CITATION: Huron-Perth Children’s Aid Society v. R.C.K. et al., 2015 ONSC 3023

COURT FILE NO.: 2-2015AP

DATE: 2015/05/12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HURON-PERTH CHILDREN’S AID SOCIETY

(Applicant)

And:

R.C.K. and C.G.C.

(Respondents)

BEFORE: Justice I. F. Leach

COUNSEL: Michael Wheeler for the Applicant (Respondent in appeal)

Philip B. Cornish for the Respondent R.C.K. (Appellant)

No one appearing for the Respondent C.G.C.

Sara Wisking, for the Office of the Children’s Lawyer, (representing the child J.K.)

HEARD: May 11, 2015

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

ENDORSEMENT

[1] Before me is a motion by the Huron-Perth Children’s Aid Society (“the Society”) to dismiss an appeal to this court from an order made in the Ontario Court of Justice.

[2] The relevant order was made in a child protection proceeding, brought pursuant to the Child and Family Services Act, R.S.O. 1990, c.C.11.

[3] The Society moves pursuant to Rule 38(30) of the Family Law Rules for dismissal of the appeal, by the child’s mother, on the ground of delay.

Background

[4] By way of further background:

• The order from which the appeal is taken was made by The Honourable Justice Brophy on December 19, 2014. The order directed that the child, J.K., be placed in the temporary care and custody of the Society, with provisions for separate access by the child to his mother R.C.K., and to his father C.G.C. The relevant order concluded with a direction that the underlying protection application be adjourned to a settlement conference set for May 29, 2015.

• On or about January 16, 2015, a Form 38 Notice of Appeal to this court was signed by R.C.K., and the notice of appeal was served by Mr Cornish the following day, (i.e., on January 17, 2015).

• The filing stamp on the notice of appeal indicates that it was filed with the court on January 19, 2015.

• For the next three months, following service of the notice of appeal herein, the Society then heard nothing further from Mr Cornish or R.C.K. in relation to this appeal. On April 17, 2015, a legal assistant working with the Society, (Ms Adams, who swore an affidavit in support of the motion before me), therefore contacted the Registrar of this court to confirm the status of the appeal. Besides being advised by the Registrar of the court file number assigned to this matter, Ms Adams was able to confirm that the notice of appeal herein had been filed with the court on January 19, 2015, and that no notice had been filed with the court confirming ordering of transcripts in relation to the proceedings which led to the order under appeal.

• Later the same day, (i.e., on April 17, 2015), the Society prepared its motion material to have R.C.K.’s appeal dismissed for delay, and served the motion material by mail on R.C.K. (via Mr Cornish), C.G.C., and the child’s lawyer. The material then was filed with the court on April 20, 2015. The motion was scheduled for hearing on April 29, 2015.

• On April 24, 2015, counsel for the Society and counsel for the child both served and filed appropriate confirmation forms, indicating their intention to proceed on April 29, 2015, with a hearing of “all issues” relating to the Society’s motion to dismiss the appeal for delay.

• I was advised by counsel for the Society and by Mr Cornish that Mr Cornish then wrote to counsel for the Society on April 24, 2015, indicating that a transcript of the hearing before Justice Brophy had been ordered. I accept that such a letter was sent, although I was not provided with a copy of it. However, the relevant letter apparently did not indicate when the transcript had been ordered, and during the hearing before me, Mr Cornish was unable to provide any confirmation of the date on which the transcript had been ordered.

• On April 29, 2015, the Society’s motion to dismiss the appeal for delay came on for hearing before Justice Hockin. Justice Hockin’s endorsement indicates that, although Mr Cornish had appeared in his courtroom “from time to time” that day, Mr Cornish was not available when this motion was called for hearing. He was instead appearing in the provincial court. Counsel for the Society, having attended with the children’s lawyer, and having waited throughout the morning to be heard, expressed a desire to proceed with the motion as she was required in Stratford. Mr Cornish, (who had been in provincial court for approximately 45 minutes), was advised that this motion was in Superior Court to be spoken to, but apparently indicated his inability to attend for even a brief time to set a new hearing date. (Justice Hockin notes in his endorsement that it would have taken “only 2-4 minutes” to do so.) Although noting that the Society was “anxious to proceed”, and that the child’s best interests were “not well served by an adjournment”, Justice Hockin declined, in the circumstances, to hear and deal with the motion on its merits, in the absence of R.C.K.’s counsel. However, so that the case would “not be set adrift”, the motion herein was adjourned to May 11, 2015; (i.e., the date on which the matter would come before me, as the judge assigned to a two week family sittings here in Goderich). Mr Cornish acknowledges that he was then provided with a copy of Justice Hockin’s endorsement.

