CITATION: Children’s Aid Society of the Region of Peel v. S.C., 2017 ONSC 6184
COURT FILE NO.: FS-17-0124-00
DATE: 2017 10 17 DATE CORRECTED: 2017 11 23
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL v. S.C., P.S., R.C., and K.C.
BEFORE: Trimble J.
HEARD: October 3, 2017
COUNSEL: A. Rozario, Counsel for the Society
I. McCuaig, Counsel for the Respondent
P. Streeter, Counsel for the Respondent
H. Joshi, Counsel for the Office of the Children’s Lawyer
E N D O R S E M E N T
[1] The Peel Children’s Aid Society seeks an order dismissing for delay the mother’s March 14, 2017 Notice of Appeal from the February 13, 2017 decision of Dunn, J., in the CAS’ Summary Judgment motion, in which the Court awarded custody of a couple’s children to the father, allowed only supervised access for the mother, and provided access for the maternal grandparents in the discretion of the father. The father and the Office of the Children’s Lawyer support the CAS’ motion. The mother and her parents oppose. For reasons that follow, the CAS’s motion to dismiss for delay is allowed and the mother’s Appeal is dismissed.
Background
[2] The appellant mother (S.C.) and respondent father (P.S. Sr.) are the parents of three children: P. S. Jr. (DOB 25 November 2012), I. S. (DOB 25 November 2015), and R. C. (DOB 6 June 2011).
[3] The CAS has been involved with this family at several points since 1999.
[4] In 1999, both the CAS and the police were involved with the family because of the mother’s physical aggression toward two of her children (not those at issue in this matter). Justice Dunn noted that the mother was uncooperative with the Society’s investigation at that time and the children were placed with the maternal grandparents under Society supervision.
[5] In 2008, P. S. and I. S. were apprehended and placed in care because the mother was unable to care for them. They were placed with the maternal grandparents, again under supervision.
[6] Inn 2012, there were several incidents of concern to the Society. The Society assisted the family because of conflict between the Maternal grandfather and the mother. The latter was asked to leave the maternal grandparents’ residence. It emerged that time that the mother had mental health issues.
[7] Ultimately in December, 2012, the Court in Toronto placed P. S. and I. S., and the youngest child, R.C. in the joint care of the maternal grandparents and the parents, with whom the mother was residing. The parents received access to the children.
[8] In 2012 there were several incidences of concern to the society. The Society assisted the family because of conflict between the paternal grandfather and the mother who was asked to leave the maternal grandparent’s residence. It emerged at that time that the mother had mental health issues”.
[9] In April 2013, the maternal grandparents returned the children to their mother’s care without Court or CAS’ involvement. At the time. the Society was questioning whether apparent deficiencies in the mother’s parenting ability constituted a risk to the children. To her credit, the mother entered into a voluntary service agreement with the Society. As part of that agreement, the mother was to undergo a mental health assessment, which she declined to do.
[10] In the latter half of 2013 incidents occurred which made the Society question the mother’s parenting ability. These included emotional outbursts and their effect on the children, as well as the mother and the father’s conflict.
[11] In the spring of 2014, the mother admitted to the Society that she had been diagnosed bipolar disorder and post-traumatic stress disorder. The children were still experiencing their parents’ conflict. The mother, however, did not understand the impact upon her children of her inconsistent discipline. Still, the mother declined any assistance from the society. On July 14, 2014 the society took the position that the mother had used inappropriate physical discipline on P. S. Jr and I. S.
[12] In January 2016, the mother was charged with assaulting I. S. because of inappropriate physical discipline. The Society decided that the mother could only see I.S. under supervision.
