Court File and Parties
COURT FILE NO.: FS-19-8968 DATE: 20190524 ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the Child, Youth and Family Services Act, S.O. 2017, c. 14, Schedule 1: AND IN THE MATTER OF the children A.T.W. (d.o.b. July 12, 2014), and N.T. (d.o.b. January 18, 2006)
BETWEEN:
Catholic Children’s Aid Society of Toronto Applicant/Respondent on Appeal – and – A.T. Respondent/Appellant – and – B.W. Respondent on Appeal – and – T.M. Respondent on Appeal
COUNSEL: Alec Duncan, for the Applicant/Respondent on Appeal (Catholic Children’s Aid Society of Toronto) A.T., on her own behalf (Self-represented) Tammy Law, for B.W. Catherine Bellinger, for the OCL., representing only the child N.T.
HEARD: May 23, 2019
WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87 …
Order excluding media representatives or prohibiting publication
(7) Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
Prohibition re identifying child
(8) 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.
Prohibition re identifying person charged
(9) 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 …
Offences re publication
(3) 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.
RULING ON MOTION
C. Gilmore, J.
OVERVIEW
[1] The appellant, A.T. (“the mother”) intends to appeal the orders of Pawagi, J. (“the trial judge”) dated January 29 and March 7, 2019. Her appeal was not filed on time. This motion relates to the mother’s request to extend the time for filing her appeal.
[2] This motion was originally scheduled to be heard on April 30, 2019. The respondent, B.W. (“Mr. B.W.”) sought an adjournment as he had only recently retained his counsel, Ms. Law. The mother opposed the adjournment as she did not want this matter delayed. The adjournment was granted with terms including filing deadlines for certain material and an order that the matter was peremptory on all parties proceeding on May 23, 2019.
[3] The January 29, 2019 order was an oral judgment made by the trial judge immediately following the 19 day trial. Her detailed and lengthy reasons were published on March 7, 2019. On January 29, 2019 the trial judge found both children in need of protection pursuant to ss.72 (h) and (k) of the Child, Youth and Family Services Act (CYFSA). The trial judge placed the child A.T-W. in the care of her father, Mr. B.W. and the child N.T. in the care of his father, the respondent T.M. (“Mr. T.M.”). Both placements were made subject to six month supervision orders. A status hearing must be held no later than July 29, 2019.
[4] Mr. B.W. participated in the trial and consented to the finding that A.T-W. was in need of protection and consented to the supervision order. Mr. T.M. was in default on the Amended Protection Application and did not participate in the trial. He consented to N.T. being placed in his care subject to a six month supervision order.
[5] The OCL, represented by Ms. Bellinger, was appointed only to represent N.T. as A.T-W. was too young to have legal representation. Ms. Bellinger supported the findings of the trial judge and the placement of N.T. with Mr. T.M.. At the motion, Ms. Bellinger supported the position of counsel for the Catholic Children’s Aid Society of Toronto (“CCAST”) and counsel for Mr. B.W., Ms. Law.
[6] Prior to trial, N.T. was in the care of Mr. T.M. and subject to a supervision order. A.T-W. was in the care of her mother and subject to a supervision order with extensive conditions. At the conclusion of trial, the trial judge placed A.T-W. in the care of Mr. B.W. after making negative findings with respect to the mother’s credibility and findings that the A.T-W. was in need of protection on the basis that she was at risk of emotional harm in her mother’s care and that the mother had been unavailable to care for her. The mother was granted access to A.W-T. twice weekly as supervised by the CCAST.
[7] On March 20, 2019, 50 days after the oral judgment, the CCAST received a first draft of the mother’s Notice of Appeal. On March 26, 2019, the CCAST received an amended version of the Notice of Appeal which was the version filed with the court.
[8] The mother represented herself at the motion. Although her materials and submissions were often rambling and disorganized, she was able to adequately articulate her position with respect to the evidence to support the test for leave set out in the case law.
[9] While required to deliver any reply by May 21, 2019, the mother brought her reply with her to court on the day of the motion. It was comprised of an affidavit with lengthy exhibit materials. No extra copies were available for the court or counsel. Time was given to counsel to review the reply material and determine their position. Counsel did not object to the material being filed. As such, the court reviewed and heard submissions on the reply material despite the lack of proper service and filing. Latitude was given to the mother given her status as a self-represented litigant and the fact that she had been away on vacation.
