Court File and Parties

Court File No.: 98/13 Date: February 28, 2013 Ontario Court of Justice

Between: The Children's Aid Society, Region of Halton Applicant,

— AND —

W.P.

Before: Justice R. Zisman

Heard on: February 28, 2013

Written Reasons for Judgment released on: March 14, 2013

Counsel:

• Diane Skrow for the applicant society
• W.P. on his own behalf
• Kristen Knoepfli for the Office of the Children's Lawyer, legal representative for the child

Reasons for Judgment

Zisman, J.:

Introduction

[1] The Respondent, W.P. ("father") filed a Form 14B Motion requesting that the time for him to serve and file an Application for an Openness Order be extended.

[2] The Form 14B and supporting affidavit although sworn January 10, 2013 were not filed with the court until February 10, 2013 and then were not brought to the attention of myself until February 26, 2013 when the father personally attended in court. No explanation was provided with respect to the delay of filing this motion.

[3] I adjourned the motion to February 28, 2013 in order that counsel for the Society could be present.

[4] The father was assisted by duty counsel who submitted that as set out in the motion the father was seeking to extend the time to file his Application for an Openness order pursuant to Family Law Rules 2(2), 2(3) and 14(10).

Background Facts

[5] The father was served with a Notice of Intention to Place a Child for Adoption and a Notice of Termination of Access on December 11, 2012.

[6] On January 10th, 2013, the father attended at this courthouse and attended with counsel at the Family Law Information Centre. A typed Form 14B and supporting affidavit were prepared by duty counsel at the Family Law Information Centre on behalf of the father. In support of his request for an extension he deposes that he contacted a lawyer to assist him in preparing an Application for an Openness order but the lawyer was not available to see him before the expiry of the 30 days and therefore he was requesting an extension of 4 to 6 weeks to meet with counsel to review and complete the Application.

[7] The duty counsel who assisted and prepared the father's materials was in court and advised me that the father was told he only had 30 days to serve and file his Application. When questioned as to why then a Form 14B was prepared she responded that sometimes litigants do not follow the advice of duty counsel.

Analysis

[8] Although subrule 3(5) and (6) of the Family Law Rules permit a court to lengthen the time set out in the rule or an order, it does not permit a court to lengthen a prescribed time limit nor can a court use subrule 2(2) or (4) or 14(10) of the Family Law Rules to do so. Although this seems obvious, it appears that counsel who assisted the father in this motion was not aware or did not direct her mind to this issue.

[9] The father was served with a Notice to terminate his access on December 11, 2012. The Notice is clear that he was required to act within 30 days or his access order would end and he will not be allowed to apply to the court for any order to have contact with his child.

[10] When the father attended at this courthouse on January 10th, 2013 he was still within his time limit. He should have been provided with a blank Application for an Openness order if he did not have it and advised to immediately serve it on the society and file it with the court. All of this could have and should have been done that day.

[11] The submission of duty counsel that he was told he needed to do this but chose instead to file a Form 14B motion makes no logical sense. Instead the father was led to believe that he could simply ask the court for an extension. I note that the Form 14B and affidavit were even faxed to the society by duty counsel.

[12] If duty counsel advised the father that the court had no jurisdiction to extend the 30 day filing deadline and that if he did not serve and file his Application that day his access would be terminated and he would be unable to apply for ongoing contact with his son, why would the father then ask the court to extend the time to file his Application.

[13] I draw the logical inference that the father was not provided with the proper legal advice when he attended in this courthouse. As a result he has lost any ability to permit this court to adjudicate on the issue of his ongoing access to his son.

[14] As there is no jurisdiction enabling the court to extend the time to serve and file an Application for an Openness Order the motion for an extension is dismissed.

[15] I wish to note that Ms Knoepfli was coincidentally present in court today on another matter and advised the court that she had been appointed by the Office of the Children's Lawyer when the child was served with the Notice. She advised that she obtained full co-operation from the society with respect to arranging to meet with the child and with file disclosure. On behalf of the child, she determined that she would not commence an Application for an Openness Order on his behalf. At least with respect to the child's rights it appears that they were properly and expeditiously reviewed within the statutory time limits.

[16] Although I have no information about the merits of this case, I infer based on the position of Ms Knoepfli that the father may have not been successful in his application in any event. Nevertheless, that is no comfort to the father.

[17] The father was advised that his only recourse at this time is to attempt to pursue an openness agreement, pursuant to subsection 153.6(2) of the Child and Family Services Act that provides that an agreement to be made at any time before or after an adoption order is made.

Order

[18] The Form 14B motion is dismissed.

Released: March 14, 2013

Signed: "Justice Roselyn Zisman"