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: 2018-02-28

Docket: M48723

Motion Judge: Feldman J.A.

Parties

Between

Valoris for Children and Adults of Prescott-Russell Respondent (Respondent by Appeal)

and

C.A.T. Applicant (Appellant by Appeal)

Counsel

Alexandre Martel, for appellant

Sophie Côté-Langlois, for the respondent

Heard: February 15, 2018 in writing

Reasons for Decision

Extension of Time Application

[1] The applicant mother seeks an extension of time to file her notice of motion for leave to appeal the Order of the Divisional Court, dated November 24, 2017. That order dismissed her appeal from Justice Rogers's order dated June 29, 2016, making her child a Crown ward with no access for the purpose of adoption.

[2] According to rule 61.03.1(3) of the Rules of Civil Procedure, the applicant's Notice of Motion for Leave to Appeal should have been filed and served 15 days after the Divisional Court's decision. Instead, she served and filed it 26 days after that decision.

[3] The applicant explains that the delay was attributable to attempts to secure financing for the appeal, her need to find appeal counsel and then appeal counsel's illness during the relevant time.

[4] The applicant argues that she would suffer great prejudice if a procedural irregularity finally decided the matter of her relationship to her child.

[5] The respondent children's aid society opposes the extension of time. It challenges the assertion that the applicant always intended to seek leave to appeal, as neither she nor her counsel contacted the society before filing the late notice of motion for leave to appeal. However, its primary position is that the appeal has no chance of success. The child was apprehended four days after his birth in July 2013, and has been with his current foster family since December 2014. This is the only family that this young child (age 4) has known. He has bonded with the family and the family wants to adopt him.

Legal Test for Extension of Time

[6] As explained in R. v. Menear (2002), 162 C.C.C. (3d) 233 (Ont. C.A.), a party seeking an extension of time must demonstrate that justice requires that time be extended. The court will usually consider the following three factors in determining whether an extension of time is in the interests of justice:

(i) has the applicant shown a bona fide intention to appeal within the appeal period;

(ii) has the applicant accounted for or explained the delay; and,

(iii) is there merit to the proposed appeal.

[7] In considering whether to grant any extension of time, the court always considers the justice of the case, and in proceedings where an order is made that affects a child, the best interests of the child.

Application of the Test

[8] Although the society was not contacted before being served late with the motion material, the mother has explained that she had a bona fide intention to appeal since receiving the decision and she has accounted for the delay. The real issue is whether there is potential merit to the application for leave to appeal and the justice of the case. The merit of the proposed leave to appeal application is highly relevant both because time extensions must be justifiable, and because extending timelines for an appeal that appears to have no chance of success benefits no one.

Trial and Divisional Court Findings

[9] The trial lasted two weeks and the court heard from 31 witnesses including 5 expert witnesses. The trial judge accepted that "The mother is an intelligent, independent minded and functioning woman, with a rather complicated mental health history". However, he also accepted the evidence from society workers and from the assessing psychologist that she lacked insight into the child's needs and would not be able to meet those needs "in a sufficiently consistent manner". She also lacked insight into her shortcomings and "lacked demonstrated efforts to improve her shortcomings." Based on those findings, the trial judge concluded that the child was in need of protection on the basis of real risk of physical harm from the mother's failure to "adequately care for, supervise and protect the child." The trial judge ordered Crown wardship with no access, to facilitate the child's adoption by the foster parents, who are prepared to adopt him and are the only family he has known.

[10] In the Divisional Court, the applicant raised six grounds of appeal, all of which were specifically considered and rejected by the court:

1. the trial judge erred by finding the child in need of protection;
2. the trial judge erred by accepting the opinion of the psychologist assessor;
3. the trial judge erred by putting too much weight on the applicant's historical mental health issues;
4. the trial judge erred by substantially disregarding evidence of a likelihood of positive change;
5. the trial judge erred by placing undue weight on the applicant's failure to co-operate with the society; and
6. the society did not adequately seek an alternate placement in the community before resorting to a Crown wardship plan.

[11] On the sixth issue, the Divisional Court in its reasons stated that it had reviewed the trial transcript of the various witnesses who spoke to that point, and accepted the trial judge's conclusions that the society had made reasonable efforts. The court then noted at paras. 13-14:

The mother was clearly opposed to placing the child with members of her family, who also did not come forward to present a plan. The mother was aware that she could have presented a plan from someone in her community, but this too did not result in the actual presentation of a plan for the child.

It is evident that Valoris has been unable to find a plan for the child that will necessarily encompass the mother's unique combination of Hare Krishna faith lived in the context of a Catholic community, despite their efforts to do so. This, however, is only one factor to be considered in determining what is in the child's best interests. In choosing a foster home and a future permanent home, Valoris attempted to meet this factor by finding a placement in the mother's chosen Catholic faith community.

[12] The Divisional Court finally concluded at para. 17:

With respect to his findings of fact and the application of those facts to his conclusion, we cannot find any palpable or overriding error. There was ample evidence for him to conclude that an order for Crown wardship was the only viable plan that would protect this child and be in his best interests. For these reasons, the appeal is dismissed.

Proposed Leave to Appeal

[13] The applicant seeks to raise some of the same issues on her proposed leave to appeal application to this court. She also submits that the Divisional Court's reasons were not sufficient and seeks to raise again the issue of a community placement for the child, when Rogers J. found at paras 93 and 94 of his reasons:

The mother's plan is to care for the child on her own with some assistance from her friends and various governmental programs.

No community or family plans were presented to the Society or the Court. I am satisfied that the Society made reasonable efforts in this regard.

[14] Leave to appeal applications are decided by a panel of the court based on written submissions. While the test for granting leave to appeal from a decision of the Divisional Court is governed by the test set out in the case of Re Sault Dock Co. Ltd. And City of Sault Ste. Marie, [1973] 2 O.R. 479, in child protection matters, the justice of the case and the best interests of the child will be the overriding considerations.

Decision

[15] While the applicant sincerely wants to have her child or at least to have him in her community, following a full trial, a judge has found, upheld on appeal, that the child is in need of protection and that it is in his best interests to be made a Crown ward with no access so that he can be adopted by the family with whom he has lived for most of his life. There is no basis raised in the written material before the court that suggests that those courts erred in law or that the best interests of the child have been misapprehended.

[16] As I see no potential merit in the leave to appeal application, the motion for an extension of time to apply for leave to appeal is dismissed. In the circumstances, there will be no costs of the application.

K. Feldman J.A.