CITATION: CHILDREN’S AID SOCIETY v. A.S., 2017 ONSC 7700
COURT FILE NO.: FS-17-21413
DATE: 20171222
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Children’s Aid Society, Applicant/ Respondent in Appeal
AND:
A.S., Respondent/Appellant in Appeal
BEFORE: C. Horkins J.
COUNSEL: Anna Harris, for the Applicant/Respondent in Appeal
W. Milne, Duty Counsel, for the Respondent/Appellant in Appeal
HEARD at Toronto: December 21 2017
On appeal from the decision of Justice C.J. Jones of Ontario Court of Justice dated February 3, 2017
ENDORSEMENT
[1] The appellant A.S. is the mother of two children (“the mother”). The children are now 8 and 9 years of age.
[2] The Children’s Aid Society (“Society”) brings a motion to dismiss the mother’s appeal from the order of Justice C.J. Jones dated February 3, 2017, because she has not perfected her appeal in a timely manner.
[3] After the hearing of the Society’s motion, I granted the relief. The mother’s appeal was dismissed with reasons to follow. These are my reasons.
background
[4] On November 28, 2013, after a four day trial, Curtis J of the Ontario Court of Justice made the children Wards of the Crown, without access, for the purpose of adoption (“the Curtis order”).
[5] The mother appealed the Curtis order to this court and fresh evidence was allowed. Her appeal was dismissed by Kruzick J on November 7, 2014. The mother appealed to the Ontario Court of Appeal and this appeal was dismissed for delay.
[6] An adoptive placement for the children broke down and the children were returned to the Society’s care.
[7] The mother commenced a Status Review Application in which she requested an order terminating the order for Crown Wardship and placing the children in her care, or in the alternative, an order for access.
[8] A five day trial of the Status Review Application was held before Justice Jones. In lengthy reasons dated February 3, 2017, Justice Jones dismissed the mother’s Status Review Application. The mother was represented by counsel at the trial.
[9] On March 7, 2017, the mother filed a Notice of Appeal of Justice Jones' order listing 19 grounds of appeal.
[10] The mother has not ordered the transcripts from the trial before Justice Jones and the appeal has not been perfected as required by the Family Law Rules, O. Reg. 114/99.
[11] While the mother was assisted by counsel when filing her Notice of Appeal, counsel was not retained to represent her on the appeal. The mother was unable to obtain legal aid for the appeal.
[12] On April 18, 2017, a first Status Hearing was held. The matter was adjourned to allow the mother further time to determine if she would be able to retain counsel and/or order the trial transcripts.
[13] On May 15, 2017, a second Status hearing was held. The mother advised the court that she was unable to obtain the trial transcripts. The matter was not adjourned for a further status hearing. The Court endorsed that the Society could bring a Motion seeking to dismiss the appeal for delay, on notice to the mother.
[14] The Society’s motion first came before the court on December 14, 2017. When court started, the mother was not in attendance and could not be reached. At 12:05 p.m. the mother had not yet appeared. At the Society’s suggestion, the motion was adjourned to December 21, 2017, peremptory to the mother. She was given until December 19, 2017 to file responding material.
[15] On the return of the motion, the mother attended and was assisted by Duty Counsel. She has not filed any responding material on this motion.
[16] She tells the court that she wants to have access to the children.
Legal Test
[17] The test on a motion to dismiss an appeal for delay is set out in Children's Aid Society of Toronto v. L.T., 2016 ONCA 146 at paras 6-7 :
6 The test for dismissing an appeal for delay in civil actions was succinctly stated by Weiler J.A. in Paulsson v. Cooper, 2010 ONCA 21, at para. 2:
The factors a court should consider in deciding whether to grant this type of 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 any 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.
7 An added element in family cases involving children is the effect of delay on the best interests of the child. Stability and finality in custody issues are very important for children, especially younger children, and this too must be taken into account is assessing delay: see D.G. v. A.F, 2014 ONCA 436, at paras. 17, 33-34, citing the Children's Law Reform Act, R.S.O. 1990 c. C.12, s. 19(a), and Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13.
[18] For the reasons that follow, the mother’s appeal is dismissed.
Analysis
[19] Family Law Rule 38(12) states that the appellant shall within 30 days of filing the notice of appeal, file proof that the transcripts have been ordered. The transcripts are required on this appeal.
[20] The mother has not ordered the transcripts because she cannot afford to do so. There is no evidence that the mother’s financial circumstances will improve in the foreseeable future. She is not able to perfect her appeal.
[21] The subject matter of this appeal is child protection law and the need to promote the best interests and well-being of the two children.
