Highland Shores Children’s Aid Society v. K.Y. and J.C., 2019 ONSC 5070

COURT FILE NO.: FC-17-FO000099-00

DATE: September 6, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

BETWEEN:

Highland Shores Children's Aid Society Applicant

– and –

K.Y. Respondent

COUNSEL: Jane Howlett, for the Applicant Lenard Kotylo, for the Respondent Mother

– and –

J.C. Respondent

In Person Sharon Leitch, for the Office of the Children’s Lawyer

HEARD: July 10, 2019 with Written Submissions received July 16, 17 and 18, 2019

RULING ON MOTION

N. TELLIER, J.

OVERVIEW

[1] This is a motion brought by K.Y., the respondent mother in child protection proceedings, who seeks an order to extend the time for serving and filing a notice of appeal arising from the final order of Justice Deluzio, dated January 24, 2019. After hearing argument on the merits of the motion, I became concerned about my jurisdiction. The order sought to be appealed was a final order of the Ontario Court of Justice (“OCJ”) made before the recent expanded unification of the OCJ and the Superior Court of Justice, Family Court.[^1] That court has no appellate jurisdiction, except in relation to family arbitration awards under the Arbitration Act, 1991, c. 17.[^2] Accordingly, I invited counsel to make submissions on this preliminary jurisdictional issue. For reasons elaborated below, I conclude that I do have jurisdiction. Leave to extend the time is denied.

JURISDICTION

The Positions of the Parties

[2] After the court first raised the jurisdictional question, it recessed and directed counsel to research the issue and re-attend to make submissions later that day, if possible. Upon resuming the motion, counsel for mother, the Society and the Children’s Lawyer all agreed that the correct appeal route from a final Ontario Court of Justice order is to the Ontario Superior Court of Justice. It was submitted that UFC judges are also judges of the Superior Court and, therefore, I could sit and adjudicate in my capacity as a Superior Court judge. I was urged by all to proceed to a disposition on the merits. Nonetheless I asked counsel to make further brief written submissions on jurisdiction. Mother then changed her position and now asks that the motion be transferred to the Divisional Court for consideration.

Analysis

[3] The analysis for this relief begins with Rule 38 of the Family Law Rules, O. Reg. 439/07, s. 1. Rule 38(5)(a) requires a notice of appeal to be served within 30 days after the order or decision appealed from. The time is shortened to 14 days in child protection proceedings by operation of Rule 38(2). Rule 3(5) confers discretion on the court to lengthen or shorten any stipulated time frames. Rule 1(2) provides that these rules apply to all family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice, under an enumerated list of statutes, including Parts V, VII and VIII of the CYFSA. Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. Rule 2(1) defines court as “the court in which the case is being heard.” This means the motion to extend time must be heard in the same court which has jurisdiction to hear the appeal.

[4] By operation of the Constitution Act, 1867, (UK), 30 & 31 Victoria, c3, family law is an area of shared jurisdiction between the federal and provincial and territorial governments. Jurisdiction over family law matters in Ontario has historically been divided between two levels of court with their current names being the Superior Court of Justice and the Ontario Court of Justice. The SCJ has sole authority over matters under the Divorce Act R.S.C., 1985, c. 3 (2nd Supp.) as well as those pertaining to property. The OCJ has sole authority over child protection and adoption matters, among other things, at first instance. Both courts hear cases involving parenting and child and spousal support.

[5] This parallel but sometimes overlapping jurisdiction creates an access to justice concern for families who require a judicial remedy. It creates a legal maze the growing number of self-represented family law parties find hard to navigate. It entails somewhat confusing paths for appellate review, imposing the burden of an additional step for appellate family law litigants whose cases originate in the OCJ or UFC. The Court of Appeal for Ontario has repeatedly commented on this confusion and inequity and called for legislative reform. See for example: Christodoulou v. Christodoulou, 2010 ONCA 93; Marchildon v. Beitz, 2012 ONCA 668; Mattina v. Mattina, 2018 ONCA 867; and Preist v. Reilly, 2018 ONCA 389.