[13] In March 2016, a temporary order was made placing the children with the maternal grandmother, under supervision, with the father having unsupervised access on weekends. The mother’s access was in the Society’s discretion. The Society stipulated that the maternal grandparents had temporary custody, and that the mother was not have access without the Society’s permission. The maternal grandparents violated that order and allowed the mother access without the knowledge or approval of the Society. This led the Society to conclude that the maternal grandparents and the mother could not be trusted to follow supervision agreement or Court orders. On the other hand, the society had no misgivings about P. S. Sr.’s parenting abilities. On September 2, 2016, the children were placed temporarily with him, under supervision. He was to facilitate supervised access to the mother and the maternal grandparents under the Society’s direction.
[14] From September 2, 2016 until February at 2017, the maternal grandparents did not request any supervised access, and have not had any since February, 2017.
[15] Beginning in November 2016, the mother’s conduct became more difficult. She was confrontational with the children and the access supervisors. She tried to influence the children to live with her. She was not insightful as to the effect that her emotional pressure would have on the children. She had heated confrontational phone calls with the Society’s workers. She refused to meet with the society to discuss her access.
[16] Dr. Betty Kershner, a psychologist, performed a parenting capacity assessment of the mother and issued a report dated November 23, 2016 which indicated several problems with the mother’s parenting. Dr. Kershner could not identify any intervention that would change the mother’s behaviour and attitude to parenting. The learned trial judge noted at paragraph 31 of his reasons that Dr. Kershner’s findings independently matched the observations of Society personnel.
[17] The Society also asked Dr. Vincent Murphy, another psychologist, to interview I. S. and offer suggestions as to how the child could move forward after the abusive treatment at the hands of her mother. At that time, the child was living with her maternal grandparents, seeing the father on weekends, but had no access to her mother. Dr. Murphy recommended counselling for both mother and child to explore ways to resolve there is a conflict between them.
Decision of Dunn, J., 13th February 2017
[18] The Society served its motion for summary judgment in August, 2016, which was heard on 5 December 2016. The Society filed detailed materials including affidavits from CAS workers, Dr. Murphy,’s report, Dr. Kershner’s report, notes and records from the Society, and an affidavit from the father. The maternal grandparents did not oppose the motion.
[19] The mother opposed the Society’s motion but filed no responding material, although she had 4 months to do so. The only material before the court that the mother had filed in the Application was her Answer to the Society’s initial protection Application, and her plan of care in response to the Society’s amended protection Application and plan of care.
[20] Dunn, J. reviewed the Society’s material. He also received submissions from the mother. He refused to accept an affidavit that she served and asked to file at the hearing. In her submissions, the mother denied that she ever abused the children and there was no need for findings that they were in need of protection. She asked that P. S. Jr and R. C. be returned to her, but conceded that I. S. should remain with the father for the time being. She said that she believed the Society was sending subliminal messages to the children to indoctrinate them and alienate them from her. She said that the father was not meeting the children’s physical, emotional, or psychological needs. She submitted that the father had problems that the society was not addressing, but acknowledged that she had spoken inappropriately in front of the children.
[21] Dunn, J. said that by her oral submissions, her Answer and plan of care, the mother clearly understood what the Society’s concerns were. She merely denied that there was any reason for concern. She denied that she hit the children. She accused the father of coaching them to make the allegations. She denied the Society’s position that her supervised access was “not going well” and accused the Society of ignoring the fact that she was “reaching out to them with all kinds of suggestions”. She denied that she was suffering from any mental disorder. She said that she would cooperate with the Society if the children were returned her notwithstanding that such cooperation had not been provided before.
[22] In the absence of any evidence on the motion from the mother, Dunn, J. found that he could grant summary judgment. Dunn, J. found that all three children were need of protection.
The Appeal
[23] The mother, with the assistance of counsel, prepared a notice of appeal which she signed and dated on March 14, 2017. By motion dated June 7, 2017, returnable on June 9, the mother sought an extension of time to serve the notice of appeal. Her lawyer’s assistant swore an affidavit whereby she confirmed that the notice of appeal was signed on March 14, 2017 and that it was not filed. The failure to file it within time arose from the fact that the process server did not successfully serve the notice of appeal, and did not return the documents to the mother’s lawyer despite repeated requests. As of May, 2017, the transcripts had been prepared.
