CITATION: Children’s Aid Society of Toronto v. C.A., 2017 ONSC 1487
COURT FILE NO.: FS-16-21299
DATE: 20170303
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHILDREN’S AID SOCIETY OF
Karen Freed, for the CAS
TORONTO
Applicant/Responding Party
- and -
C.A.
Lawrence B. Geffen, for C.A.
Respondent/Moving Party
DECISION
D.L. Corbett J.:
[1] This motion arises in an appeal from a decision of Spence J. of the Ontario Court of Justice granting Crown wardship, without access, of the children SE and KZ.
[2] The appellant is the maternal grandmother, CA.
[3] The motion is for access between CA and the two children on such terms as the court may think appropriate pending the disposition of the appeal.
[4] The motion raises serious process issues that arise with some regularity.
Background History
[5] The trial was heard over nine days between September 26 and October 14, 2016. Spence J. released his decision on November 30, 2016.
[6] The facts are materially different for the two children.
[7] KZ was born in […], 2014. He was immediately taken into care by the Society and has remained in care his entire life. CA has not developed a close familial relationship with KZ. There has been sporadic access between CA and KZ and the trial judge found that KZ recognizes CA as an adult familiar to him. However, the trial judge did not find that there was a close familial bond between CA and KZ or that the access was “meaningful and beneficial” to KZ.
[8] SE was born in […] 2011 and thus is now five years old. For the first half of her life, SE lived with her mother and her grandmother, the moving party, CA. During this period, CA developed a close familial relationship with SE.
[9] SE was taken into custody when she was nearly three years old and has been with the same foster parents for about the past two years. CA has exercised regular access with SE during this period. The trial judge found that the relationship between CA and SE was close, “meaningful and beneficial” to SE:
The foster mother reports that SE’s visits with the maternal grandmother are very strong, a couple of times SE did not want to leave the visits because they were not long enough. On more than one occasion SE stated words to the effect: “I would like to be with my grandma forever and ever.” The foster mother says that SE never said anything negative about the maternal grandmother.[^1]
Looking first at SE there is no doubt about the strong bond which exists between her and the grandmother [CA]. It is not necessary for the court to discuss the extensive evidence which refers to that strong relationship.[^2]
To [CA’s] credit she did establish a loving and warm relationship with her granddaughter SE. The court is prepared to accept that if 5 year old SE were asked today, she would likely express the wish to live with her grandmother.[^3]
The Society concedes that the maternal grandmother’s relationship with SE is beneficial and meaningful. I agree, and accordingly I do not find it necessary to go any further in these reasons in so far as this issue is concerned with respect to the maternal grandmother.[^4]
[10] Notwithstanding this finding, the trial judge concluded that SE should not be placed in the custody of CA. He found that SE would continue to be at risk if placed with CA, in part because of CA’s history of prior involvement with the Society, CA’s multiple breaches of past court orders, which led the trial judge to conclude that CA had shown a pattern of ungovernability (my word, not that of the trial judge). None of these concerns over a custodial placement with CA had manifest as concerns during the access exercised by CA after SE was in the care of the Society, in part because this access took place in the presence of SE’s foster mother.
[11] Following release of the decision of Spence J., the Society advised CA that access would cease in accordance with Spence J.’s decision. A good-bye visit was scheduled and held in December 2016.
[12] Through counsel, CA advised the Society that she intended to appeal Spence J.’s decision and to seek a stay pending appeal so that access would continue.
[13] There were dealings between counsel about scheduling this stay motion. The Christmas holidays delayed this step. Counsel for the CAS had scheduling difficulties. CA applied for Legal Aid and there was delay in obtaining a decision from Legal Aid. Then CA received a decision denying her Legal Aid for the appeal. She has sought a review of that decision, which is underway but not yet completed. I find that CA had an immediate intention to seek a stay so that access could continue uninterrupted pending the appeal, and that, through no fault of CA, this motion was delayed through a combination of factors. I see no point in trying to parse the record to attribute blame: certainly none of its rests on CA, and most or all of it may be systemic.
[14] A good-bye visit was held in December 2016 and then access was terminated; there has not been access for the past two months.