• On May 7, 2015, counsel for the Society and counsel for the child both served and filed appropriate confirmation forms, indicating their intention to proceed on May 11, 2015, with a hearing of “all issues” relating to the Society’s motion to dismiss the appeal for delay.

• When the matter was called before me, on May 11, 2015, Mr Cornish once again was not immediately available. The matter was stood down so that he could be located elsewhere in the courthouse and asked to appear in this court, which I then permitted despite the fact he was not gowned.

Party Positions

[5] When all counsel were before me, counsel for the Society asked me to rule on the Society’s motion and dismiss the appeal for delay, as the appellant unquestionably was in breach of the rules designed to ensure diligent pursuit of such an appeal in a timely way.

[6] Moreover, the Society emphasized that prolonging the formal appeal would prejudice the best interests of the child by making it difficult or impossible to proceed with the settlement conference currently scheduled for May 29, 2015. Such dates are hard to come by, and having to reschedule the settlement conference likely would result in significant delay to the underlying child protection proceeding. In particular, it would delay the Society’s intended request to have the 10-year-old child moved from foster care to a placement with the child’s father.

[7] These sentiments were strongly echoed in the submissions of the child’s lawyer. She emphasized that the child, currently in foster care, wishes to be returned to one of the child’s parents, (R.C.K. or G.C.C.), as soon as possible. In particular, the child does not wish to choose between the parents, but very much wants to exit foster care and be returned to the full time care of one of the parents as soon as that can happen – and certainly before school resumes in September. For now, however, the child remains in legal “limbo”, with progress of the underlying child protection proceeding remaining uncertain while R.C.K.’s formal appeal is outstanding.

[8] Responding submissions from Mr Cornish included the following:

• Mr Cornish indicated to me that he was “not retained” by R.C.K., and that he was appearing only as R.C.K.’s “agent” and not as her counsel of record, as he was said to be still working through the financial terms of his possible retainer by R.C.K. with Legal Aid.

• Mr Cornish said he felt “completely ill-equipped” to deal with the motion, as he did not have his file with him, and had not prepared any responding motion material. In that regard, Mr Cornish candidly acknowledged that, until his presence was requested shortly before his appearance before me on Monday, May 11, 2015, he mistakenly had assumed, notwithstanding admitted receipt of Justice Hockin’s endorsement shortly after the hearing on April 29, 2015, that the Society’s motion was next returnable either on Tuesday, May 12, 2015, (because motions in the Ontario Court of Justice apparently are heard on Tuesdays), or on Wednesday, May 13, 2015, (because motions in the Superior Court of Justice normally are heard in Goderich on Wednesdays). Mr Cornish repeatedly said he had reviewed Justice Hockin’s endorsement only “fleetingly” after its arrival.

• Mr Cornish said that he had not reviewed the matter with R.C.K., and had not received any instructions from her, as she had been dealing with a “great number of things” in her life since formal commencement of the appeal. Such events were said to include R.C.K.’s hospitalization and giving birth to two additional children, (in […] of 2015), who were the subject of separate child protection proceedings. Mr Cornish indicated that R.C.K. was “impossible to get by telephone”, making it difficult to obtain her instructions in relation to the appeal, but he thought that she “may wish to proceed with it”, and “notionally wishes to proceed with it”. [Emphasis added.] When I pressed Mr Cornish for clarification of such comments, he confirmed that he in fact had received no instructions from R.C.K. to proceed with the appeal, but also had received “nothing negating her wish to proceed”. It once again was emphasized that R.C.K. has been dealing with a number of other pressing matters in her life, (including other court proceedings). Mr Cornish also stressed that R.C.K. is “not sophisticated”, and is simply not aware of the requirements associated with pursuing an appeal.

• Mr Cornish acknowledged that he appeared as counsel during the hearing before Justice Brophy on December 19, 2014, and accordingly heard Justice Brophy deliver oral reasons along with a written endorsement, in relation to the order underlying this appeal. However, Mr Cornish said it was “not immediately clear” to him that a transcript of the hearing would be required in order to pursue the appeal.