[5] The composition of all courts in Ontario is set out in the Courts of Justice Act, R.S.O. 1990, c. C.43(“CJA”). In 1977, a pilot project in Hamilton established the first court of combined family law jurisdiction in Ontario known as the Unified Family Court or “UFC”. Section 21.1 of the CJA defines the court as follows:

Family Court

21.1(1) There shall be a branch of the Superior Court of Justice known as the Family Court in English and Cour de la famille in French. 1994, c. 12, s. 8; 1996, c. 25, s. 9 (17).

Unified Family Court

(2) The Unified Family Court is amalgamated with and continued as part of the Family Court. 1994, c. 12, s. 8.

[6] Section 21.1(5) of the CJA enables the Lieutenant Governor in Council to name additional locations where the UFC has jurisdiction. Since the original pilot court in Hamilton, the UFC expanded all too slowly over the decades. On May 13, 2019, 8 new sites were added, bringing the number of sites across the province with a Family Court Branch in the SCJ with combined jurisdiction over all family matters to 50 percent. The Belleville/Picton site was part of the recent round of OCJ/SCJ family court amalgamation. This is the larger context within which the question of where the final Order of Deluzio J. ought to be reviewed arose.

[7] The applicable appeal provision is found in section 121 of Part V of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. (“CYFSA”). It provides as follows:

Appeal

121 (1) An appeal from a court’s order under this Part may be made to the Superior Court of Justice by,

(a) the child, if the child is entitled to participate in the proceeding under subsection 79 (6) (child’s participation);

(b) any parent of the child;

(c) the person who had charge of the child immediately before intervention under this Part;

(d) a Director or local director; or

(e) in the case of a First Nations, Inuk or Métis child, a person described in clause (a), (b), (c) or (d) or a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

[8] The appellate jurisdiction of the Divisional Court is set out in section 19 of the CJA. It reads as follows:

Divisional Court jurisdiction

19 (1) An appeal lies to the Divisional Court from,

(a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);

(b)an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court;

(c) a final order of a master or case management master. 2006, c. 21, Sched. A, s. 3.

[9] On a plain reading of these two statutory provisions an appeal from a final OCJ order or decision under Part V of the CYFSA lies to the SCJ. The delineated appellate authority of the Divisional Court does not include a final OCJ order.

[10] The appellant relies on section 21.9.1 of the CJA for the proposition that an appeal from the OCJ to the SCJ is deemed to be an appeal from the Family Court to the Divisional Court. The wording of that section is as follows:

Certain appeals

21.9.1 A statutory provision referred to in the Schedule to section 21.8 or in section 21.12 that provides for appeals from decisions of the Ontario Court of Justice to the Superior Court of Justice shall be deemed to provide for appeals from decisions of the Family Court to the Divisional Court. 1996, c. 25, ss. 1 (4), 9 (17, 18); 1998, c. 20, Sched. A, s. 6.

[11] The ‘modern principle’ as the correct approach to statutory interpretation was first enunciated by Elmer Driedger in 1974. [^3] More than two decades later it was adopted verbatim by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21 and expressed by then Justice Iacobucci as follows:

[T]here is only one principle or approach, namely the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the objectives of the Act, and the intention of Parliament.

[12] The interpretation of section 21.9 of the CJA advanced by counsel for mother falls short of that approach. It ignores both the full text of the actual provision as well as its purpose. The section begins with the language “A statutory provision referred to in the Schedule to section 21.8 or in section 21.12 that provides for decisions ….” Those introductory words have meaning and are necessary to achieve the provision’s purpose. I accept the Society’s submissions that the purpose of this section is to provide a mechanism for appeals from the UFC because the CYFSA does not expressly refer to jurisdictions with UFCs. And as counsel for the OCL points out, the effect of 21.1.9 is to modify section 121 of the CYFSA, which directs appeals of a final child protection order from the OCJ to the SCJ, such that as of May 13, 2019, final protection orders from a UFC or Family Court must be appealed to the Divisional Court.