THE TRIAL DECISIONS
[10] The trial judge released an oral ruling immediately following the conclusion of the trial because she explained that “the allegations are very serious and urgently need to be addressed.” The trial judge went on to make the following findings in her oral judgment:
a. There was absolutely no evidence that Mr. B.W. had sexually abused A.T-W. despite the repeated allegations made by the mother; b. The evidence provided by the mother at trial in support of her allegations was concerning and not rooted in reality; c. The mother’s beliefs and actions in relation to A.T-W. posed a risk to N.T. whom the mother had voluntarily placed in the care of Mr. T.M. prior to trial; d. The trial judge made the findings under s.74 (h) and (k); e. It is in the children’s best interests that A.T-W. be placed with Mr. B.W. and that N.T. remain with Mr. T.M., both subject to a six month supervision order; and f. It would not be in A.T.-W.’s best interests to remain in the mother’s care as she was found to be in breach of major conditions of the existing supervision order including refusing to allow access to Mr. B.W., continuing to make unfounded claims of sexual abuse against Mr. B.W., and continuing to photograph and examine the child’s genitalia for signs of sexual abuse.
[11] In her detailed reasons dated March 7, 2019, the trial judge made the following additional findings:
a. The recordings and photographs of A.T-W. provided by the mother did not support her contention that A.T-W. had been sexually abused by Mr. B.W.. b. A.T-W. was not afraid of her father nor did her alleged “disclosures” of sexual abuse prove anything. c. The allegations made by the mother concerning Mr. B.W.’s behaviour were baseless. d. The witnesses called by the mother were so aligned with her that their testimony was unhelpful. e. Based on the opinion of the participant experts who testified at trial, the mother has mental health issues including PTST, Adjustment Disorder with Anxiety and Mood Disorder. The mother has a history of abuse and trauma which may have resulted in her being hypervigilant around the possibility of sexual abuse occurring to her daughter, to the point of being obsessional. The mother may be delusional but has refused medication for psychosis. The mother’s beliefs and actions stem from her mental illness. f. The mother’s emotional “dysregulation” played out in the court during the trial including shouting, accusations, swearing, raising her voice and sarcasm. g. Dr. Ricciardi was retained by Mr. B.W. to give an expert opinion regarding the risk of emotional harm to A.T-W., based on a summary of concerns provided to him and filed with the court. His expert opinion was that the child would be at risk with respect to her overall emotional and psychological development should the status quo remain. h. The mother is unable to cooperate in a relationship of trust with CCAST or any professional. The mother has made a complaint about every professional involved in this proceeding. i. The mother breached the supervision order when A.T-W. was in her care as follows: i. She continued to examine her daughter for sexual abuse. ii. She continued to make audio and video recordings of her daughter. iii. She continued to make complaints to third parties about Mr. B.W.’s alleged sexual abuse of A.T-W. iv. She did not follow the recommendations of her psychiatrist or attend trauma counselling. v. She did not work cooperatively with CCAST. j. Mr. B.W. was a credible witness who has a close relationship with A. T-W. He has cooperated fully with CCAST. The witnesses he called were credible and helpful to the court. Any delay placing A.T-W. with her father would increase the risk of emotional harm to her.
THE APPEAL
[12] In her Notice of Appeal dated March 26, 2019, the mother seeks the following relief in the relation to the February and March orders of the trial judge (my summary):
a. An order setting aside the findings under s. 72(2) (k) and 72(2) (h) of the CYFSA in relation to the children A.T-W. and N.T. and dismissing the CCAST’s Protection Application. b. In the alternative to the above, an order placing the children in the care of the mother without a supervision order. c. In the alternative to the above, an order placing the children in the care of the mother with a six month supervision order with terms including access to A.T-W. by Mr. B.W.. d. In the alternative to the above, the mother to have supervised access to A.T-W., a minimum of three hours, three times per week. e. In the alternative to the above, re N.T., an order that N.T. be placed in the care of Mr. T.M., subject to a six month supervision order with terms. f. Costs.
[13] The grounds for the appeal are as follows:
a. The trial judge erred in finding both children in need of protection; b. The trial judge erred with respect to the finding pursuant to s.74(2)(k) and (h) where; i. the parent was only briefly detained years prior to trial; ii. the only expert evidence was based on hypothetical situations without any assessment of the children; iii. the trial judge failed to follow relevant appellate authority; c. The trial judge erred in her analysis of the best interests of the children; and d. The trial judge erred in the manner of the releasing of her decision.