• It was acknowledged that, to date, nothing had been filed with the court to prove that the transcripts had been ordered, in compliance with the requirements of Rule 38(12). However, Mr Cornish characterized this as merely a “technical requirement”, in respect of which failure should not result in the “harsh” result of having an appeal dismissed for delay. Moreover, the current method of ordering of court transcripts was said to be a relatively “new process” with which Mr Cornish was not entirely familiar, and it was said that correspondence advising the Society that the transcripts had been ordered, (albeit on a date unknown and incapable of being confirmed by Mr Cornish), should be taken as sufficient in the circumstances.

• It was argued that neither the Society nor the children’s lawyer had filed any evidentiary material before the court to substantiate the otherwise bald assertion and related oral submissions that further delay would prejudice the interests of the child.

• Mr Cornish submitted it was “not uncommon”, in his experience, to have such motions adjourned to permit additional preparation.

[9] In the result, Mr Cornish emphasized that he was “placed in a difficult position”, and asked that the Society’s motion be dealt with by way of an order setting a timetable for the completion of further steps to perfect R.C.K.’s appeal, failing which the appeal could then properly be dismissed.

Analysis

[10] I turn first to the formal status of Mr Cornish.

[11] During the hearing before me, Mr Cornish acknowledged that he not only had represented R.C.K. at the relevant hearing before Justice Brophy, (leading to the order from which this appeal was initiated), but that he also had assisted R.C.K. with preparation, service and filing of the notice of appeal giving rise to this proceeding.

[12] As I noted during the course of submissions, and as Mr Cornish then also acknowledged, the notice of appeal he admittedly helped to prepare, deliver and file with the court indicates that he is R.C.K.’s counsel of record on this appeal.

[13] Although it was suggested that inclusion of that formal indication was an oversight on the part of Mr Cornish, in my view the parties and the court are entitled and obliged to view him as R.C.K.’s counsel of record unless and until proper steps are taken, in accordance with the Family Law Rules, to change the nature of R.C.K.’s formal representation.

[14] I turn next to the merits of the Society’s motion, which effectively has prompted, in response, an oral request by R.C.K.’s counsel for an extension of time in which to comply with the rules for pursuing and perfecting an appeal.

[15] In that regard, it seems clear to me, (and it was not really disputed), that R.C.K. has failed to comply with applicable requirements of the Family Law Rules, as far as timely and diligent pursuit of her appeal is concerned.

[16] In that regard:

• As noted above, the notice of appeal was filed with the court on January 19, 2015.

• Pursuant to Rule 38(22)2, where no transcript is required, an appellant in Child and Family Services Act cases must serve an appeal record and factum within 14 days of filing the notice of appeal; i.e., in this case, by February 2, 2015. This was not done.

• Pursuant to Rule 38(12), where an appeal requires a transcript, the appellant is obliged, within 30 days after filing the notice of appeal, (in this case, by February 18, 2015), to file proof that the transcript has been ordered. This was not done.

• Pursuant to Rule 38(16), once the authorized court transcriptionist has completed the transcript, he or she must then promptly notify the appellant, the respondent and the court office (in the court where the appeal will be heard). This has not yet happened.

• Pursuant to Rule 38(22)1, where a transcript is required for an appeal in a case under the Child and Family Services Act, supra, the time for service of an appeal record and factum is extended to 30 days after receipt of notice that the transcription is complete.

[17] In this case, R.C.K.’s counsel now takes the position that a transcript is required for purpose of the appeal. (As noted above, this apparently was not his initial view, even though he represented R.C.K. at the hearing which led to the order from which an appeal is being taken.)

[18] Assuming without deciding that a transcript was required for the appeal, so as to extend the relatively short appeal perfection deadline that otherwise would follow from Rule 38(22)2, R.C.K. is now well beyond the deadline for complying with Rule 38(12).

[19] Contrary to the submissions of R.C.K.’s counsel, I think non-compliance with Rule 38(12) must not be treated as a mere “technicality”.

[20] In particular, the Rule 38(22)1 extension of time for appeal perfection, granted by the Family Law Rules to appellants who require a transcript for that purpose, clearly does not exist in a vacuum. It is a concession obviously counterbalanced with the Rule 38(12) obligation on the part of such appellants to confirm that they have ordered the transcript in a timely way.

[21] Effectively granting the extension, without sufficiently recognizing and properly enforcing the corresponding obligation, would enable appellants to extend the time for appeal perfection unilaterally. This in turn would permit delay, both to the appeal and to the underlying proceeding, (in cases involving an appeal of an interlocutory order), which the rules were designed to avoid.

[22] In my view, the informal correspondence apparently sent by R.C.K.’s counsel to the Society, indicating that a transcript has been ordered, on an unspecified date, falls far short of compliance with Rule 38(12). In particular:

• To state the obvious, Rule 38(12) demands “proof”. This inherently connotes something more than a mere unsupported indication or assurance that the requirement has been satisfied.

