SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-15-133-00
DATE: 2015 07 16
RE: THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL
- and –
N.I.
BEFORE: LEMON J.
COUNSEL: Laura Shaw, for The Children’s Aid Society of Peel
Christine Hugel, for N.I.
HEARD: July 10, 2015
ENDORSEMENT
The Issue
[1] Mr. I moves for an order that:
the June 3, 2015 final order of the Honourable Justice Parent making the child, M.H., born […], 2013, a Crown Ward without access shall be stayed pending a hearing of the Appellant Father’s Appeal of the order.
An order that copies of all CAS file material regarding the child, M.H., since the end of trial on May 7, 2015 shall be provided to the Appellant Father or his counsel for the viewing within 10 days so that copies of the relevant disclosure can be made. Ongoing disclosure of CAS file material regarding the child, M. H., shall be provided to the Appellant Father or his counsel, on an ongoing basis every 2 weeks until the hearing of the Appeal.
[2] The Society consents to the second request and I so order. The issue, then, is whether I should stay the order of Justice Parent pending the father’s appeal.
Background
[3] The child, M.H., is two. He was born [...], 2013 and has been in the care of the Society since July 30, 2013. He has been with the same foster parents since that time; the evidence at trial was that the present plan is for those parents to adopt the child.
[4] The trial occurred from May 1st to May 7th, and on June 3rd, Parent J. ordered the child to be a Crown Ward with no access for the purpose of adoption.
Test To Be Applied
[5] Mr. I relies upon the case of Berry v. Berry, [2012] W.D.F.L. 45, 7 R.F.L. (7th) 29, 2010 CarswellOnt 10983 (Ont. C.A.) [Berry]. There, Rosenberg J.A. said:
The test to be applied on this application is whether there is a serious question to be tried, whether there will be irreparable harm to the child if a stay in not granted, and whether the balance of convenience favours granting a stay (para 1).
[6] The father points out that this test has been followed in The Children’s Aid Society of the District of Sudbury in Manitoulin v. B.(C)., [2003] O.J. No. 5469, [2003] O.T.C. 1156, 2003 2043 (Ont. Sup. Ct.) [Manitoulin v. B.(C.)] as well as The Children’s Aid Society of the Districts of Sudbury and Manitoulin v. S.B., 2006 CarswellOnt 2825, [2006] O.J. No. 1808, 2006 14961 (Ont. Sup. Ct.). In contrast, the Society relies upon the decisions of The Children’s Aid Society of The Region of Peel v. C.(A.L.), 2015 ONSC 3858 [Peel] and The Children’s Aid Society of Bruce (County) v. J.(D.), 2011 ONSC 5493 [Bruce]. In Bruce, followed in Peel, Ricchetti J. said:
[28] In Children's Aid Society of the County of Simcoe v. S.T., 2009 57458 (ON SCDC), [2009] O.J. No. 4402 at para 41 (S.C.J.), Boswell J. described the test as follows:
The test to be applied to stay applications is well settled. To succeed on an application for a stay, Ms. S.T.(1) must satisfy the court that there is a serious question to be determined, that irreparable harm would be suffered in the event the stay is not granted and that the balance of convenience favours the granting of the stay. [RJR-MacDonald Inc. v. Canada (Attorney General) 1994 117 (SCC), 1994 117 (SCC), [1994] 1 S.C.R. 311] The test was developed in a commercial context. It has been adapted to proceedings under the CFSA, but it has been modified, as it must be, to accommodate the overarching concern for the best interests of the children. [Children's Aid Society of the Districts of Sudbury and Manitoulin v. S.B.2006 14961 (ON SC), (2006), 2006 14961 (ON SC), 27 R.F.L. (6th) 226, [2006] O.J. No. 1808 (S.C.J.)]
[29] I reject the approach by Justice Boswell in CAS Simcoe which seeks to assess irreparable harm and the balance of convenience to the parties. Determining whether the child will suffer irreparable harm is or may be inconsistent with the child's best interests test. There may not be any irreparable harm to the child but it still may be in the child's short term interests to grant the interim relief. Further, to consider the balance of convenience of the parties puts their interests ahead of the child. In my view, this test, which is appropriate in a commercial or civil context, is not appropriate in the context of a Protection Application appeal.
[30] In my view, whether the interim order should be granted must be assessed with regard only to the benefits and harm to the child and the child only.
[31] I am not persuaded that the appellants must necessarily first establish "substantial material change in circumstances affecting the child's best interests" as set out in CAS Toronto v. B.D. These motions will typically be brought shortly after the judgment is released. In fact, s. 69(3) of the Act contemplates a 10 day period to permit an order to be obtained under s. 69(4) of the Act. Invariably, nothing will have changed that soon after the judgment. On the other hand, if there has been a material change in circumstances, the court could and should consider the changed circumstances in determining the children's best interests pending appeal. S. 69(6) of the Act expressly permits the court to accept evidence as to what occurred after the judgment is rendered. In conclusion, imposition of a condition that the appellants demonstrate a "substantial material change in circumstances" is an unnecessary hurdle for the appellants and one which detracts from and may conflict with the primary issue before the court - the judgement has been issued, it has been appealed, what is in the best interests of the Children in the interim pending the appeal?
