Court File and Parties
OTTAWA COURT FILE NO.: 16-DC-2235 DATE: 2017/03/27 ONTARIO SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF I.G. […], 2003, and Z.M.L.C. […], 2014
BETWEEN:
Children’s Aid Society of Ottawa Applicant – and – I.C. Respondent – and – I.G. Respondent
Counsel: Marguerite Lewis, for the Plaintiff/Applicant Self-Represented (for I.C.) Allison Lendor, for the Child (I.G.)
HEARD AT OTTAWA: March 23, 2017
REASONS FOR DECISION
KERSHMAN J.
[1] A motion was brought by the Children’s Aid Society to:
(a) Set aside the Order of the Honourable Justice Callum MacLeod dated December 29, 2016 which granted an extension of time to file, obtain transcripts, and serve materials on the Appellant and;
(b) Dismiss the Appeal for Delay pursuant to Rule 38(30) of the Family Law Rules.
FACTUAL BACKGROUND
[2] This has been an ongoing matter for the Children’s Aid Society and involves two children, namely, I.G., born […], 2003 and Z.M.L.C., born […], 2014.
[3] On June 13, 2016, the parties argued a summary judgment/hybrid proceeding before the Honourable Madam Justice Jennifer Mackinnon in which the Children’s Aid Society workers were cross-examined on affidavit evidence and Ms. I.C. and Dr. Floyd-Wood of the Family Court Clinic gave viva voce evidence.
[4] On August 2, 2016, Justice Mackinnon granted an Order of Crown Wardship be given with reasons for that decision.
[5] On August 30, 2016, the Children’s Aid Society was served with the Appellant Mother’s Notice of Appeal and Certificate respecting evidence.
[6] By late November 2016, the Appellant had not served the Children’s Aid Society with the Appellant’s Appeal Record and Factum or provided any proof that the Appellant had ordered a transcript of evidence within 30 days after filing the Notice of Appeal in accordance with Rule 38(12) of the Family Law Rules.
[7] On November 25, 2016, the Children’s Aid Society served a Notice of Motion to have the Appellant’s Notice of Appeal dismissed for delay.
[8] In December 2016, a motion was made before the Honourable Justice Callum MacLeod to extend the time for Ms. I.C. to order the trial transcript and perfect the appeal. On December 29, 2016, Justice MacLeod made the following endorsement:
“December 29, 2016 The time to order a transcript is extended to January 21, 2017, and the time to perfect the appeal is extended to the end of February 2017, provided the transcript has been ordered by the first deadline. If the Appellant fails to order the transcript or, having done so, fails to perfect the appeal by the deadline, the Registrar shall dismiss the appeal for delay.”
CHILDREN AID SOCIETY’S POSITION
[9] The Children’s Aid Society argues that the decision of Master MacLeod should be set aside because no notice of the motion was ever provided to the Children’s Aid Society, which has an office in the courthouse. The Society did not receive Justice MacLeod’s Endorsement of December 29, 2016, until January 9, 2017.
[10] The Society argues that they were not properly served and that the Order should never have been granted.
[11] The Society argues that the factors that the Court should consider in deciding whether to grant a motion to set aside an Order for Dismissing an Appeal for Delay are well established, which are:
(a) Whether the Appellant had the intention to appeal within the time for bringing an Appeal; (b) The length of the delay; (c) Any explanation for the delay; (d) Any prejudice to respondent caused by the delay; and (e) The justice of the case.
(Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2)
[12] The Society argues that even if the Court finds no fault with the Appellant’s delay in bringing the appeal on August 31, 2016, and not perfecting in the subsequent three months and more without requesting an extension, the Court is bound to consider, “any prejudice to the Respondent by the delay” and “the justice of the case” which requires a consideration of the appeal on the merits (Paulsson, at para. 5).
MS. I.C.’S POSITION
[13] Ms. I.C. indicates that she ordered the transcript on time and is in a position to obtain it once it is completed and is prepared to complete the Appeal documentation.
ANALYSIS
[14] Rule 3.02(1) of the Rules of Civil Procedure, R.O. 1990, Reg. 194, provides that the Court may extend the time prescribed by the Rules on such terms that are just.
