SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-59-12
DATE: 2013-02-14

Parties

RE: The Children’s Aid Society of the Regional Municipality of Waterloo, Respondent on Appeal and Cross-Appellant

AND:

L. M., Appellant and Respondent on Cross-Appeal

AND:

A. M., Respondent on Appeal and Cross-Appeal

AND:

Lawyer for the Children, Respondent on Appeal and Cross-Appeal

BEFORE: The Honourable Mr. Justice D. A. Broad

COUNSEL:
Charu Smith, for The Children’s Aid Society of the Regional Municipality of Waterloo

Brigitte Gratl, for L. M. and A. M.

Phaedra Klodner, for the Lawyer for the Children

HEARD: February 13, 2013

ENDORSEMENT

[1] The Appellant mother L. M. (the “mother”), and A.M., who is a brother of the three children who are the subjects of this proceeding (the “children”), and who is a Respondent to the Society’s cross-appeal, and in support of the mother’s appeal, have each moved for a stay of the Society’s cross-appeal. The cross-appeal is from the Judgment of Justice McSorley of the Ontario Court of Justice insofar as it granted access to the mother and older siblings of the children, including A., to the children, who were made Crown wards.

[2] The moving parties seek the stay until the happening of two events:

1. The disposition of the mother’s appeal to the Court of Appeal of the summary dismissal of her appeal in this proceeding at the Assignment Court on November 30, 2012; and

2. the disposition of Adam’s appeal to the Legal Aid Appeal Committee in Toronto from the decision of the local Legal Aid Committee denying him funding to retain counsel to respond to the Society’s cross-appeal and the mother’s appeal and his retention of legal counsel for that purpose.

[3] Following a 62 day trial, Justice McSorley ordered that the children be made Crown wards, with access to the mother and older siblings on the terms set forth in her Judgment.

[4] At the October 26, 2012 Assignment Court, Justice Glithero adjourned the matters to the November 30, 2012 Assignment Court, at which time he directed counsel for the mother to furnish written confirmation as to when each of the transcripts would be ready.

[5] At the Assignment Court on November 30, 2012, Justice Taylor dismissed the mother’s appeal as he was not satisfied that it was being pursued with diligence.

[6] Counsel for the mother advises that there were, and remain, problems with the mother obtaining necessary legal aid funding for preparation of the transcripts of the lengthy trial.

[7] The mother has appealed the dismissal to the Court of Appeal, however, that appeal has not, as yet, been perfected, pending receipt of the transcript of the proceeding before Justice Taylor. Counsel for the mother advises that that transcript was ordered on December 14, 2012.

[8] Meanwhile, Adam’s application for a legal aid certificate, in order to respond to the Society Cross-Appeal and to respond in support to his mother’s appeal, was denied, and he has filed an appeal of that decision to the Legal Aid Appeal Committee in Toronto. He is awaiting receipt of its decision.

[9] The parties are agreed that the test for the determination of whether a stay should be granted, is as was set out by Justice Gauthier in the case of Children’s Aid Society of the Districts of Sudbury and Manitoulin v. S.B. 2006 14961 (ON SC), [2006] O.J. No. 1808 (S.C.J.) at para. 14, as follows:

(1) an assessment of the merits of the case to ensure that there is a serious issue to be tried; (2) an assessment of whether the applicant would suffer irreparable harm if the stay is refused; and (3) an assessment as to which of the parties would suffer greater harm from the granting or the refusal of the remedy pending a decision on the merits.

[10] As Justice Gauthier went on to state at para. 15, this test is to be applied within the context of the paramountcy of the best interests, protection and well-being of the children.

[11] The parties are agreed that, in the context of this case, the first prong of the test relates to the appeal before the Court of Appeal, and not the underlying appeal from the decision of Justice McSorley. It is not necessary to find that the appeal has merit, or is likely to succeed, but only that there is a serious issue to be determined. As indicated by Justice Ricchetti in Children’s Aid Society of the County of Bruce v. D.J. [2011] ONSC 5493, the first prong does not involve a heavy onus and the moving party must simply demonstrate that the appeal is not frivolous and there is arguable merit on one or more grounds of the appeal. I am satisfied that the moving parties have met this onus. The issues are obviously serious as they involve the termination of the parental rights of the mother in relation to the children, and it is at least arguable whether dismissal of her appeal was the appropriate course in the circumstances, in order to protect the best interests, protection and well-being of the children, being the primary objective of the Child and Family Services Act (CFSA), and to enable the court to deal with the case justly, being the primary objective of the Family Law Rules as stated in Rule 2(2).

[12] I am likewise satisfied that there may be irreparable harm to the mother and A. M. if the stay is not granted. The effect of not granting the stay would be to sever the hearing of the Society’s cross-appeal from the mother’s appeal (assuming that she will succeed on her appeal from the dismissal in the Court of Appeal). I am not in a position, on the record before me, to determine that a just determination of issues would not be prejudiced by reason of the cross-appeal on the access issue being dealt with prior to, and separately from, the appeal on Crown wardship. Presumptively, and in the absence of convincing evidence to the contrary, the two issues would be considered to be inextricably linked, and therefore should ordinarily be heard together in order to deal with all of the issues affecting the children justly.

