SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-15-00020273
DATE: 20151208

RE: In the Matter of the Child and Family Services Act, R.S.O. 1990, c. 11 as amended

And in the Matter of an appeal from the Ontario Court of Justice

Child and Family Services Act Section 45(7) Order Prohibiting Publication of Information that has the Effect of Identifying the Children

BETWEEN:

Children’s Aid Society of Toronto, Applicant/Respondent in Appeal

AND:

M.S., Respondent/Appellant in Appeal

BEFORE: Kiteley J.

COUNSEL:
V. Pilnitz, for the Appellant

S. Levenson, for the Children’s Aid Society of Toronto, Respondent

I. Ross, agent for the Office of Children’s Lawyer, Respondent

HEARD: November 19, 2015

ENDORSEMENT

[1] This is an appeal by the father pursuant to section 69 of the Child and Family Services Act from the order dated June 24, 2015 in which Curtis J. dismissed the father’s motion seeking leave to bring a further Status Review application. For the reasons that follow, the appeal is dismissed.

[2] E.O. was born […], 2003 and her sister A.O. was born […], 2007. C.O. is the mother of the children. The children were with mother from the time the parents separated in 2007 until mother left for Nigeria to care for her dying mother in December 2009. She left the children with Mr. M.S. and when she returned in January 2010, she asked Mr. M.S. to continue caring for the children.

[3] On March 23, 2010 the children were brought into the care of the Society when Mr. M.S. indicated that he could no longer care for them. On March 29, 2010, the Society commenced protection proceedings and on that date, the court made an unopposed order placing the children in the temporary care and custody of the Society, where they have remained.

[4] On July 20, 2010, the children were found in need of protection pursuant to s. 37(2)(b) and 37(2)(i) of the Child and Family Services Act and an order was made by Curtis J. making the children wards of the Society for a period of four months with access by the parents at the discretion of the Society. That order was not appealed.

[5] On November 9, 2010, the Society commenced a Status Review Application seeking an order that the children be made Crown Wards with access. On November 23, 2010, the Society amended its Status Review Application to seek an order that the children be made Crown Wards with no access.

[6] On August 29, 2011, Waldman J. dismissed the Society’s motion for summary judgment but noted that the Society could bring a further motion for summary judgment if Mr. M.S. did not follow through.

[7] In January 2012 Mr. M.S. was arrested in Alberta on charges of aiding and abetting an attempt to obtain credit under false pretences and one count of possessing an identity. He contacted the Society and, according to the Society, he advised that he would be away and that (although disputed by Mr. M.S.) he was withdrawing his plan to care for the children. As a result of his bail conditions, he was initially not able to leave Alberta but that condition was changed subsequently.

[8] On March 28, 2012, the Society brought a motion for summary judgment which, on April 16, 2012 was granted by Justice Marvin A. Zuker, namely that the children became Crown Wards without access by the parents.[1]

[9] The parents appealed that order and Mr. M.S. brought a motion for access pending the appeal which I dismissed on July 20, 2012.

[10] On October 15, 2012, Penny J. heard the appeals by the parents and on November 20, 2012 he released an endorsement dismissing the appeals.[2]

[11] The mother served a Notice of Appeal but did not perfect her appeal. The father did not serve or file a Notice of Appeal.

[12] The Office of the Children’s Lawyer served a Notice of Appeal from the decision of Justice Penny relating solely to issues of sibling access. Neither parent participated in the appeal. The issues relating to sibling access were settled and on March 27, 2013, orders for access between the children were made by the Court of Appeal on the consent of the Society and the OCL.

[13] In February 2014 Mr. M.S. brought a motion to the Court of Appeal seeking leave to commence an appeal from the decision of Penny J. and on March 19, 2014, that motion was dismissed by Blair J. in the Court of Appeal. In his endorsement, Blair J. noted that commencing a Status Review Application was the most expeditious and effective way for the father to have rights of access determined.

[14] On May 27, 2014, Mr. M.S. commenced a Status Review for a Crown Ward. The only relief sought was that of access to his children. The progress of that status review was as follows:

(a) on the first court date, July 23, 2014, Mr. M.S. did not attend but his counsel was present. This was expected to be a set date so it was not essential that he attend. It was adjourned to September 17, 2014.

(b) on the second court date, September 17, 2014, Mr. M.S. did not attend. His counsel did attend but advised the court that his last contact with his client had been before July 23, 2014. Neither the Society social worker nor children’s counsel had been able to contact the father. Curtis J. (the case management judge) made an endorsement that one further adjournment was allowed, peremptory against Mr. M.S.. She also added that if Mr. M.S. did not attend the next court date, the Status Review might be dismissed. She noted that “the father should not be permitted to disrupt the children’s lives like this, on a continuing and long term basis”. She adjourned the matter to November 12, 2014.

(c) on the third court date, November 12, 2014, Mr. M.S. did not attend. His lawyer was present and advised that he had not heard from his client in some time. In her endorsement, Curtis J. noted that Mr. M.S. should not be permitted to disrupt the children on a continuing and long term basis. She dismissed the Status Review Application and made an order that Mr. M.S. was not permitted to bring a future Status Review Application without obtaining leave in advance on a Form 14B motion.

[15] According to Mr. M.S., on June 2, 2014, he left Canada for Cotonon, Benin, to visit his family, expecting to return by the end of the summer. He deposed that on August 14, 2014, he was involved in a motor vehicle accident and was in a coma from August 14 to October 22 and he was hospitalized until November 28, 2014. As a result of the accident and hospitalization, he had not been able to attend court on September 17 or November 12.