• That “proof” has to be supplied not only to opposing parties, but also to the court. The appellant therefore effectively must provide the court, as well as opposing parties, with an assurance that steps are being taken to pursue the appeal in a diligent manner. This underscores the potentially serious consequences of an inaccurate assurance. That in turn increases the likelihood that any such assurance will be given only after due care and consideration, thereby making such an assurance to opposing parties and the court more reliable.

• Provision of such proof almost invariably will provide all concerned with further helpful information. For example, information as to the particular date on which a transcript was ordered will indicate to opposing parties and the court whether the appellant has delayed matters, and if so, the extent of the delay. Similarly, information that a transcript was ordered from an authorized court transcriptionist will indicate that person’s identity, thereby permitting opposing parties and/or the court to follow up if and as necessary to determine the status of an ordered transcript.

[23] In this case, I think the real question before me therefore is whether the court should extend the time for R.C.K.’s compliance with the provisions of Rule 38, as requested by R.C.K.’s counsel, Mr Cornish.

[24] In that regard, I have in mind appellate authority such as Issasi v. Rosenzweig, [2011] O.J. No. 520 (C.A.), and decisions of our court, such as Jones v. Jones, [2013] O.J. No. 1562 (S.C.J.), which address factors to be considered when determining whether or not to exercise discretion to extend the time for launching or perfecting an appeal. These include:

• whether the appellant both formed and maintained an intention to appeal, and perfect that appeal, within the relevant deadlines;

• the length of the delay and explanation for the delay;

• any prejudice to the respondent;

• the merits of the appeal; and

• whether the “justice of the case” requires it.

[25] In the case before me, the appellant has provided no evidence in relation to such matters, in support of the indulgence requested.

[26] I accept Mr Cornish’s repeated indications that he was in a “position of difficulty” in that regard, when appearing before me. In my view, however, many such difficulties were of his own making. In particular:

• I find it difficult to believe that Mr Cornish was completely unable to make contact with R.C.K. over the course of the past several months; i.e., since the notice of appeal was filed. The indications of such inability seem at odds with the various informal indications from Mr Cornish that he has been made aware of various other events in R.C.K.’s life over the same time period.

• It seems to me that there really was no excuse for Mr Cornish not realizing that the matter was returnable on May 11, 2015, apart from his admitted failure to read Justice Hockin’s endorsement with the care it deserved, and to diarize the matter accordingly. He also seems to have ignored the confirmation forms sent by counsel for the Society, and counsel for the child.

• Whether Mr Cornish thought the matter was returnable on May 12 or May 13, 2015, I fail to understand why steps were not taken well before now to file some form of material, in response to the Society’s motion. Again, the Society’s motion material was served as long ago as April 17, 2015, and Mr Cornish clearly knew that it already had been returnable before Justice Hockin on April 29, 2015. (That was the date indicated in the motion material, and in the earlier confirmation forms filed by counsel for the Society and counsel for the child. Mr Cornish also was in court that day, and subsequently received a copy of Justice Hockin’s endorsement.) Even if R.C.K. has experienced difficulties, and/or Mr Cornish has encountered difficulty contacting R.C.K. and securing instructions, it seems to me that some evidence of that could have been prepared and filed, (especially during the further time provided by the first adjournment granted of necessity, and with obvious reluctance, by Justice Hockin). Similarly, it seems to me that evidence could have been filed relating to matters likely to be within the knowledge of counsel rather than R.C.K., such as evidence of the steps taken to order a transcript, when that was done, and an update as to when completion of the transcript might be expected. (Even if R.C.K. may be unsophisticated and unaware of the intricacies of appeal perfection, the same should not be true of counsel. Certainly, counsel should be familiar with the procedures involved in ordering transcripts, and filing proof of such transcription orders with the court. Nor do I understand how counsel involved in a hearing at first instance would be unaware of the obvious need to order, for purposes of an appeal, a transcript of oral reasons for the first instance decision that apparently were delivered in his presence.)

[27] In the result, I have no evidence that the appellant has maintained an intention to pursue and perfect her appeal.

[28] To the contrary, as noted above, I received an express indication from Mr Cornish that he has received no instructions from R.C.K. to proceed with the appeal since the notice of appeal was filed many months ago.

[29] I similarly have no evidence indicating or clarifying the extent of the relevant delay.

