COURT FILE NO.: FS-18-5521
DATE: 20190117
IN THE MATTER OF Child, Youth and Family Services Act, S.O. 2017, c.C.14, Schedule 1
AND IN THE MATTER of the children:
E.G. born […], 2008
C.G born […], 2010
S.G. born […], 2011
A.G. born […], 2011
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Catholic Children’s Aid Society of Toronto
Applicant/Respondent on Appeal
– and –
N.N.
Respondent Mother on Appeal
D.G.
Appellant/Respondent Father
– and –
Children’s Lawyer
F. Husain for the Applicant/Respondent on Appeal
S. Separy for the Respondent Mother on Appeal
On his own behalf (Not appearing)
P. Senson
HEARD: January 17, 2019
RULING ON MOTION
C. Gilmore, J.
OVERVIEW
[1] The Catholic Children’s Aid Society of Toronto (“CCAST”) brings a motion to dismiss the appeal of the father, D.G. from the temporary Order of Justice S. Sherr dated October 2, 2018.
[2] The October 2, 2018 order varied the provisions of the July 4, 2018 order such that the father’s access became supervised.
[3] The father did not appear today or file any material. This was somewhat curious given the fact that he had always appeared on previous court dates and had initiated the request for an adjournment to today’s date at the last appearance. However, the material was personally served on him by the CCAST and I am satisfied that he had notice of today’s hearing, which proceeded in his absence.
[4] Counsel for the OCL and the mother indicated their support of CCAST’s position in this matter. As a result, those parties did not file material.
[5] On January 7, 2019 the Reasons for Judgment of Justice R. Zisman were released in the protection proceeding. Zisman, J. makes a finding that the children are in need of protection, awarded final sole custody to the mother and provided for supervised access to the father once a week for two hours. Zisman, J. made certain findings regarding the father including the following:
The father has shown a complete lack of understanding of the children’s basic needs….[^1]
At this time, it appears to be in the children’s best interests to continue to have contact with the father but if he persists in this behaviour there will need to be a consideration as to whether or not access needs to be terminated.[^2]
Despite the best efforts of the society workers from the CAST and the CCAST and the involvement of other service providers, no progress has been made over the years with respect to the father’s ability to understand the needs of the children or the impact of his actions on them.[^3]
[6] The January 7, 2019 judgment is a final order which supersedes the temporary order from which this appeal is taken.
[7] I advised counsel after reviewing the material and confirming that the father was not present, that I would be dismissing the appeal with reasons to follows. These are those reasons.
FACTUAL BACKGROUND
[8] The CCAST has been involved with this family since May 2017 after transfer of the file from the Children’s Aid Society of Toronto (“CAST”). The parents had already commenced domestic litigation when the CCAST began a protection proceeding in January 2018 due to concerns about the physical abuse of the children, a high level of conflict between the parents and a lack of cooperation from the father.
[9] As a result of the October 2, 2018 temporary order, the children were placed in the temporary care of their mother subject to a supervision order. The father’s access was limited to twice weekly in the discretion of the CCAST and supervised by the Society.
[10] The father served his Notice of Appeal of the October 2, 2018 temporary order on October 10, 2018. The trial in the protection matter commenced on November 19, 2018 and continued for 11 days. The father called 11 witnesses. The court also heard evidence from the clinical investigator from the Office of the Children’s Lawyer. The decision was released on January 7, 2019 as referenced above.
ANALYSIS OF THE ISSUES
[11] This motion is brought on three grounds:
a. There is no merit to the appeal
b. The Notice of Appeal is deficient
c. There is no explanation for the father’s delay in perfecting his appeal, and,
d. The appeal is moot.
Deficient Notice of Appeal
[12] Rule 38(10) of the Family Law Rules requires that a Notice of Appeal must state the order the appellant wishes the court to make, as well as the grounds for the appeal.
[13] A copy of the Notice of Appeal is contained in CCAST’s motion record at Tab 6. I have reviewed it in detail. Unfortunately, it is a somewhat rambling document which does not specify any order which it asks the court to make. It is also unclear as to the grounds on which the father relies for his appeal. He mentions a “clear violation of my children’s and I chatters of rights and freedoms (which is presumably meant to read “charter” of rights and freedoms) but the father fails to set out exactly what rights are allegedly being violated.
[14] The father also alleges an abuse of process but, unfortunately, does not provide any particulars of such abuse.
[15] In summary, I find the Notice of Appeal is deficient in that it fails to particularize the orders sought and does not set out sufficient, or any, grounds.
Delay
[16] Pursuant to Rule 38(10) of the Family Law Rules requires that, where a transcript is required, proof that it has been ordered must be provided 30 days after the filing of the Notice of Appeal.
[17] The appellant father has ordered an audio transcript of the trial but there is not proof that a proper transcript has been ordered. A transcript would be required in an appeal of this nature.
[18] Rule 38(22) of the Family Law Rules requires that the appellant’s appeal record and factum be served on the respondent and filed within 30 days of receiving notice that the evidence has been transcribed.
[19] There is no evidence that the father has taken any steps to perfect his appeal. Given all of the above, CCAST is entitled to move for a dismissal for delay.
Merits of the Appeal
[20] Not much needs to be said on this issue. The excerpts from the judgment of Zisman, J. set out in paragraph 5 above contain only some of the many negative findings made by the court with respect to the appellant’s father parenting abilities, lack of self-awareness and failure to cooperate with service providers.
[21] The trial court had 11 days in which to observe witnesses (11 of them called by the father) and assess the evidence. Examples of concerning evidence related to the father included:
a. Changing the children to a francophone school when none of them spoke French.
b. A finding that the mother was a victim of domestic violence by the father and that the children had been exposed to such violence.
c. The father and his mother physically disciplined the children. The father never acknowledged this, and as such the children remain at risk of physical harm.
d. The father failed to follow medical advice and thereby endangered the children’s well-being. Further, the court found that the father misled doctors, hospital staff and the court with respect to issues related to the children’s medical care.
e. Based on observations of various service workers involved in the file, the court found that children were at risk of emotional harm.
[22] The evidence at trial was clearly overwhelming with respect to a finding that the children were in need of protection. The trial judge meticulously set out all of the evidence in support of her findings, as well as the reasons for her credibility findings and all of the applicable case law and statutes. An appeal court finding an error in the trial judge’s reasoning with respect to either the facts or the law would be unlikely in this case. As such, there is no merit to the appeal.
Mootness
[23] I left this issue as the last one to be addressed because there cannot be any dispute with respect to the appeal issues now being moot. Given the final order dated January 7, 2019, the temporary orders of October 2, 2018 are now at an end. The appeal is therefore moot in all aspects.
[24] No costs.
C. Gilmore, J.
Released: January 17, 2019
COURT FILE NO.: FS-18-5521
DATE: 20190117
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Catholic Children’s Aid Society of Toronto
Applicant/Respondent on Appeal
– and –
N.N.
Respondent Mother on Appeal
D.G.
Appellant/Respondent Father
– and –
Children’s Lawyer
Released: January 17, 2019
[^1] Reasons for Judgment, Zisman, J. dated January 7, 2019, para 392.
[^2] Ibid at para 394.
[^3] Ibid at para 395.