision
Benotto J.A.:
[1] Introduction
A nine-year-old boy has been in child protection for over six years. His biological mother – assisted by the biological father – moves to re-open this court's dismissal of her appeal. For the reasons that follow, I would dismiss the motion and, pursuant to r. 37.16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, prohibit the parents from bringing any further motions in this proceeding without leave.
A. Background
[2] The Child's Apprehension
"Phillip" was born on January 4, 2008 to V.D ("mother") and P.V. ("father"). He was apprehended by the Children's Aid Society of Toronto ("CAS") on May 16, 2011. He was three-years-old. The home from which he was apprehended was described as follows:
[It] had a foul odour and was in a state of pandemonium. Garbage was everywhere and rotting food covered most surfaces … Cockroaches were everywhere.
[3] The Child's Condition
The child was in terrible shape. He was filthy, had not been bathed, and his clothes did not fit. Dr. Leo Levin, a pediatrician, described the child as a "kind of ... feral". He displayed signs of significant delay in all areas of functioning. Dr. Dan Fitzgerald, a child psychologist, found the child's functioning was at the low level and described his situation as "severe neglect". The father has not seen the child since he was apprehended.
[4] Trial Decision
The child remained in the temporary care of the CAS until a trial before Weagant J. of the Ontario Court of Justice. During the 35-day trial, 26 witnesses testified, including Dr. Levin, Dr. Fitzgerald, and Dr. Nitza Perlman, who prepared parenting capacity assessments. The trial judge found Phillip in need of protection and made him a Crown ward. With respect to the father, the trial judge said, "any consideration of [the father] having access, supervised or otherwise, is completely out of the question."
[5] Parenting Capacity Assessment
The trial judge, clearly concerned about what role the mother would play in the child's life, determined that a third parenting capacity assessment should be conducted and appointed Dr. Jean Wittenberg, a staff psychiatrist at the Hospital for Sick Children where he is the head of the Infant Psychiatry Program. In a 76-page assessment report, Dr. Wittenberg concluded that the mother did not have the ability to be a caregiver for Phillip.
[6] Mother's Conduct
Meanwhile, the CAS obtained a restraining order to prevent the mother from harassing the child's foster parents. Dr. Wittenberg testified that the mother's conduct toward him had been harassing as well. Dr. Wittenberg's evidence was consistent with many CAS witnesses in relation to their experiences attempting to work cooperatively with the mother. The trial judge commented:
[T]his pattern of threatening the participants in the legal process is indeed an ongoing theme with [the mother]. In the hundreds of pages of out-of-court communications, submissions and 'motions' that have shown up in my inbox … there are many references to Law Society complaints against a former CAS counsel. I have previously made reference to the number of interlocutory appeals – the 'threat' of appeal persisted in oral submissions until the last court appearance.
[7] Crown Wardship Order
By order dated July 29, 2015, Weagant J. made Phillip a Crown ward with no access to the mother or father, pursuant to s. 57(1)(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA"). This order would permit the child to be placed for adoption.
[8] Superior Court Appeal
The mother, joined by the father, appealed the order of Weagant J. to the Superior Court of Justice, asserting the trial judge was biased, had misdirected himself, and erred in law in numerous respects. On May 10, 2016, Backhouse J. of the Superior Court of Justice carefully reviewed the allegations and concluded there was no merit to the parents' multiple grounds of appeal. The appeal was dismissed.
[9] Court of Appeal Hearing
The parents then appealed to this court. The appeal was heard on December 12, 2016. At the outset of oral argument, the mother, supported by the father, sought various relief, including: (i) a further adjournment of the appeal to afford the appellants time to review the transcripts of the proceeding before Backhouse J., which they claimed to have not received; (ii) additional time for argument of the appeal, namely, 20 hours for the mother and 20 hours for the father; (iii) the appointment of a five-person panel of this court to hear the appeal; (iv) the granting of leave to appeal to the Supreme Court of Canada; and (v) in the case of the father, an order removing him as a named appellant on this appeal to permit him to commence his own appeal.
[10] Appeal Dismissed
The panel declined to grant any of the requested relief. On December 20, 2016, the panel dismissed the appeal on its merits.