[22] Time is of the essence in proceedings concerning the welfare of children. The Supreme Court of Canada has stated that the court must consider the importance of reaching a speedy resolution of the matters affecting children. As stated by Justice L'Heureux-Dubé, "…The Act requires it and common sense dictates it. A few months in the life of a child, as compared to that of adults, may acquire great significance" (Catholic Children's Aid Society of Metropolitan Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] S.C.J. No. 37 paragraph 44).
[23] Harm caused by delay may be presumed to result from prolonged temporary care as is reflected in the time limits prescribed for orders of society wardship under the Child and Family Services Act ( see Children's Aid Society of the Region of Peel v. S.J. [2009] O.J. No. 3783 (S.C.) [appeal dismissed [2009] O.J. No. 5468 (C.A.)]).
[24] The prejudice caused by the delay to the Society is not significant. The prejudice to the children in this case is overwhelming. The following timeline demonstrates this prejudice:
- On December 26, 2010, the children, then 1.5 years old and 8 months, were apprehended and placed in foster care for 6 months.
- The children were re-apprehended on April 24, 2012, after having lived with their mother for less than a full year
- Since April 24, 2012, the children have not lived with their mother.
- On July 2, 2013, a summary judgment motion was heard, when the children had been in the continuous care of the Society for over one year and two months. The court ordered a trial on the issue of disposition and this trial was held in late September 2013 before Curtis J.
- The decision was released in November 2013. The court made the children wards of the Crown with no access to the mother, for the purpose of adoption. At this point, the children were 4 and 5 years of age.
- After the mother exhausted her appeals, an adoption placement for the children failed and they returned to the Society’ care.
- The mother commenced a Status Review application and the trial of this application was heard by Justice Jones in June 2016. The application was dismissed and, as a result, the original order of Curtis J remained in place: Crown Wardship and no access for the purpose of adoption.
- The mother appealed to this court
[25] Almost seven years have passed since the children were first apprehended. With the exception of four months, they have resided in foster care without a permanent plan. They are now 8 and 9 years of age.
[26] The children are living with foster parents and doing well. The foster parents wish to adopt the children. The Society is in the process of assessing this plan.
[27] The paramount objective of the Child and Family Services Act, R.S.O. 1990, c. C.11 is to promote the best interests, protection and well-being of children. In assessing best interests, s. 37(3) directs the court to take into consideration the effect on the child of delay in the disposition of the case.
[28] The Child and Family Services Act promotes early permanency planning for children by imposing limits on the cumulative length of time that a child may be committed to the care of the Society, either by time-limited orders or by temporary care agreements.
[29] For a child who is under the age of six years old, the time-limit for cumulative time in care before the child must either be returned to the parent or to a member of the extended family, or be made a Ward of the Crown, is twelve months. However, where an appeal is made, this time-limit is deemed to be extended until the appeal is finally resolved. We are now well beyond the statutory time limit.
[30] The Society is prohibited from placing a child for adoption until the appeal period in respect of a Crown Ward order has expired, or until any appeal of the order has been finally disposed of or abandoned. As a result, adoption planning for these children has remained on hold since December 2014.
[31] The children deserve and are entitled to finality. It would not be in their best interests to continue this appeal when there is no prospect of the mother being able to perfect the appeal. The children require a stable, secure and permanent home without any further delay.
[32] Finally, the court must consider the merits of the mother’s appeal. The notice of appeal does not list any errors of law. The 19 grounds of appeal are all alleged errors of fact.
[33] To succeed on her appeal, the mother would have to show a palpable and overriding error in the judge’s factual findings (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.) at paragraphs 1, 10, 23 and 24).
[34] I find that this appeal has no merit. Justice Jones issued a 54 page decision. This is a well-organized and thoughtful decision. Justice Jones applied the applicable statutory criteria and appropriate legal tests. She considered all the evidence and came to a reasoned decision. The reasons include an extremely detailed consideration of the evidence. The findings of fact are clearly set out and supported by evidence.
[35] Sadly this is a case where the mother’s mental health impairs her ability to care for the children. This is supported by numerous finding of fact and discussed in detail in the decisions of Justices Curtis and Jones. Both courts found that the mother’s plan of care did not afford the children the security and stability that the children require. The courts also found that the mother’s access to the children was neither beneficial nor meaningful to them.
[36] In summary, the Society has clearly demonstrated that this is an appeal that must be dismissed.
conclusion
[37] The appellant’s appeal from the order of Justice C.J Jones dated February 10, 2017 is dismissed for delay.
[38] There is no order as to costs.
___________________________
C. Horkins J.
Date: December 22, 2017