Ontario Superior Court of Justice

ONSC 4358 Court File No.: FS-18-5775-00 Date: 2018-07-13

B E T W E E N:

Kenora-Rainy River Districts Child and Family Services Respondent Mr. D. Elliott, for Kenora-Rainy River Districts Child and Family Services

- and -

S. (D.) Appellant Ms. K. Ralko, for the proposed Appellant Ms. M. Simone, for the Office of the Children’s Lawyer

Heard: July 11, 2018, at Kenora, Ontario

Madam Justice H. M Pierce

Reasons on Motion to Extend the Time to File a Notice of Appeal

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Introduction

[1] The moving party, Ms. S., is the mother of three children, T.S., J.S., and L.S., who are now 17, 14, and 7 years of age, respectively. The children were apprehended on May 5, 2015 and found to be in need of protection on January 28, 2016. The disposition hearing was conducted on December 12, 2016, January 25, and April 12, 2017. By virtue of the order of Mr. Justice P. Bishop on April 24, 2017, the children were made Crown wards with limited supervised access to the mother. The father did not participate in the protection proceedings.

[2] Pursuant to Family Law Rule 38(5), the limitation for serving and filing a notice of appeal on all parties is thirty days after the decision sought to be appealed. Counsel for Ms. S. submits the limitation expired on May 24, 2017.

[3] Ms. S. was represented by Mr. Karlstedt during the protection proceedings. Her present counsel took no part in those proceedings. The children were represented during the disposition hearing by counsel from the Office of the Children’s Lawyer, Ms. Simone, who also made submissions on this motion.

[4] Ms. S. moves for an order extending the time to file her appeal. The motion was first returnable on April 25, 2018, but was further adjourned to permit the parties to file facta and related materials.

Discussion

[5] Counsel for Ms. S. and Kenora-Rainy River Districts Child and Family Services (“the Society”) agree that the criteria for determining whether an extension should be granted for leave to appeal are set out in Issasi v. Rosenzweig, 2011 ONCA 112 at para. 4 as follows:

1. whether the appellant formed an intention to appeal within the relevant period;
2. the length of the delay and explanation for the delay;
3. any prejudice to the respondent;
4. the merits of the appeal; and
5. whether the “justice of the case” requires it.

[6] As the Court of Appeal observed at para. 5 of the Issasi case, the first two factors may be considered together. Mr. Elliott characterized whether the mother formed an intention to appeal within the relevant period as a “gateway issue.”

[7] When did the mother form an intention to appeal? What is her explanation for the delay?

[8] The moving party filed an affidavit sworn by Ms. Brown, a legal assistant in Ms. Ralko’s firm, with respect to Ms. S’s intention to appeal and the explanation for the delay. She indicated that Ms. S. was represented at trial by counsel who was acting pursuant to a Legal Aid certificate. Ms. Brown states at para. 4 of her affidavit:

4. Ms. [S.] has advised our office, and I verily believe it to be true, that she immediately formed the intention to appeal the decision that three of her children be made Crown wards.

[9] The Society objects to this affidavit on the grounds that it does not represent the best evidence concerning the mother’s intention to appeal. I agree with this submission. There is no direct evidence about when the mother formed the intention to appeal. The statement is, at best, hearsay, and it is hearsay for which the source is not attributed. Had the Society wished to cross-examine the mother about when she formed her intention to appeal, this affidavit would hardly have been probative. The information about when the mother formed her intention to appeal is uniquely within her knowledge.

[10] The Society also submits that there is no direct evidence of Ms. S.’s intention to appeal within thirty days and no evidence about Ms. S’s level of sophistication to understand the urgency of doing so. I also agree with this submission. She was represented by counsel from the outset and her counsel sent an agent to represent him when judgment was announced. There is no evidence as to what advice her counsel gave her with respect to the time to file an appeal. There is no explanation as to why she was not the affiant on the critical point of when she decided to appeal.

[11] The Brown affidavit indicates that the Legal Aid office issued a certificate on July 20, 2017. Although the Legal Aid worker noted that the client applied for Legal Aid “in a reasonable time” after the judgment, there is no evidence about precisely when Ms. S. applied for Legal Aid in order to appeal. The Legal Aid worker also indicates there was “some delay” in Ms. S. providing her financial information.