[15] This motion involves a request for leave to extend the time to perfect an appeal. At the same time it is useful to consider the factors that apply when determining whether to exercise discretion to extend the time for filing a notice of appeal. These are set out in the case of Monteith v. Monteith, 2010 ONCA 78, at para. 11, and are identical to those set out in Paulsson. Again, they are:
(a) Whether the appellant formed an intention to appeal within the relevant period; (b) The length of the delay and explanation for the delay; (c) Any prejudice to the Respondent; (d) The merits of the appeal; and (e) Whether the “justice of the case” requires it.
[16] While not expressly set out in the Endorsement, the Court finds that Justice MacLeod considered those factors at the time that he made his decision on December 29, 2016. He dealt with the relief based on what he determined was just.
[17] Looking at the relevant factors as a whole, the Court finds that he has considered those factors in coming to his decision, as he sought fit.
[18] The decision of Justice MacLeod on the motion is required to be given a great deal of deference by an Appellant Court (see Khimji v. Dhanani (2004), 69 O.R. (3d) 790, at para. 14). As stated by Justice Doherty in that decision, “[s]trong deference is due to the decision of those in the trial courts who are responsible for the day-to-day maintenance of an efficient and just system of trials” (at para. 36).
[19] This Court finds no reason to doubt that the factors for an adjournment were not considered by Justice MacLeod.
[20] The Court is aware that the extension of this matter will, in fact, delay the time for the hearing of this appeal and that the issue in the case is Crown Wardship of two children.
[21] In the Court’s view, Justice MacLeod was aware of those issues at the time he granted the extension order.
[22] The Court is satisfied that the transcripts were ordered within the time ordered. In fact, they were ordered on January 10, 2017 based on Certificate/Proof of Ordering Transcript for Appeal. It was estimated that the length of the transcript was approximately 1,600 pages and it would take until April 10, 2017, to complete the transcript.
[23] The Court notes that in accordance with Rule 38(21) of the Family Law Rules, the 60 day Appeal period begins to run from the time that the transcript is received, not ordered.
[24] Since the transcript could not be received prior to April 10, 2017, as set out in the Certificate/Proof of Ordering Transcript for Appeal, the second deadline of the end of February 2017 to perfect the Appeal is inappropriate because that deadline could never be met. Without having the transcripts it is not possible to perfect the Appeal.
[25] Ms. I.C.’s advised the Court that she had applied for Legal Aid and that Legal Aid refused that request. She then appealed that decision. The Appeal of that decision was finally determined on or about November 3, 2016, at which time she was advised that her Appeal was refused and she would not be entitled to Legal Aid.
[26] The Court is aware that these children have been in care for a lengthy period of time and that it is recommendation of the Children’s Aid Society and counsel for I.G. that the Appeal not proceed and that, as Crown Wards, the children be placed.
[27] While not specifically set out in his endorsement, the Court finds that Justice MacLeod had previously considered the prejudice to the CAS and the children, in coming to his decision to grant an extension of time.
[28] The Court is satisfied that Justice MacLeod had the authority and the right to use his inherent jurisdiction of the Court to extend the time for the filing of the appeal and materials and to perfect the Appeal.
[29] This Court in turn is satisfied that Justice MacLeod took all of the relevant factors into consideration when he granted the adjournment. Therefore this Court is satisfied that the granting of the adjournment was within his jurisdiction. As such this Court is not prepared to interfere with Justice MacLeod’s discretion.
[30] Justice MacLeod chose to grant the Order notwithstanding the fact that the Respondent Children’s Aid Society had not been served with the materials. The Court notes that this was done over the Christmas holidays.
[31] This Court dismisses the Appeal brought by the Children’s Aid Society.
[32] Based on the aforesaid reasons, the Court is not prepared to dismiss Ms. I.C.’s appeal for delay.
[33] The Court makes the following orders in relation to this matter going forward:
(a) Ms. I.C. will have 60 days to perfect her appeal from the date that the transcriptionist sends a certificate confirming that the transcripts have been completed. If the appeal is not perfected within the aforesaid time limit, the appeal will automatically be dismissed with no further right to seek an extension of the time to file the appeal. (b) The Children’s Aid Society will have 60 days to respond to the appeal. (c) The parties are to attend a Trial Readiness Court on October 2, 2017 at 9:00 a.m. (d) The appeal will be heard by the Divisional Court Appeal Panel during the week of November 20, 2017. (e) All of the timelines required to be met by Ms. I.C. are pre-emptory to her including attendance at the Appeal Hearing. No further delays or adjournments will be allowed due to the length of time that the children have been in care.
COSTS
[34] There will be no order as to costs.
[35] Order accordingly.
Mr. Justice Stanley Kershman