[24] No one opposed the mother’s motion to extend time and, by order dated June 9, 2017, Andre, J. extended the time for filing the appeal, and ordered that it be served and filed by June 16, 2016.
[25] The mother served and filed her Notice of Appeal in compliance with Andre, J.’s order. The appeal has not been perfected, notwithstanding that the transcripts had been available since May. All the mother need to do was assemble her Appeal Record and include her Certificate regarding the evidence.
[26] In her affidavit filed in opposition to the motion to dismiss the appeal, the mother herself said, on information and belief from her lawyer, that her lawyer said that the appeal was never perfected because the lawyer had a very busy summer, is a sole practitioner with no permanent assistant, and, once he was advised in August 2017 that the Society wished to bring a motion to dismiss the appeal for delay, he stopped activity on the appeal and turned his attention to the motion.
[27] In the appeal before me, the mother filed an affidavit. While she claims as one of her grounds of appeal that the learned trial judge failed to accept her affidavit, that affidavit was not included in her motion material.
The Law
[28] The parties agree that the test for dismissing an appeal for delay is set out by the Court of Appeal in Paulsson v. Cooper 2010 ONCA 21, at paragraph 2 wherein Weiler, J.A. said:
The factors the court should consider in deciding whether to grant this type motion are well known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay and the explanation for the delay; any prejudice to the respondent caused by the delay, and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.
[29] The Court of Appeal added a further gloss to the test in Children’s Aid Society of Toronto v. T. L., 2016 ONCA 164 at paragraph 7, when Lauwers, J.A. said:
An added element in family cases involving children is the effect of delay on the best interest of the child. Stability and finality in custody cases are very important for children, especially younger children, and this too must be taken into account in assessing delay (citations omitted).
Positions of the Parties
[30] The Society concedes that the mother always had the intention to appeal. She has not, however explained the delay. Further, the justice of the case requires that the appeal be dismissed. The mother has filed nothing on this motion. It is her obligation to establish that she has an arguable appeal on the merits.
[31] The mother, relying on Children’s Aid Society of Toronto v. S. A., 2017 ONSC 553, says that because the mother’s section 7 Charter right to security of the person is engaged, this case should be viewed differently because of the importance of the rights being adjudicated. Section 7 rights are engaged when the Society seeks a protection order that removes a child from the person who had charge of the child prior to the Society’s intervention (the mother) and seeks to restrict her access to the child. Because of the importance of the mother’s section 7 rights, the appeal must be heard.
Analysis
[32] The motion to dismiss for delay is allowed and the Appeal is dismissed.
- Intention to Appeal within Time:
[33] The Society acknowledges that the mother had the intent to appeal within the time for bringing the appeal.
- Length of Delay
[34] The Society points to a delay of March 2014 to the hearing of this motion in October, 2017, a period of eight months.
[35] The delay between March, 2014 and June 9, 2017 was addressed by Andre J., in June 2017. Any delay up to that point in the calculation of a dismissal for delay, is purged by Andre J’s order and the mother’s compliance with that order. The period of delay to be addressed in the Society’s current motion, therefore, is four months. This is not an inordinate period of delay.
- The Reason for the Delay
[36] What is concerning about the delay – two of the four months since Andre, J.’s order – is that it because the mother, on receiving the Society’s motion to dismiss the appeal for delay, stopped any work on the appeal, notwithstanding the evidence on the mother’s behalf that the transcripts were ready as of May 2017(three months before the Society served its motion, and that the only thing the mother had to do to perfect her appeal was assemble an Appeal Record and a certificate with respect to the evidence. Regardless of the mother’s stated desire to continue with the appeal, her counsel stopped working on the appeal once the motion to dismiss for delay was served. This was a conscious decision that the mother, or those acting on her behalf, made that causes further delay in this matter.