[30] In particular, all I have is a consensus, conveyed through the submissions of counsel, that Mr Cornish sent a letter on April 24, 2015, indicating that a transcript has been ordered. It may have been ordered shortly after the notice of appeal was filed in January of 2015, (in which case the appellant may not have delayed the matter significantly), or it may have ordered shortly before the sending of Mr Cornish’s letter on April 24, 2015, (in which case the appellant effectively may have delayed the matter for more than three months). As noted above, Mr Cornish was unable to provide me with any confirmation in that regard, and I do not think the court should make assumptions about important yet uncertain matters in a manner favourable to a party seeking such an indulgence.

[31] Moreover, in my view, no adequate explanation has been provided for the delays in this case.

[32] In particular, I think it astounding that appellate counsel, having been provided with more than adequate notice of the failings identified in the Society’s motion material, still has taken no steps whatsoever to file, even belatedly, the proof of transcript ordering required by Rule 38(12). The securing and filing of such proof is not something that required the instructions or involvement of R.K., and is something Mr Cornish readily could have done if such proof exists.

[33] As for prejudice, it seems to me that the primary focus must be on possible prejudice to the child. This is consistent with s.1(1) of the Child and Family Services Act, supra, which confirms that the “paramount purpose” of the legislation is “to promote the best interests, protection and well-being of children”.

[34] As noted above, the Society and the child, (through the child’s lawyer), emphasize that the child’s best interests and well-being are not served by delay. They accordingly argue that permitting R.C.K.’s appeal to continue, notwithstanding her delays in complying with pursuit and perfection of the appeal, is inherently prejudicial to the child. This was supplemented by submissions concerning available court dates, and party positions.

[35] Mr Cornish suggested that evidence is needed to substantiate any suggestion of prejudice to the child because of delay in progress of the appeal.

[36] I disagree.

[37] In my view, legislative recognition of the inherent prejudice sustained by children, as a result of delays in litigating such disputes, is reflected in the legislation governing child protection matters.

[38] For example, in dealing with child protection proceedings, the Child and Family Services Act, supra, contains various provisions requiring expeditious hearings, (section 46), limiting the duration of adjournments, (section 51), and requiring the court to fix hearing dates (section 52).

[39] Similarly, Rule 33 of the Family Law Rules sets a very definite timetable for every child protection case, and Rule 38 expressly shortens otherwise applicable time limits for appeals found in numerous cross-referenced Rules of Civil Procedure.

[40] In this case, I accept that delay in the resolution of R.C.K.’s appeal will delay the resolution of the underlying child protection proceeding, and that such delay is inherently prejudicial to the best interests of the child.

[41] Nor do I think that formal evidence was required to provide the court with information about party positions, or available court dates (or the lack thereof) which might significantly delay progress of the child protection proceeding.

[42] To the extent that such date realities would push resolution of the underlying child protection proceeding into the 2015-2016 school year, I also think I am entitled to take judicial notice of the corresponding uncertainties, concerns and disruptions that might very well create for a 10-year-old child.

[43] In my view, it was the appellant, seeking the court’s indulgence, who had the obligation to lead evidence addressing such concerns about prejudice. The appellant tendered no such evidence.

[44] There similarly is no evidence before me addressing the possible merits of R.C.K.’s appeal.

[45] As for the overall “justice of the case”, I frankly am left with the general impression that commencement of R.C.K.’s appeal was an initial “foot in the door” litigation response which thereafter has received little or no attention, even after the Society initiated and pursued this motion, (supported by the child’s lawyer).

[46] In other words, as reflected in the comments of Mr Cornish, it seems to me that a formal appeal was launched because R.C.K. “may have wished to proceed with it”, or “notionally wished to proceed with it”, but there are few if any indications that R.C.K. and her counsel have been very interested in pursuing rather than preserving rights of appeal.

[47] In the meantime, the child’s life is “on hold”, awaiting resolution of the underlying child protection proceeding.

[48] I am also mindful of the fact that, if R.C.K.’s appeal is dismissed, she still has the ability to assert her position, and to pursue her desired outcome, (i.e., return of the child to her care), in the context of that underlying child protection proceeding.

[49] Having regard to all the circumstances, I am not inclined to exercise my discretion to grant the indulgence sought by Mr Cornish, and extend the time for the appellant’s compliance with Rule 38.

Conclusion

[50] For the reasons outlined above, I find that the Society’s motion should be granted. An order shall go accordingly, dismissing R.C.K.’s appeal for delay.

“I.F. Leach J.”

Justice I F. Leach

Date: May 12, 2015