[12] Ms. Ralko’s office was contacted by Legal Aid in August, 2017 (the date was not specified in the Brown affidavit), and it accepted the Legal Aid certificate in September, 2017. The precise date the certificate was accepted was also not specified.

[13] Ms. Brown contacted Mr. Karlstedt’s office by telephone on September 14, 2017 in an effort to obtain the file from the disposition hearing. Mr. Karlstedt’s office replied the same day, sending orders, court endorsements, the agreed statement of facts filed at the hearing, a settlement conference brief, business records and the decision.

[14] On November 27, 2017, Ms. S. signed a direction to her former solicitor to release her file to Ms. Ralko. On December 5, 2017, Ms. Ralko’s office sent a facsimile request to Mr. Karlstedt’s office to release the balance of the file. When she did not receive it, her office followed up with Mr. Karlstedt who advised on January 30, 2018 that he would courier the file. Nevertheless, it was not sent.

[15] When the file did not arrive, Ms. Brown made further inquiries of Mr. Karlstedt’s assistant on March 5, 2018 who promised to follow up the next day. The file finally arrived in Ms. Ralko’s office on March 15, 2018. Ms. Brown states that counsel was then able to begin a “substantial review of the trial proceedings.” The motion to extend the time for leave to appeal was issued on April 10, 2018.

[16] The Society relies on Carpenter v. Carpenter, 2016 ONCA 313 in its submission that even as an unrepresented party, Ms. S. could have and should have filed a notice of appeal within the limitation period.

[17] In the Carpenter case, the husband was unrepresented but assisted on motion by his former counsel. In Mr. Carpenter’s presence, the trial judge adjourned both parties’ motions and ordered Mr. Carpenter to pay costs within ten days, failing which his pleadings would be struck. When he did not pay the costs, his pleadings were struck and the case proceeded without further notice to him as an uncontested trial. A final order was issued on April 17, 2014.

[18] Mr. Carpenter contended that he did not learn of the final order until May 29, 2014 and did not appreciate the significance of having his pleadings struck because he was unrepresented. He took several months to retain counsel and then took more than a year between launching the motion for an extension to appeal and having it heard because he claimed he was trying to settle with the opposing party. He alleged that there were “numerous factual and legal errors” in the decision. The motion for leave for an extension to appeal was heard on April 6, 2016 and dismissed.

[19] At para. 16, the Court of Appeal commented:

The fact that Mr. Carpenter was self-represented does not excuse his failure to comply with the necessary time limit or, once he was aware of the Final Order, to move promptly for an extension of time. Any participant in litigation, including a self-represented party, has a responsibility to familiarize himself or herself with the procedures relevant to the case….

[20] In this case, Ms. S. was present in court with counsel when Justice Bishop announced his decision: that the children would become Crown wards. Regardless of the terminology, Ms. S. knew at that point that the children would not be returning to her care. They had been in Society care almost two years by that time. Ms. S. also knew what access had been ordered. It was a continuation of the interim access previously ordered. She was then represented.

[21] The Society submits that as an adjunct to his Legal Aid certificate, her then counsel might have drawn a pro-forma notice of appeal. The particulars could have been amended later. Alternatively, Ms. S. might have sought assistance from Duty Counsel, from a member of the private bar, from her new counsel or filed one herself. Unfortunately, nothing was done and the matter dragged on for months.

[22] The next issue is whether the respondent will be prejudiced. In this context, prejudice relates to the children, not to the Society. Will the children be prejudiced if leave to appeal is granted? I conclude that they will.

[23] Ms. S. submits that there is no imminent adoption planned for the children and that permanency planning “is in flux.” She argues that the children are not therefore prejudiced by the delay involved in an appeal.

[24] Respectfully, children can be prejudiced by the uncertainty clouding their future even if an adoption placement is not imminent. Their lives go on. Their needs for stability and security must be met.

[25] In this case, the Society had no notice of the mother’s intention to appeal until eight months after her Legal Aid certificate was granted. As mandated by statute, it proceeded with permanency planning in the meantime.

[26] The evidence on this motion and the submissions by counsel for the children indicate that the children are now substantially engaged in permanency planning, which, for the two oldest children, involves proposed care by extended family members. In addition, plans have been made regarding the children’s education. With respect to the youngest child, she is in a specialized long-term foster placement pending a more permanent arrangement.

