Children's Aid Society of Toronto v. F.B., 2016 ONSC 5609

CITATION: C.A.S.T. v. F.B., 2016 ONSC 5609

COURT FILE NO.: FS-16-20698

DATE: 20160907

SUPERIOR COURT OF JUSTICE – ONTARIO

This judgment is under a publication ban pursuant to s. 45(7), (8) and (9) of the Child and Family Services Act

RE: Children’s Aid Society of Toronto, Applicant; Respondent in the appeal

AND:

F.B., Respondent; Appellant

BEFORE: Kiteley J.

COUNSEL: Anthony Macri, Counsel, for the Applicant Krum A. Dochev, Counsel, for the Respondent S.W. not appearing or represented on this motion

HEARD: August 30, 2016

ENDORSEMENT

[1] This is a motion by the Society to dismiss the appeal for delay or in the alternative, to dismiss the appeal on the merits. For the reasons that follow the motion is dismissed.

[2] N. was born […], 2011. Her mother is S.W. and her father is F.B.. The Society first apprehended N. within a week of her birth. Between that event and the trial, N. variously lived with her mother under supervision, her father under supervision and in a foster home. Justice R.J. Otter started the trial on June 1, 2015 and finished it 15 days later on August 31, 2015. He released reasons for judgment on January 29, 2016 in which he placed the child in the care of S.W. subject to Society supervision for one year and he granted access to F.B. commencing February 12, 2016 from Fridays after school to Monday morning except where Monday is a holiday then access extended to Tuesday morning with pick-up and drop off from and to the child’s school. After five months, he ordered that the access be extended to include overnight on each Wednesday from after school to Thursday morning. F.B. did have the initial weekend access and the extension to include Wednesdays overnight.

[3] There will be a hearing in the OCJ before January 29, 2017 when the period of supervision ends.

Appeal by the father

[4] In his notice of appeal, F.B. asks for a new trial and for an order granting him custody. In the alternative he asks for an order for access to the child on an equal sharing basis. His grounds for appeal are that the trial judge erred in appreciation of some of the evidence before him in arriving at the conclusion that the child should be placed with the mother; erred in determining that the father should only have access every other weekend; erred in his assessment of the entirety of the evidence and came to incorrect conclusions; and erred in changing the order fundamentally after he had rendered and released his decision.[^1] The notice of appeal was served and filed within 30 days of the decision.

Status hearings

[5] As is the practice in Toronto, F.B. and the respondents were required to attend the Status Hearing held on March 21, 2016 at which time he asked for an adjournment. He indicated that he had a Legal Aid certificate and was in the process of retaining counsel. Counsel for the Society was not opposed but asked for proof prior to the next status hearing date that the transcripts had been ordered. Stevenson J. adjourned to April 18 and directed F.B. to provide proof prior to that date that the transcripts had been ordered.

[6] In an endorsement later on March 21, 2016 Stevenson J. noted that F.B. had not yet been approved for Legal Aid and therefore her earlier order was of no force and effect. Instead, prior to the April 18 status hearing, Stevenson J. ordered that F.B. advise counsel for the Society and S.W. that he had applied for Legal Aid.

[7] On April 18, 2016 F.B. advised that he had received an opinion certificate but he was having difficulty finding a lawyer to give an opinion. He advised that his trial lawyer had agreed to write the opinion letter. I adjourned to May 16 and directed F.B. to be in a position to advise the court how this matter will proceed quickly.

[8] On May 16, 2016, F.B. did not attend but duty counsel advised that an opinion letter had been provided on May 3, 2016 and was under consideration by Legal Aid. Chiappetta J. adjourned to June 15 and she repeated the endorsement that I made on April 18. She directed counsel for the Society to provide a copy of the endorsement to F.B..

[9] On June 15, 2016, Stevenson J.’s endorsement indicated that F.B. was still in the process of obtaining legal aid and reflected duty counsel’s information that the Legal Aid Committee would review the opinion letter the following day. The matter was adjourned to July 18.

[10] On July 18, 2016, Horkins J. noted that F.B. had a Legal Aid certificate and advised that he had spoken to a lawyer but had not yet retained her. Horkins J. adjourned to August 15 and directed F.B. to retain counsel and to “immediately take steps to order the transcripts” and to advise the court on the next occasion as to when the transcripts would be ready.

[11] On August 15, 2016 the endorsement of Chiappetta J. indicated that as of 11:02 a.m., F.B. had not attended and that there was no indication that he had retained counsel or ordered the transcripts. She indicated that the Society could bring a motion to dismiss for delay on August 30, 2016 and she directed the Society to serve a copy of the endorsement and its motion materials on or before August 16, 2016.