[16] On February 5, 2015, Mr. M.S. brought a 14B motion seeking leave to have his Status Review assessed on the merits. After reviewing his 14B and the response by the Society, on February 11, 2015, Curtis J. made an endorsement dismissing the motion for leave to bring the Status Review application. She noted that if he did want to bring a Status Review application, Mr. M.S. had to first bring a motion on notice with evidence to support the granting of leave. She observed that the matter was complex and that Mr. M.S. should retain a lawyer. She also noted that Mr. M.S. should obtain better medical evidence to support his position and that faxed documents and copies should not be relied on in the circumstances. She directed him to get original documents with original signatures.

[17] On March 12, 2015, Mr. M.S. brought another 14B motion along with a Notice of Motion seeking leave to have his Status Review Application assessed on the merits. On March 23, 2015, Curtis J. dismissed the motion without prejudice and in her endorsement she referred to the instructions she had given in her February 11 endorsement namely that Mr. M.S. had to bring a motion on notice with evidence and argument.

[18] In May 2015, Mr. M.S. filed a Notice of Motion and Affidavit seeking leave to commence a Status Review Application. The motion was heard on June 24, 2015 at which time Mr. Pilnitz clarified for Curtis J. that his client was seeking leave to bring a Status Review application and within that, he was asking for access. The motion was dismissed with oral reasons.

[19] Mr. M.S. is now appealing the dismissal of his motion on June 24, 2015.

[20] On August 17, 2015, at the first Status Hearing in this court, Mr. M.S. did not attend. Ms. Levenson indicated that the children had been placed for adoption and she took the position that the appeal was moot. She indicated that she would serve a motion for dismissal. In his affidavit sworn September 12, 2015, Mr. M.S. said that he did not attend court on August 17 because he had not been notified of the Status Hearing.

[21] In anticipation of the Status Hearing on September 17, 2015, counsel for the Society did deliver a motion to dismiss. However, on that date, counsel agreed that the most efficient course of action was that the appeal should be expedited.

Access with the children since apprehension on March 23, 2010

[22] Between March 23, 2010 and April 16, 2012 (when the order for Crown Wardship was made), Mr. M.S. did not regularly visit with the children. He did not exercise his access rights between July 2010 and October 2010; between March 2011 and July 2011; and between January 2012 to March 2012. From September 2011 through to December 2011, Mr. M.S. attended access visits twice weekly on Mondays and Fridays from 4:00 p.m. until 5:00 p.m. According to the Society, the girls looked forward to the visits.

[23] In January 2012, access visits were moved to the Therapeutic Access Program which provided Mr. M.S. with longer visits on Tuesdays from 3:00 p.m. to 6:00 p.m. and Fridays from 2:30 p.m. to 4:30 p.m. Mr. M.S. attended only one access visit at the Therapeutic Access Program before his arrest in Alberta. Visits were briefly reinstated in March 2012 when Mr. M.S. returned to Ontario prior to the motion for summary judgment being heard. As indicated above, Mr. M.S. was acquitted in September 2013.

[24] Mr. M.S. met with the adoption worker on February 9, 2015 at which time he brought in a greeting card for each of the children and he wrote out some additional messages for them. The worker took photos of him that were shared with the children. In the spring of 2015, Mr. M.S. asked to visit with the children and he brought gifts including an iPod and a cell phone for the children. The visit and the gifts were refused for the reasons indicated in the affidavit of Kaushala Mahesan sworn August 21, 2015. His request to give the children an iPod and cell phone and earphones was refused by the Society.

[25] Mr. M.S. has not seen the children since March 2012. His last indirect contact was the cards in February 2015 following which he received letters from both girls. In his affidavit sworn October 22, 2015, he provided a copy of the notes which he received from the girls. The note from A.O. was as follows:

Dear Dad I don’t really remember much about you but I always always always think about you. I wish I could see you again. I love you and you should always remember that. Thank you for the crown in the card you sent me. What you wrote was very sweet. There is a really big question I wanted to ask you. Why did you put us (me and E.O.) in foster care. I’m seven. I need 7 years of b-day presents!!!

[26] The note from E.O. was as follows:

Dear Dad I want to see you. I have so many questions for you. I cant wait to see you again. I wonder how you are I hope your happy to see us too.

[27] The adoption investigation process has continued. In July 2015 the children were placed with the adoptive parents and they have been on “adoption probation” since then.

Reasons of Curtis J.

[28] The test for determining whether to grant leave to a parent to bring a Status Review Application is set out in C. v. Children’s Aid Society of Ottawa-Carleton[3] as follows:

(a) does the moving party have an ulterior motive for bringing the status review application?

(b) can relief be sought in any other, less drastic, way?

(c) are there unusual circumstances that justify the court’s intrusion into a long term foster placement?

(d) would the review satisfy the purposes of s. 1 of the Child and Family Services Act?

(e) has the moving party established a prima facie case to support the claim?

[29] The reasons given by Curtis J. were as follows:

(The decision continues exactly as in the source text with the full quoted reasons and remaining numbered paragraphs.)

ORDER TO GO AS FOLLOWS:

[43] Appeal by the Respondent from the order of Curtis J. dated June 24, 2015 is dismissed without costs.

Kiteley J.

Date: December 8, 2015

[1] Children’s Aid Society of Toronto v. O.(C.) 2012 ONCJ 213

[2] C.A.S.T. v. M.S. et al 2012 ONSC 6569

[3] 2000 22539 (ON SC)

[4] Footnote 2 at paragraphs 4-6