[15] In respect to the appeal itself, a decision on the review of denial of Legal Aid is pending. It is hoped that this decision will be received before the next status hearing on March 20, 2017. If Legal Aid is granted it will then be necessary to order transcripts before the appeal can be perfected. If Legal Aid is denied it is not clear what the future of the appeal may be.
[16] CA argues that access should not have been terminated pending the appeal, and that it should be restored now, until the appeal is concluded.
[17] The Society argues that it would not be in SE’s best interests to resume access and then have SE go through the trauma of a further cessation of access after the appeal is decided, if the appeal is dismissed. It argues that it is not responsible for such a long delay – two months – and that the court should decide on the basis of the situation as it now exists.
Analysis
[18] This motion is brought pursuant to s.69(4) of the Child and Family Services Act, which provides that the court may make a temporary order for the child’s care and custody pending final decision of the appeal. Such temporary orders are to be based solely on the best interests of the child.
Timing of this Motion
[19] Motions for a temporary order for access pending appeal should be brought as soon as possible after the trial decision. These are important moments in the process and need to be taken seriously by the justice system. Delay in deciding these motions is, clearly, contrary to the best interests of the unfortunate children who are at the centre of these cases. Legal aid funding decision cannot wait weeks or months for these motions. Counsel for the moving parties have to treat the issues as emergent – matters that must be brought to court as soon as possible. And Children’s Aid Societies need to respond to these issues on the basis that the moving parties are entitled to have the issues dealt with on the merits, and not as a consequence of effluxion of time in a system that reacts indifferently to the issue. In a case such as this one, for example, it would seem reasonable to continue access and to defer a “good-bye visit” for a short period to enable a stay motion to be brought. If scheduling of a motion in a timely way cannot be agreed by the parties, then a brief appearance before a judge ought to settle issues around scheduling and interim terms.
[20] In this case, for example, CA ought to have raised the issue of continuing access pending appeal immediately after the release of Spence J.’s decision. If the Society was not prepared to agree to this access on some basis, then a stay motion could have been scheduled before Christmas, and certainly before a “good-bye visit” was scheduled and held. If the parties could not agree on dates for the motion then either side could have brought the matter before a judge, back in December, to obtain a date for the stay motion and terms of access (if any) pending return of the motion.
[21] These comments are not criticisms of any justice participants in this case. The scenario that presents in this case has occurred many times in past cases and may be inherent in the current institutional response to these cases. That overall response needs to change so that the court can do proper justice on these issues. By way of analogy, in serious criminal cases, where an accused person is found guilty and sentenced to a period of incarceration, it is possible to get a motion for bail pending appeal before an appellate court in a matter of hours. It is normal for bail pending appeal to be dealt with very quickly.
[22] Continued access does not have the same urgency as bail pending appeal; prejudice does not arise immediately: motions to continue access could unfold over a period of days or perhaps a few weeks without there being a practical interruption in access or a “good-bye visit” that impacts upon the child. But it is important that these motions are heard and decided before a formal “good-bye visit” is held.
Merits of Continued Access
[23] If this motion had been brought before access had been terminated and before a goodbye visit had been scheduled, on the record before me, I would have concluded:
(a) Access has not been “meaningful and beneficial” for KZ and should not be ordered on a temporary basis pending appeal;
(b) Access between SE and CA has been beneficial and would continue to be so pending the appeal;
(c) The trial judge found that access would be an impediment to adoption. However, on the record before me in this case, access during the period of the appeal would not impede adoption, since steps to arrange an adoption do not proceed while the appeal is outstanding;
(d) Temporary access between SE and CA should be granted unless the appeal appeared to be frivolous.
[24] In my view the reasoning changes after access has been terminated for two months and a good-bye visit has been held. SE has already experienced the hardship of separation, including living through the experience of learning that she will have no further contact with her family. If access is not restored, there will be some incremental harm by the continued separation during the appeal period. But that additional harm pales in comparison to the harm of putting this child through a second final separation from her family. The overwhelming weight of coordinate authority supports this view, as does common sense.[^5]
[25] Further, based on my assessment of the merits of the proposed appeal, I consider the risk that SE would be put through a second final separation is substantial: as I explain below, the appeal does not appear to have merit, though I cannot say that it is frivolous.
Merits of the Appeal
[26] The trial decision was fact-driven: during oral argument, counsel was not able to point to an error in the trial judge’s legal analysis. I see none.