Motion to dismiss

[12] In its notice of motion returnable August 30, 2016 the Society seeks the following relief:

(a) Pursuant to rule 38(25) and rule 14 of the Family Law Rules, an order dismissing the appeal for delay.

(b) In the alternative, an order under rule 38(28) and rule 16 of the Family Law Rules dismissing the appeal.

[13] In support of that motion is the affidavit of Mona Zirakmoshari, the Family Service Worker. The motion, affidavit and factum were all served on August 15, 2016.

[14] F.B. has retained the Law Office of Carol Shirtliff-Hinds and his affidavit sworn August 23, 2016 was served on August 24, 2016.

[15] The affidavit of the Family Service Worker indicated that on March 22, 2016, the mother contacted the Society and reported that the child had made a disclosure about her father. The Society investigated and informed the mother that the allegation of abuse had not been verified. The Society raised with the mother concerns that the child was using language that was not consistent with a child less than 5 years old and the mother denied that she had spoken about the father or that any other adults were speaking about her father. The mother denied the suggestion that she had told the child what to say. The Society concluded that the child continued to be safe in mother’s care and that there was no clear indication of concern about the father.

[16] The Family Service Worker also said that on April 11, 2016, she attended at the school because of a call to the Emergency After Hours Service regarding concerns that he had raised about the child and his suggestion that the mother was not caring for her properly. The Family Service Worker spoke with the child and the classroom teacher and no protection concerns were identified.

[17] On April 27, 2016, the Public Health Nurse contacted the Society and indicated that she had attended at the mother’s home to introduce herself as she had assumed care responsibility for the family and she had observed “concerning sexualized behaviours” from the child. The Society investigated again, including taking the child to SCAN at the Hospital for Sick Children. On June 7, 2016, the counselor from Hinks-Dellcrest who had been working with the mother called the Society and advised of her concerns. The police became involved and on June 13, 2016, F.B. was arrested and charged with sexual assault and sexual interference. A term of his bail condition was that he have no contact, directly or indirectly with either the child or the mother except for the purpose of meeting with the Society or for purposes of court.

[18] On July 7, 2016 F.B. met with his support worker from Ujima House and with the Society supervisor at which time F.B. raised his concerns about the Society ensuring that proper supports were in place. He denied the allegations and he voiced concerns about the Society’s role and ensuring that the child is not being brainwashed by her mother.

[19] The Family Service Worker deposed that the “concerns for sexual abuse were verified” and the Society brought a motion before the OCJ. On August 3, 2016 Justice Curtis varied the access so that his access would be at the discretion of the Society with the understanding that the Society would be exercising its discretion to not facilitate access at this time. The motion was adjourned to September 22, 2016.

[20] In his affidavit, F.B. described the difficulties he had in getting an opinion letter including contacting 10 lawyers all of whom advised they were too busy to take on the appeal. He said the opinion letter was dated June 7 and he was arrested June 13. On July 25 he retained Shirtliff-Hinds Law. He has another lawyer for the criminal charges and a third lawyer for the continuing child protection proceedings. He described how the criminal charges came “as a complete shock” to him and that his personal affairs had been thrown into disarray as has the termination of his access. He said that all of these proceedings are vitally important as they are critical to his ability to have a relationship with the child. As he said: “the importance of the proceedings and the fact that there are three of them going on at the same time, is at times overwhelming, and a source of significant personal stress”.

[21] In his affidavit, F.B. said nothing about transcripts. I asked counsel to make inquiries and after the recess, Mr. Dochev advised that he had contacted 3 private transcript preparers and been advised that the cost is $4.30 per page and the estimates for preparation of the 15 days transcript which he was given were 15-20 business days or 6 – 8 weeks or 30 calendar days. Since Legal Aid has granted a certificate for the appeal, there would be no issue as to payment for the transcripts. If ordered immediately, Mr. Dochev was optimistic that the transcripts could be available as soon as the end of September and the appeal could be perfected by the end of October. With the Society and the mother responding by, say, the end of November, the appeal could be heard in December and in any event, before the expiration of the 12 month supervision order.

Analysis

A. Dismissal for delay

[22] The factors relevant to dismissal for delay include whether the appellant had an intention to appeal within the time for bringing an appeal; the length of the delay and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case which requires consideration of the merits of the appeal. In addition the court must consider the effect of delay on the best interests of the child.

[23] The father had an intention to appeal and did so within the time required. The delay since the notice of appeal was filed is now 6 months which is not optimum but also not unreasonable. The explanation for the delay is reasonable given the circumstances which occurred in June and F.B.’s understandable sense of being overwhelmed by being engaged in three legal proceedings simultaneously, all of which entail significant consequences.