THE TEST FOR LEAVE
[14] Rule 38(5) of the Family Law Rules requires that an appeal from a final order of the Ontario Court of Justice may be started within 30 days after the date of the order or decision being appealed from by serving a notice of appeal on every other party, the clerk of the court where the order was made and every other person entitled to notice, and filing the notice of appeal within ten days after service.
[15] It is undisputed that the mother did not file her appeal within 30 days of the January 29, 2019 decision.
[16] According to Bruno Appliances and Furniture v. Cassels Brock & Blackwell LLP, 2011 ONCA 67, the factors for this court to consider when determining whether to exercise its discretion to grant leave to extend the time for filing an appeal are as follows:
a. A reasonable explanation for the delay including evidence of a firm intention to appeal within the relevant time period; b. Prejudice to the respondent; c. The merits of the appeal; and d. The justice of the case.
[17] Where children are involved, the “justice of the case” is reflected in the best interests of the children as per Denomme v. McArthur, 2013 ONCA 694.
Reasonable Explanation for the Delay
[18] The mother submits that she required the complete reasons of the trial judge before she could reasonably articulate the grounds of her appeal. Those reasons were not available until seven days after the 30 day filing deadline.
[19] The CCAST and Ms. Law took the position that the mother could have filed her Notice of Appeal immediately following the release of the oral ruling with an Amended Notice of Appeal filed after the reasons were released. They point to emails filed by the mother between and Ms. Jesssica Gagne, a lawyer whom the mother consulted about the appeal. Those emails reveal that the mother was aware of the possibility of amending her appeal at a later date.
[20] The mother states that she made her intention to file an appeal clear from the beginning and even during the course of the trial. CCAST responded that her references to an appeal during the course of the trial were more in the nature of threats rather than true intentions to take steps.
[21] While it is clear that the mother consulted Ms. Gagne, she remained confused about how she was to deal with a judgment that became available in two parts. She was shocked by the oral decision of the trial judge, having no expectation that A.T-W. would be removed from her care. She suffered a period of desperation and shock after the oral judgment was delivered. I accept that she needed time to collect her thoughts and decide what to do.
[22] As a self-represented litigant, the rules related to appeals would no doubt be daunting. Notwithstanding her shock about the trial judge’s decision, the mother took steps and consulted with Ms. Gagne. I find she did the best she could in the circumstances. While there is evidence of delay, I do not find it was intentional. Rather, there was an intention to appeal as soon as the oral judgment was delivered, but the intention was not properly articulated or followed through.
[23] Given all of the above, I find that there is a reasonable explanation for the delay and an intention to appeal existed shortly after the delivery of the oral judgment.
The Merits of the Appeal
[24] I do not find that there is merit in the appeal put forward by the mother. The trial judge wrote a detailed and thorough judgment which contained numerous negative findings against the mother. The trial judge was so concerned about the potential emotional harm to A.T-W. that she issued an oral judgment at the end of the trial immediately removing A.T-W from the mother’s care.
[25] The trial judge found that the actions of the mother in her videoing, recording, photographing and constant questioning of A.T-W. about the phantom sexual abuse was emotionally harmful and further, and that such harm extended to N.T.
[26] The trial judge found that the mother had continually breached the terms of her supervision order and that a further supervision order would not lessen the emotional harm experienced by A.T-W. The trial judge adverted to the evidence, gave specific example and drew reasonable conclusions before making her substantive findings.
[27] It cannot be ignored that the mother did not deny her actions in relation to the breaches of the supervision or her actions in relation to the sexual abuse. This court is of the view that an appeal court would be loath to interfere with the trial judge’s finding which are clear and well-founded.
[28] With respect to the mother’s ground of appeal in relation to s.74(2)(k), the trial judgment sets out a description of events in November 2016 when the mother made a statement alluding to why women kill their children rather than subjecting them to sexual abuse. After making this statement, the mother was involuntarily formed by the police under the Mental Health Act leaving the children without a parent to care for them. This prompted the issuing of the Protection Application by CCAST.
[29] The mother relies on the case of Catholic Children’s Aid Society of Toronto v. N.V.C., 2017 ONSC 796 which stands for the proposition that the trial court must find that the risk of harm exists at the time of the hearing.
[30] However, counsel for CCAST points out that more recent cases have favoured a flexible approach in this regard. In Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251 the court found that the approach in N.V.C. is contrary to the primary purpose of the CYFSA to “promote the best interests, protection and well-being of children.” Courts have preferred the approach articulated in Children’s Aid Society of Hamilton-Wentworth v. K.R. and C.W. in which Czutrin, J. stated that “there cannot be an absolute rule” as to the relevant date on which the court should consider whether a child is in need of protection.