[27] The children’s counsel submitted that during her contact with them in early May, 2018, the children are happy with the permanency plans as they are developing. They are building relationships. Their counsel expressed concern about further delay in resolution of the children’s status. Further permanency planning will be halted if leave to appeal is granted, leaving the children and their proposed future care-givers in a state of uncertainty.

[28] Do the merits of the appeal indicate that an extension should be granted? As counsel for Ms. S. submits, the function of this court is not to determine whether the appeal will succeed, but rather to decide whether the appeal is meritorious: Jones v. Jones, 2013 ONSC 1876 at para. 24. Some assessment of the merits of the appeal must be made “to determine whether the appeal has so little merit that this court could reasonably deny the important right of appeal.”

[29] Ms. S. submits that the trial judge made errors of fact and law in reaching his decision. I do not find this argument persuasive for the following reasons.

[30] Ms. S. contends that he erred in law by failing to consider less disruptive alternatives to Crown wardship. The Society counters that no evidence about any alternative to Crown wardship was presented by Ms. S. Interestingly, the permanency planning in which two of the children are now engaged involves extended family placements identified by the children’s father after Crown wardship was granted.

[31] Ms. S. also submits that the trial judge failed to consider a supervision order or to increasing the mother’s access to the children. This argument has little merit. A very extensive agreed statement of fact was filed at trial, detailing all of the Society’s involvement with Ms. S. and her family from 2012 forward. This agreement identified care issues such as school attendance, supervision, response to emergencies, failed housekeeping to the point of health risks, lack of child safety measures, supervision of medication and a myriad of other issues. The agreed statement of fact also identified extensive efforts by the Society to support the mother in her parenting, tantamount to a supervision arrangement, albeit voluntary.

[32] After the children were found to be in need of protection, the eldest child was returned to the mother under conditions amounting to a protection order. The child was re-apprehended almost immediately due to the mother’s inability to care for her.

[33] At the conclusion of trial and after hearing Ms. S. and other witnesses testify, the trial judge concluded at p. 7 of his judgment that “the mother is not capable of protecting these children.” There was a strong evidentiary foundation for this conclusion, based on Ms. S.’s own admissions.

[34] Ms. S. submits that the trial judge did not consider the children’s wishes in his judgment, an important factor since two of the children were teenagers. This argument has little merit. The children were represented by the Office of the Children’s Lawyer at trial, and on this motion. In a child welfare proceeding, the children’s wishes do not take precedence over protection considerations. It is noteworthy that the eldest child, who is now 17, has elected to remain in care rather than return to her mother.

[35] Ms. S. also contends that the trial judge made errors in fact-finding with respect to sexual misconduct between the children and there was no such proof. However, she concedes at para. 48 of her factum that one Society witness testified that these concerns were verified. Thus, there is little merit to this argument as well.

[36] Does the justice of the case require that an extension of time for appeal be granted? I conclude that it does not.

[37] Child welfare legislation carries with it an imperative that children’s status should be determined expeditiously. In Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 at p. 208, the Supreme Court of Canada declared, “…time is of the essence in proceedings concerning the welfare of children.”

[38] Mr. Justice Rosenberg refused an extension of time to appeal in a case called S. (L.J.) v. Kenora-Patricia Child and Family Services. In doing so, he made the following observations:

1. The test for granting an extension of time is whether the justice of the case requires it. In child protection matters that requires a consideration of the best interests of the child. Delay in child protection matters is a grave concern as manifested in the legislation, most obviously in s. 69(5) of the CFS Act, which provides that no extension of trial may be granted where the child has been placed for adoption…. (2) Over 2 years have elapsed since the decision of Bishop J…. (5) These children need and are entitled to some stability in their lives. Any further delay will prejudice their interests and frustrate the intention of the legislation. In my view, it is in the best interests of the children that an extension of time be refused. I consider this to be the most important factor in the justice of the case.

[39] In my view, Justice Rosenberg’s reasoning applies to this case. For the reasons set out above, I conclude that it is in the best interests of the children that an extension of time to file a notice of appeal should be refused. Motion dismissed.

Released: July 13, 2018 The Hon. Madam Justice H.M. Pierce