[11] Court's Reasoning on Appeal
The child has now been in the care of the CAS for six years, since May 16, 2011. In dismissing the appeal, this court said:
The trial judge's findings about the nature and extent of the neglect that [Philip] experienced over a lengthy period while in [the mother's] care, his needs and the type of parenting that he requires to meet those needs were amply supported by the evidence at trial. The lengthy litigation in this case has prevented permanency and long-term stability in [Phillip's] life and precluded adoption efforts. We agree with the CAS that closure should be brought to this unfortunate chapter in Phillip's life and that he should be placed for adoption without further delay.
B. Motion to Re-open the Appeal
[12] Mother's Motion
The mother now moves to re-open the appeal and have a new trial. She has re-argued all of the matters dealt with before Weagant J., Backhouse J. and this court. In support of her motion, she resumes allegations of bias on the part of the trial judge, misfeasance by the expert witnesses, and defamation against her.
[13] CAS Cross-Motion
The CAS brought a cross-motion to dismiss the motion and to settle the outstanding order dismissing the appeal.
[14] Referral to Panel
The motion came before Epstein J.A. on May 3, 2017. She directed that the mother's motion be heard by a panel in writing "to determine whether the proposed motion to re-open the appeal should be dismissed for delay or as frivolous, vexatious or otherwise an abuse of the process of the court under r. 2.1.02".
C. Analysis
[15] Structure of Analysis
I deal first with the merits of the mother's motion and then consider whether to preclude the parents from making further motions without leave.
(1) Merits of the Motion
[16] Lack of Merit
I would dismiss the parents' motion for two reasons. First, it lacks merit. They seek a third appeal from the order of the trial judge. The mother puts forth the same grounds that have been dismissed twice.
[17] Delay and Child Protection Imperatives
Second, the delay that the mother's actions have caused are damaging to the child and contrary to all of the imperatives of child protection legislation. Matters relating to child protection are to be held to strict timelines, both pursuant to the CFSA and the Family Law Rules, O. Reg. 114/99. The philosophy underlying these strict timelines is basic: the child needs to have clarity, certainty and an opportunity for a future. When, as here, the child qualifies for adoption, every day of delay impacts his chances to join a loving family.
(2) Prohibition Against Further Motions
[18] Considerations for Prohibition
These same considerations impact my determination that the parents must be precluded from launching further motions without leave.
[19] Applicable Rules
The Rules of Civil Procedure provide:
2.1.02 (1) The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
(3) On making an order under subrule (1), the court may also make an order under rule 37.16 prohibiting the moving party from making further motions in a proceeding without leave.
37.16 On motion by any party, a judge or master may by order prohibit another party from making further motions in the proceeding without leave, where the judge or master on the hearing of the motion is satisfied that the other party is attempting to delay or add to the costs of the proceeding or otherwise abuse the process of the court by a multiplicity of frivolous or vexatious motions.
[20] Motion is Frivolous and Vexatious
The mother's motion must be dismissed as frivolous, vexatious and an abuse of process. Her actions in pursuing this matter seriously impact the well-being of the child.
[21] Pattern of Abuse of Process
I am also satisfied, pursuant to r. 37.16, that she is attempting to delay the proceeding by a multiplicity of frivolous motions in this court. There have been multiple motions, orders for extensions of time, and refusals to settle orders. This pattern is a continuation of conduct that ran rampant in the courts below. The record is replete with correspondence, motions, requests, complaints, and activities which have frustrated the resolution of this child's future. She appears to be supported in these attempts by the child's father.
D. Disposition
[22] Order
For the reasons above, I order:
The parents' motion is dismissed (it will not be necessary to deal with the motion by the CAS);
The parents, V.D. and P.V., are prohibited from making further motions in relation to the child protection proceeding, without leave; and
I dispense with the requirement that this order as well as all previous orders of this court be approved as to form and content.
[23] Abandonment Motion
The CAS has brought a motion to dismiss the motion as abandoned (M47581). It will not be necessary to address this motion.
Released: June 19, 2017
M.L. Benotto J.A.
I agree. Paul Rouleau J.A.
I agree. C.W. Hourigan J.A.
[1] I have given the child a pseudonym to avoid the use of initials.