[32] It is clear from CAS Toronto and CAS Sudbury and Manitoulin that the merits of the appeal must be considered. I agree. Where the court can determine that the appeal is frivolous or has little or no merit, it will be a very significant, if not compelling factor, to dismiss the motion to stay the order pending appeal.
[33] In my view, these motions should be approached in the following manner:
i. The appellants must show there is a serious issue to be determined in the appeal; and
ii. based on a consideration of all relevant factors set out in the Act as to what is in the Children’s best interests, what interim order pending the appeal would be in the Children's best interests?
[7] It appears that Berry was not referred to in either Bruce or Peel.
[8] The Society submits that Berry relates to family law proceedings as opposed to child protection proceedings and is therefore distinguishable. I do not find the Society’s submission to be of benefit. Both pieces of legislation require the best interests of the child to be a priority. While I must be guided by the Court of Appeal rather than my colleagues on the Superior Court bench, it is unlikely that much turns on the two or three step test. In Manitoulin v. B.(C.), Justice Gauthier said:
The application of the three part test is to be made within the context of the paramountcy of the best interest, protection and well-being of the child in question. (Para 7).
[9] That predominate interest will no doubt determine the second and third step of the three part test in any event. I agree with Ricchetti J. that it seems unsavoury to consider the interests of a child in terms of “balance of convenience,” which might otherwise be appropriate to commercial or civil proceedings.
[10] Out of an abundance of caution, however, I shall follow the Court of Appeal’s direction.
Serious Question To Be Tried
[11] In his Notice of Appeal, Mr. I has nine grounds of appeal. The first six grounds are boiler plate and are of little present benefit to my analysis. The eighth relates to the conduct of the Society after the decision was provided to the parties. As such, it would not be relevant to an appeal of the trial decision.
[12] Paragraphs 7 and 9 read as follows (I have broken paragraph 7 into its apparent complaints):
- There was a lack of procedural fairness including in
[1] the Appellant’s opportunity to be heard by being ordered to present his evidence by affidavit rather than his preference to lead viva voce evidence,
[2] a lack of appropriate voir dire regarding the use of the allegations and statements in police incident reports, an inappropriate amount of weight given to said reports some of which were 13, 14, and 20 years old,
[3] lack of adherence to the usual timelines for serving, filing and exchanging material for use at trial including a Statement of Agreed Facts presented to the Appellant at the last minute such that minutes before the trial commenced the Appellant was presented with a Statement of Agreed Facts for signing and
[4] case law relied upon by the CAS presented on the morning of trial on the day the case law was used by the CAS.
- The Honourable Justice failed to appreciate the role of the CAS’s actions and inaction including in limiting the Appellant Father’s access opportunities, in untimely disclosure and lack of adequate disclosure, in not seriously considering the paternal grandmother’s plan of care and in not working in good faith with the Appellant to ensure the Appellant’s success in reuniting with his son.
[13] With respect to the list of grounds at paragraph 7, I note paragraphs 29 and 33 of the trial decision. There, Justice Parent said:
Pursuant to the order of Clay, J. granted on consent on April 1st, 2015, the evidence in chief of the Society workers, the father, the paternal grandmother and a friend of the father was to be presented by affidavit.
These witnesses for each party were presented to the court by counsel to adopt the evidence in their respective affidavits and thereafter to be tendered for cross-examination by opposing counsel.
[14] That consent order will likely dispose of the first complaint.
[15] The trial judge does not appear to have relied unduly on the police incident reports. This will likely dispose of the second complaint.
[16] In response to this motion, the Society provided the following evidence:
Prior to the trial I am aware that counsel for Mr. I, Ms. Christine Hugel, was served with a Request to Admit in order to attempt to limit the time needed for trial and to focus the issues at trial.
The Society received a Response to the Request to Admit on April 22, 2015 admitting that the child M.H. was in need of protection.
On April 24, 2015 Society counsel, Laura Shaw, sent Ms. Hugel a letter by fax enclosing a Statement of Agreed Fact for Statutory Findings and for a finding that the child was in need of protection.
The trial in this matter was to start on Monday April 27, 2015. I am advised by Society counsel, Laura Shaw, that she was informed at approximately 11 am on April 24, 2015 that the trial judge would be Mr. Justice Bovard.