- The Justice of the Case and Merits of the Appeal.
[37] This is the most significant factor in determining whether a motion to dismiss an appeal for delay should be granted. The onus is on the mother to establish that there is some merit to her appeal. She must show that there is an arguable appeal.
[38] The notice of appeal lists five errors which Dunn, J. is alleged to have made:
a) he found that the children suffered physical harm which was unconfirmed by an investigation;
b) he found that the three children were need of protection based on old information from 2012 and 2016;
c) he accepted the conclusions of the parent capacity assessment without allowing the mother the opportunity to cross examining assessor;
d) he found that the appellant had provided nothing more than denials of the society’s assertions when the appellant was without legal counsel and brought an affidavit to the hearing, which was not admitted;
e) he violated the appellant’s right to a fair hearing guaranteed by section 7 of the Charter by refusing to admit the mother’s affidavit tendered at the time of the hearing and proceeding with the hearing while the mother was unrepresented.
[39] Alleged errors a, b, c and d, above, are factual errors. In order to succeed in an appeal from a finding of fact, the appellant must show that the trial committed a palpable an overriding error. The wife filed nothing on this motion other than her affidavit which contains positions. She filed a no evidence to support the argument that the findings of fact from which she appeals may be palpable and overriding errors. The transcripts were not filed. The learned trial judge reviewed the evidence before him and explained his conclusions.
[40] The fifth ground of appeal is from a legal finding. The test on appeal is correctness.
[41] The mother says that her s. 7 right to security of the person is engaged. Since this is such an important right, the appeal must be heard.
[42] The importance or magnitude of the issue on appeal does not determine whether it has arguable merit. There must be a factual foundation to the issue. The mother has not shown that this aspect of the appeal has arguable merit. I say this for the following reasons, each of which is sufficient to support my conclusion on the arguable merits of the case:
The Charter issue was does not appear to have been raised at the summary judgment motion, when the affidavit was refused.
Legal conclusions must be grounded in facts. The mother offered no evidence to suggest that the learned trial judge was unjustified in refusing to admit the affidavit the mother tried to file at the summary judgment motion. Dunn, J. explained that, notwithstanding that the motion for summary judgment was filed in August and heard in December, the mother filed nothing in response to the motion for summary judgment.
The mother did not file that affidavit at the hearing of this motion. In order to find that there was a violation of section 7 rights based on the refusal to accept the affidavit evidence and proceeding with the hearing, there must be some evidence to suggest that the affidavit would have made a difference had it been filed.
[43] Notwithstanding the foregoing, I must still consider the best interests of the children.
[44] As the Court of Appeal has held, it is normally in the best interest of the children to have stability and finality in custody disputes, especially when the children are young. In this case, the children are 15, 12, and 6 years of age. The father has had effective sole custody for 13 months. The mother has not sought, in any sustained way, access with her three children. Considering the absence of any information or evidence to suggest that there may be merit to the appeal as framed, I conclude that it is in the best interest of the children that finality come to their custodial arrangements.
Costs
[45] The Society, the father and the OCL, having succeeded in the motion, are entitled to their costs. If they seek their costs, I will deal with cost submissions, in writing, submissions not to exceed three pages excluding bills of costs or supplementary material. The Society’ submissions are to be delivered by 4 PM 25 October, 2017, and the mother’s response by 4 PM on 8 November, 2017.
Trimble, J.
DATE: October 17, 2017 DATE CORRECTED: November 23, 2017
CITATION: Children’s Aid Society of the Region of Peel v. S.C., 2017 ONSC 6184
COURT FILE NO.: FS-17-0124-00
DATE: 2017 10 17 DATE CORRECTED: 2017 11 23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL v. S.C., P.S., R.C., and K.C.
BEFORE: Trimble J.
ENDORSEMENT
Trimble J.
DATE: October 17. 2017 DATE CORRECTED: November 23, 2017