[13] On the question of which of the parties would suffer greater harm from the granting or refusal of the stay pending the decision on the merits, it is recognized that one of the very important subordinate purposes of the CFSA, pursuant to subsection 1(2) 3.iii, is the promotion of early decision-making to achieve permanent plans for the children in accordance with their best interests. It is very important that permanency and stability be achieved in the children’s lives as soon as reasonably possible, particularly in light of the length of time they have been in care, having been first apprehended in 2008.

[14] Justice McSorley’s Reasons were not made part of the record for these motions, however, I am advised that she was of the view that the children are suitable to be placed for adoption, and accordingly she must have been of the view that the access order would not be incompatible with an adoption plan. The Society’s position is that the access order will be an encumbrance on a possible adoption, and that any further delay would diminish the chances of an adoption placement for the children.

[15] It must be acknowledged however, that refusing the stay would not bring an end to the litigation surrounding the children, as the mother will still have the right to proceed with her appeal to the Court of Appeal in relation to the dismissal, and if successful, to proceed with her appeal of the Crown wardship order. It is difficult to see how an adoption placement could proceed until this litigation is resolved.

[16] All that would be accomplished in refusing a stay would be to sever the appeal on access from the appeal on Crown wardship, with the risks to a fair adjudication on the merits which would come with that, without a corresponding clearing of the way for an adoption placement. The other possible outcome from refusing the stay would be the discontinuation of the access of the mother and the children’s siblings should the Society’s appeal be successful. In my view, this would not be considered to be desirable while the Crown wardship order remains subject to a possible reversal, pending the final exhaustion of the mother’s appeal rights.

[17] I am therefore of the view that a stay should be granted, but on terms which would ensure that the various appeals are dealt with, and final disposition on the children’s situation made, as expeditiously as possible, which would be the children’s best interests.

[18] It is therefore ordered that:

1. the Cross-Appeal of the Society be temporarily and conditionally stayed pending the following:

a) The disposition of the mother’s appeal to the Court of Appeal of the summary dismissal of her appeal in this proceeding at the Assignment Court on November 30, 2012; and

b) the disposition of Adam’s appeal to the Legal Aid Appeal Committee in Toronto from the decision of the Local Legal Aid Committee denying him funding to retain counsel to respond to the Society’s Cross-Appeal, and, if successful, his retention of legal counsel for those purposes.

2. the stay is conditional on completion of the following:

(a) Counsel for the mother shall, within 5 days hereof, request in writing, with a copy to counsel for the Society and for the OCL, that the preparation of the transcript of the proceeding at the Assignment Court on November 30, 2012 be expedited;

(b) Counsel for the mother shall, within 3 days of receipt of the transcript of the November 30, 2012 proceeding, notify counsel for the Society and for the OCL of that fact;

(c) The mother shall perfect her appeal to the Court of Appeal within two weeks of receipt of the said transcript;

(d) A. M. shall, within 3 days of receipt of the decision of Legal Aid Appeal Committee, notify counsel for the Society and for the OCL of such decision;

(e) A. M. shall, within 14 days of receipt of a decision of Legal Aid Appeal Committee allowing his appeal and authorizing issuance of a legal aid certificate, serve a Notice of Change of Representation identifying the lawyer retained by him in respect of Society’s Cross-Appeal;

(f) The mother shall notify counsel for the Society and for the OCL immediately upon being advised of the hearing date for her Appeal to the Court of Appeal; and

(g) Counsel for the mother shall, immediately upon receiving the decision of the Court of Appeal, advise notify counsel for the Society and for the OCL of the decision.

3. in the event that any of the foregoing conditions are not complied with the Society or the OCL may move, on 4 days notice, for an Order lifting the stay.

4. the hearing of the Cross-Appeal of the Society, and the mother’s appeal, if its dismissal is set aside by the Court of Appeal, shall be expedited and the parties shall, immediately following the disposition of the mother’s appeal by the Court of Appeal contact the Trial Coordinator to arrange a hearing date.

5. counsel for all parties shall give the hearing of the Cross-Appeal of the Society and the Appeal of the mother, if applicable, their fullest possible priority. In the event that a party is of the view that another party is delaying, or not cooperating in arranging an early date for the hearing of the appeals, such party may move, on 4 days notice, for an order fixing a date for such hearing.

6. the granting of the stay shall be without prejudice to the Society or the OCL moving to lift the stay in the event of a change in circumstances affecting the best interests and well-being of the children, or in the event of an unforeseen delay or

complication affecting the timely hearing of the mother’s appeal to the Court of Appeal.

7. this matter shall be adjourned to Motions Court on March 15, 2013 to be spoken to at which time the parties shall report on the status of all of the matters referred to above.

[19] Costs of these motions shall be reserved to the judge hearing the mother’s appeal, if applicable, and the Cross-Appeal of the Society.

D. A. Broad J.

Date: February 14, 2013