On Monday April 27, 2015, the trial was to commence before Justice Bovard. I observed Society counsel, Ms. Shaw approach Ms. Hugel to discuss the Statement of Agreed Facts previously sent on April 24, 2015. I observed Ms. Hugel to review the Statement of Agreed Facts with her client, Mr. I. I observed Mr. I sign several copies of the Statement of Agreed Facts while sitting at counsel table with Ms. Hugel.
On April 27, 2015, prior to the start of the trial, Ms. Hugel advised the court that she believed that the assigned trial judge, Justice Bovard, had a reasonable apprehension of bias as he had heard a motion previously regarding expanding the father’s access and had dismissed the motion. As a result, the matter was adjourned and placed back on the trial list.
At the start of trial on May 1, 2015, Ms. Shaw advised the court that she wished to file the Statement of Agreed Facts signed on April 27, 2015 and I did not observe any objection from Ms. Hugel or Mr. I Justice Parent made the Statement of Agreed Facts Exhibit #1 at the trial.
[17] There was no responding affidavit to this evidence and accordingly I can accept it as undisputed. It appears that counsel for Mr. I had seven days to deal with the Statement of Agreed Facts and it was filed on consent. This will likely dispose of the third complaint.
[18] Late filing of case law, if true, may be unprofessional but is unlikely to be a successful ground of appeal. This will likely dispose of the fourth complaint.
[19] The reasons for judgment, on their face, do not indicate any errors. The basis of ground 9 appears to be a re-arguing of the trial discretion of the judge and not a proper basis for appeal.
[20] There is nothing in Mr. I’s supporting affidavit to amplify the grounds of appeal or his concerns with respect to the trial.
[21] The standard for this aspect of the test is low. On this record, the appeal appears very weak, but I cannot say that it is frivolous. Without a transcript or a factum, I cannot make a determination that there are no appealable issues at this time. I accept that there are prima facie issues to be heard on appeal.
Irreparable Harm
[22] The child has been with his foster parents since July 30, 2013. The father has had supervised access between November 2014 and June of 2015. That access has been Wednesdays and Sundays from 10:00 a.m. to noon. There were periods of greater access during a Therapeutic Access and Assessment Program from September 30th to October 29, 2014. The case notes from the Society show that the visits were, as the father says, “generally positive.” The trial judge noted that:
[124] During her testimony, Ms. Rossi-Diorio acknowledged that the access visits between the child and father are:
i) positive;
ii) give rise to no real concerns regarding the father’s ability to nurture the child;
iii) indicate a close relationship between the child and the father and the child and the paternal grandmother;
iv) no safety concerns within the context of the supervised setting where the visit occur;
v) there is an absence of any adverse reaction by the child during the visits;
vi) there is an absence of anger by the father during the visits;
vii) the father is able to properly parent the child within the two (2) hour supervised visit;
viii) the child, at times, refers to the father as “dad”.
[23] The father’s counsel submits that, in light of the benefits of the access, it should be continued pending the appeal.
[24] The Society’s affidavit shows that the father failed to attend access on January 4, 7, February 18, 19, 23, March 8, 11, 22, 25, April 29 and May 20 and 27. He failed to appear for what was to be his last access visit after Justice Parent’s decision and arrived late for a make-up of this last visit on June 25. Mr. I’s motion to increase the access prior to trial was dismissed.
[25] While it is true that some of the missed dates were related to criminal court attendances, others were unexplained or cancelled without notice. If access is re-instated pending the appeal, the father may have an opportunity to show that he can maintain a relationship with his son. That will benefit the child. If Mr. I fails to attend, the appeal will almost certainly be unsuccessful and bring an end to this process. If that is the turn of events, that too, will benefit the child.
[26] While there is no evidence before me on the point, I would anticipate, and both counsel agree, that a proper estimate for the delay before this appeal could be heard would be something like three to six months from now. If the order is not stayed and the father is successful on his appeal, he will have to start over to re-establish the relationship with his son. The evidence suggests that the child will remain with the foster parents and they have been content to support the access in the past. While there may be no irreparable harm to the child if access is stayed, it will not be in his best interests to stop access if the father is ultimately successful.
[27] Following a two part test, Mr. I would be successful.
Balance of Convenience
[28] Rosenberg J.A., in Berry said “the balance of convenience in this type of case center’s primarily on the best interests of the child.” I have already determined that it would be in the best interests of the child to carry on the access pending the appeal. Accordingly, the father is successful on this branch.
[29] In the result, the father’s motion to stay the order is allowed. Access shall be continued on the same terms as the interim order prior to trial.
Lemon J
DATE: July 16, 2015
COURT FILE NO.: FS-15-133-00
DATE: 2015 07 16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL
- and –
N.I.
BEFORE: LEMON J.
COUNSEL: Laura Shaw, for The Children’s Aid Society of Peel
Christine Hugel, for Mr. I
ENDORSEMENT
LEMON J
DATE: July 16, 2015