[27] CA argues that the trial judge erred in finding that she is litigious in his assessment of factors to be considered about whether wardship should be without access. He argued that the steps taken by CA are the sort of steps that have to be taken by a concerned family members, and that, indeed, a trial judge could find that a family member is indifferent if that family member does not assert her position. The section of the trial judge’s reasons on this point, standing alone, might not support a finding that CA is “litigious” in the sense that this word is used by Sherr J. in Children’s Aid Society of Toronto v. A.F.[^6] (the analysis adopted by the trial judge for the issue of wardship with access). However, when the reasons are read as a whole, it appears to me that the trial judge was very much alive to the underlying analysis on this issue: whether it is possible that CA would disrupt an adoption if access was continued. I consider that the record, read as a whole, amply supports this conclusion. I see little prospect that an appeal court would interfere with it.
[28] Further, even if it was thought that the finding of “litigiousness” might not withstand appellate scrutiny, I am not persuaded that this will be material to the final result. This issue only arises if there is an order for Crown wardship. “Litigiousness” was a reason not to continue access after the order for Crown wardship. The trial judge gave other reasons for coming to this conclusion, reasons which were buttressed by findings throughout his lengthy reasons. The trial judge’s conclusion – that continued access with CA would be an impediment to SE’s adoption by another family – seems well supported in the reasons even if the appeal court disagrees with the characterization of CA as “litigious”. Thus the situation is different than it was in R.L. v. Children’s Aid Society of Metropolitan Toronto, in which Chapnik J. ordered restoration of access pending appeal after a gap of two months.[^7] It is apparent from Chapnik J.’s reasons that she felt that the appellants had a strong arguable appeal on the merits.[^8] That is not so in the case before me.
[29] Taking everything into account, on the record before me, the appeal seems unlikely to succeed. Thus, if I order restored access now, it is likely that SE will have to endure the process of a second final separation. It is not in SE’s best interests to face this risk.
[30] I appreciate that this may seem unfair to CA. If this motion had been brought back in December, before access was terminated, access might have continued pending the appeal. The motion was not argued until March 2, 2017, through no fault of CA. In future, I would hope that these motions would be brought immediately. This court must deal with this motion on the facts of this case as they now exist. The test is the best interests of SE, not CA. And on the facts as they now exist, the answer is clear: it would not be in SE’s best interests to face the material risk of two final separations from CA. The motion is dismissed, without costs.
D.L. Corbett J.
Released: March 3, 2017
CITATION: Children’s Aid Society of Toronto v. C.A., 2017 ONSC 1487
COURT FILE NO.: FS-16-21299
DATE: 20170303
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Toronto
Applicant/Responding Party
- and -
C.A.
Respondent/Moving Party
DECISION
D.L. Corbett J.
Released: March 3, 2017
[^1]: Reasons of Spence J., para. 294.
[^2]: Reasons of Spence J., para. 238.
[^3]: Reasons of Spence J., para. 328.
[^4]: Reasons of Spence J., para. 264
[^5]: M.V.B. v. Children’s Aid Society of Ottawa, 2001 CanLII 28125 (ON SC), [2001] O.J. No. 2264 (SCJ), per Lalonde J.; P.(J.) v. Children’s Aid Society of Toronto, [2010] O.J. No. 2393 (SCJ), per Spies J.; G.(A.) v. Catholic Children’s Aid Society of Metropolitan Toronto, 1989 CanLII 4409 (ON SC), [1989] O.J. No. 616 (Dist. Ct.), per Conant D.C.J.; Catholic Children’s Aid Society of Toronto v. S.S.B., [2013] O.J. No. 2161 (SCJ), per Kiteley J.; N.D. v. Children’s Aid Society for the Regional Municipality of Hamilton Wentworth, [1995] O.J. No. 953 (Ont. Gen. Div.), per Philp J.; Children’s Aid Society of Toronto v. D.B., [2001] O.J. No. 4028 (SCJ), per Hoilett J.
[^6]: Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678, per Scherr J.
[^7]: R.L. v. Children’s Aid Society of Metropolitan Toronto, 1994 CanLII 4476 (ON SC), per Chapnik J.
[^8]: ibid., paras. 17, 19.