[24] There is no prejudice to the Society but counsel takes the position that the child and mother will be prejudiced. It is the case that there will be a delay in decisions which impact the child’s security and permanence planning. But the mother is unable to make final decisions before the end of the supervision period and, if as Mr. Dochev urges, the appeal can be heard within the period of supervision, there is no additional uncertainty.

[25] Counsel for the Society takes the position that the longer the child stays with her mother, the more bonded she becomes and the harder it will be on the child if a change in care is required. As indicated above, in the over 3 years during which the protection proceedings unfolded, the child lived with mother or father or a foster parent. At paragraph 174, Otter J. pointed out that F.B. has been a “good access parent” and he recognized that important relationship by not only continuing access but enhancing access. The Society has not appealed the order placing the child with the mother and consequently, if the order is set aside and a new trial ordered, it will likely involve two parents who have persisted in developing and maintaining a relationship with the child. Crown wardship is not in issue. Based on the evidence at the trial, the issue is whether the child lives primarily with one parent or the other, with or without supervision, and the extent of the access arrangement for the non-custodial parent. In that context, I do not accept that prejudice to the child is a significant factor.

[26] As indicated above, the father’s notice of appeal references primarily challenges to findings of fact, not to errors of law or errors of mixed law and fact. I am conscious that he probably prepared the notice of appeal without legal assistance and that, once the transcripts have been reviewed by appellate counsel, the grounds of appeal may be modified. Given the father’s persistence in maintaining a presence in the child’s life and the finding by Otter J. that he had been a “good access parent” I am satisfied that there are merits to this appeal.

[27] I will not dismiss the appeal on the basis of delay.

B. Dismissal on the merits

[28] Counsel for the Society relies on the usual cases[^2] to take the position that the appellant needs to show that the trial judge made a palpable and overriding error in coming to the factual findings; that there is a narrow scope of review due to the fact-based and discretionary nature of the decisions to be made, giving considerable deference to decisions of family and child protection courts; and that Otter J. applied the applicable statutory criteria and appropriate legal tests. In his submission, there was no error in fact or in law giving rise to appellate review and for that reason the appeal is lacking in merit and is unlikely to succeed.

[29] Counsel for the Society did not provide any detailed analysis of the reasons for decision or refer to any of the evidence. Nor did he refer to rule 16 or any of the child protection cases decided pursuant to that rule, let alone to such cases since the decision of the Supreme Court in Hryniak v. Mauldin[^3].

[30] The essence of the position taken on behalf of the Society is that since the making of the order, F.B. has been charged with sexual assault and sexual interference and as a term of bail, he cannot have contact with the child. In addition, the Society obtained an order that access is in its discretion and, as the Family Service Worker testified, the Society has no intention of allowing access. Counsel took the position that even if the appeal were argued at this time, he could not succeed since the terms of his release prohibit him from caring for the child.

[31] I do not agree that the charges laid against F.B. mean that the appeal is without merit. F.B. is entitled to be presumed innocent until proven guilty and it would violate that fundamental principle of criminal law if this court dismissed his appeal on that ground. In addition, the circumstances giving rise to the charges occurred months after the evidence at trial was finished and after the decision was released in January 2016. That evidence would only be relevant to the appeal if this court granted leave to the Society to rely on fresh evidence since the trial. The standard for filing fresh evidence in child protection cases is low but filing such evidence does not automatically mean that the appellate court will rely on such evidence.

[32] Counsel for the Society pointed out that the status hearing in the OCJ must take place before the expiration of the supervision period, namely before January 29, 2017. He took the position that the appeal was “a waste of time” because that date would arrive before the appeal could be heard and during this intervening time, the father would not have any relationship with his child because the Society has no intention of allowing him access.

[33] I do not consider the appeal to be a waste of time. As indicated above, the father has met the standard of merit in the appeal. Assuming F.B.’s counsel orders the transcript and perfects the appeal as he indicated above, this court has the capacity to have the appeal heard before the expiration of the supervision order.

ORDER TO GO AS FOLLOWS:

[34] Motion by the Children’s Aid Society of Toronto is dismissed.

[35] By Monday September 12, 2016 at 5:00 p.m. counsel for the appellant shall (a) order the transcripts and (b) provide confirmation from the transcriber to counsel for the Society that the transcripts have been ordered and the date by which they will be available.

[36] The appellant and his counsel and counsel for the Society shall attend a Status Hearing in this court on September 19, 2016 at 10:00 a.m.

Kiteley J.

Date: September 7, 2016

[^1]: Neither the material filed on this motion nor oral submissions shed any light on the ground of appeal relating to a “fundamental change”.

[^2]: Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235; Children’s Aid Society of Toronto v. S.A.C. 2005 CanLII 43289; Children’s Aid Society of London and Middlesex v. C.D.B. 2014 ONCA 692

[^3]: [2014] SCC 7