[31] Therefore, given the direction of the case law on this point, it is unlikely that the mother will succeed on this part of her appeal.
[32] The mother is also unlikely to succeed with respect to her appeal in relation to the finding of risk of emotional harm under s.73 (2) (h). She complains that Dr. Ricciardi’s evidence should be rejected because he did not interview the children and because his conclusions were based on hearsay and summaries. However, the trial judge accepted Dr. Ricciardi’s conclusions and found that, while it would have been better if he had been able to interview the children and parents, “I find his opinion reliable because the summary it is based on is not only accurate, if anything, it understates the seriousness of the mother’s actions as presented in all of the evidence accepted at trial [para 163].”
[33] The mother also appeals on the ground of the manner of delivery of the judgment. That ground of appeal is bound to fail given the clear option of the trial judge to render an oral decision followed by detailed reasons. In this case, the reason for the oral decision was the extreme concern on the part of the trial judge of the effect of leaving A.T-W. in the mother’s care.
The Prejudice to the Parties and the Children including Best Interests
[34] The respondents argue that, leaving aside the issue of the lack of merit of the appeal, it would be prejudicial to them to allow the appeal to proceed as it would result in a multiplicity of proceedings.
[35] Specifically, a Status Review Application must be served on all parties by the CCAST 30 days prior to the expiry of the Supervision Orders that are the subject of the appeal. Given the delay in filing the appeal and the expiry of the Supervision Orders on July 31, 2019, the appeal could not realistically be heard before the Status Review.
[36] Ms. Law also reminded the court that the mother’s previous appeal of temporary orders made prior to the trial remains outstanding despite being told on several occasions that the appeal is moot given the trial judgment. There is therefore the potential for the respondents to be embroiled in three separate pieces of litigation, the appeal, the Status Review and the appeal of the previous temporary orders.
[37] As well, the children would be severely impacted by this litigation. They should not be caught up in a form of litigation “limbo” with their future placement being uncertain.
[38] In terms of best interests, the mother conceded during the course of the motion that it was unlikely that the children’s placement would be changed prior to the end of the school year. Her position wavered somewhat and she seemed to saying that she was not really contesting their placement, but was concerned that they did not have a voice. She insisted that A.T-W. have her own counsel despite being only four years old.
[39] Therefore, I agree with the position of the respondents for the following reasons:
a. It is inefficient and inconsistent with the primary objective of the Family Law Rules and the CYFSA to allow multiple proceedings in relation to the same children. b. The mother will be given notice of, and the right to participate in the Status Review. She can make similar arguments to the ones in her Notice of Appeal with respect to the findings made under s.74 of the CYFSA. c. As per the findings in Children’s Aid Society of Toronto v. L.T., 2016 ONSC 991, it is in the children’s best interests to bring this proceeding to a close and give the trial judge’s order an opportunity to work.
Miscellaneous Issues
[40] In her reply material, the mother raises several issues related to what she alleges is vexatious and unprofessional conduct on the part of Mr. B.W., Ms. Law, Justice Finlayson, Justice Pawagi and CCAST in this case.
[41] Specifically, she accuses Ms. Law of showing little integrity, refusing adjournments, making inflamed submissions and acting in such a way as to make the mother appear unstable and defiant. She alleges collusion between Justice Finlayson, Justice Pawagi, Ms. Law and Ms. W..
[42] I have reviewed all of the material in this file and listened carefully to the submissions of counsel. I could find nothing that would lend itself to the serious and unsubstantiated allegations of the mother. Further, these allegations were made in reply material which is not in accordance with the Family Law Rules, nor were counsel given an opportunity to respond to the allegations given the form in which they were made. Rather, counsel generously allowed the mother to file her reply material despite it being walked into court on the day of the motion, with no additional copies and in contravention of the service deadlines set out in my April 30, 2018 endorsement.
[43] As such, I make no order in relation to the additional allegations made by the mother and have completely disregarded them in the context of the test for leave required in determining the relief sought on this motion.
COSTS
[44] Neither CCAST nor Ms. Law sought costs. The mother sought costs of $500. As she was not successful, there should be no costs award in her favour.
ORDERS
[45] The relief sought by the appellant is hereby dismissed.
[46] No costs.
C. Gilmore, J.
