2010 ONSC 5485
DIVISIONAL COURT FILE NO.: 10-DV-1608
DATE: 2010-10-04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Valin, Ferrier and Rady JJ.
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Appellant
– and –
P.M. (mother)
Respondent
– and –
F.M. (father)
Respondent
D.E. Rosefield, for the Appellant
D.L. Segal, for the Respondent mother
K. Robins, for the Respondent father
D. Dworsky, for the children
HEARD: October 4, 2010
ENDORSEMENT
[1] The respondent P.M. is the biological mother of five children: T.M. (age 14), C.B. (age 11), L.M. (age 8), K1.M. (age 5), and K2.M. (age 3).
[2] The respondent father is the biological father of K1.M. and K2.M.
[3] The Children’s Aid Society of Ottawa (the “Society”) has had a long and continuous history of involvement with the children dating back to October 2003. Between October 2003 and September 2009, the Society obtained five supervision orders under the Child and Family Services Act (the “Act”).
[4] The Society obtained the latest in the series of those orders on September 14, 2009. As a result of numerous breaches of that order by the respondent mother, the Society instituted a status review application under s. 64(8) of the Act and brought a motion requesting an order awarding it temporary care and custody of the five children.
[5] On March 31, 2010, Mackinnon J. issued a temporary order. A formal order has never been issued. We are thus left to determine the terms of the order from the reasons in her endorsement. We conclude that Mackinnon J. made a temporary order granting care and custody of the five children to the respondent mother subject to a number of terms, some of which arguably restrict the custodial rights of the mother.
[6] The Society and the father seek leave to appeal that temporary order. In the event the leave application is successful, then this court should hear and determine the appeal.
[7] The position of the Society and the father on the proposed appeal is that there is reason to doubt the correctness of the order issued by the motions judge on March 31, 2010 because the Act provides no legal authority for dividing “care” and “custody” between a parent and the Society.
[8] Rule 62.02(4) of the Rules of Civil Procedure provide that leave to appeal to this court from an interlocutory order shall not be granted unless:
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[9] The issues raised by the Society are whether it is in the best interests of the children to remove them from the care of their mother pending the disposition of the status review application, and whether the motions judge can give incidents of custody to the Society when imposing terms and conditions of supervision.
[10] There are no conflicting decisions on the matter involved in the proposed appeal. i.e. that the motions judge cannot give incidents of custody to the Society when imposing terms and conditions of supervision. There is consistency throughout the jurisprudence that the proper test to be applied pending the disposition of a status review application is that the child should remain in the care and custody of the person or Society having charge of the child unless the child's best interests require a change.
[11] We note, as well, that there are no decisions that prohibit the type of order the motions judge made in this case.
[12] We find there is no reason to doubt the correctness of the order of the motions judge. Although the motions judge stated in her reasons that the Society was to have “custody” of the children in the areas of health care and education, this was not the actual effect of the order. Rather, the order left the children in the care and custody of the respondent mother, but imposed conditions upon her granting the Society access to the children’s health care and education information and authorizing the Society to take certain related steps.
[13] We find those conditions were reasonable in the circumstances and that they were therefore authorized by ss. 51(2) and 51(3.2) of the Act which allow a court to impose reasonable terms and conditions having regard to the best interests of the children. This interpretation is consistent with the legislative intent of the Act as described in ss. 1(1) and 1(2).
[14] The provisions of Rule 62.02(4)(b) are conjunctive. In order to obtain leave to appeal under that section, a proposed appellant must establish that there is good reason to doubt the correctness of the order of the motions judge and that the proposed appeal involves matters of such importance that, in the opinion of this court, leave to appeal should be granted.
[15] Even if we are incorrect in our finding that there is no reason to doubt the correctness of the order of the motions judge, we conclude that the proposed appeal does not involve matters of such importance that, in our opinion, leave to appeal should be granted.
[16] In this regard, the jurisprudence is clear that matters of importance must involve matters of public importance and matters relevant to the development of the law and the administration of justice. As noted earlier, the Society has had active and continuous involvement with these children for the past seven years. We find that the issues on the proposed appeal are fact driven; they involve matters of particular importance to the litigants. The issues in this case do not raise issues of general public interest.
[17] In addition, the order under review is a temporary order and we are advised by counsel that the trial of the status review can be heard within the next six months.
[18] The motion for leave to appeal is therefore dismissed. There will be no order as to costs.
Mr. Justice G. Valin
Mr. Justice L. Ferrier
Madam Justice H. Rady
Released: October 4, 2010
2010 ONSC 5485
DIVISIONAL COURT FILE NO.: 10-DV-1608
DATE: 2010-10-04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Valin, Ferrier and Rady JJ.
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Appellant
– and –
P.M. (mother)
Respondent
– and –
F.M. (father)
Respondent
ENDORSEMENT
Released: October 4, 2010