[13] Counsel for mother also directed the court’s attention to section 21.10 of the CJA which addresses the Family Court’s jurisdiction regarding orders of a predecessor court as follows:

Orders of predecessor court

21.10 (1) The Family Court may hear and determine an application under an Act to discharge, vary or suspend an order made by the Provincial Court (Family Division), the Ontario Court of Justice, the Superior Court of Justice or the Unified Family Court. 1994, c. 12, s. 8; 1996, c. 25, s. 9 (17, 18).

Same

(2) The Family Court may enforce orders made by the Provincial Court (Family Division), the Ontario Court of Justice, the Superior Court of Justice or the Unified Family Court. 1994, c. 12, s. 8; 1996, c. 25, s. 9 (17, 18).

[14] He submits the Family Court’s jurisdiction under this provision to hear applications to discharge, vary, suspend or enforce orders of the OJC “implies [emphasis added] that Ontario Court of Justice Orders are being treated as Family Court orders, i.e. Superior Court orders.” This proposed interpretation rests on a narrow construction, which ignores the whole of the legislative scheme for either transitional provisions or appeal routes for OCJ final orders that may be caught up in a site transitioning to the UFC. While there is no express provision in either the CJA or CYFSA that addresses this narrow and likely rare category of cases like the present one, there are other provisions in both those statutes which inform the analysis.

[15] The legislature specifically contemplated transitional measures as expressed in the CJA and companion regulations. These transitional provisions are directed at pending matters and are as set out below:

Transitional measure

21.3 (1) All proceedings referred to in the Schedule to section 21.8 or in section 21.12 that are pending in the Superior Court of Justice or the Ontario Court of Justice in an area named under subsection 21.1 (5) as an area in which the Family Court has jurisdiction shall be transferred to and continued in the Family Court.

Same

(2) If a judge sitting in the Ontario Court of Justice is seized of a matter in a proceeding that is the subject of a transfer under subsection (1), the judge may complete that matter. 1998, c. 20, Sched. A, s. 22 (5).

[16] Section 21.8(3) of Courts of Justice Act Section 21.3(1) above stipulates matters pending in the OCJ or SCJ will be transferred to and continued in Family Court where such courts are established. Section 21.3(2) permits an OCJ judge who is seized of a matter, which is subject to transfer, to retain jurisdiction and complete the matter.

[17] The CYFSA Transition Regulation Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 contains a general transition rule which provides that proceedings commenced under the precursor Part III of Child and Family Services Act, R.S.O. 1990, c. 11 will continue under Part V of the CYFSA. In the Ontario Court of Appeal’s recent decision in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the court was called upon to consider the wording of the CYFSA Transition Regulation in a child protection proceeding that had been heard by an appellate court just before the CYFSA came into effect but the ruling itself was not rendered until shortly after the new Act becoming effective.

[18] Justice Benotto’s decision, authored on behalf of a unanimous Court of Appeal, has much to offer those who toil in the trenches of child protection law. But it is specifically instructive to this case in clarifying the distinction between pending cases and those which are concluded. This case concerns an appeal from a final OCJ order arising from a Status Review Application pursuant to section 113, Part V of the CYFSA. Justice Deluzio delivered a final ruling on a summary judgment motion. This means this matter is completed or concluded, as opposed to pending, within the meaning of the CJA and the CYFSA.

[19] As part of any textual analysis in the exercise of statutory interpretation, a court is directed to consider any implied exclusion. An implied exclusion arises whenever it is believed that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly.[^4] This principle of interpretation is also known as the Latin maxim expressio unius est exclusio alterius: to express one thing is to exclude another.

[20] The CJA contains specific statutory provisions for the transition of matters from OCJ to the Family Court. As detailed above, they only pertain to pending matters. If the legislature intended to capture cases which are concluded, in addition to those cases which are pending, in a manner that differs from the extant transition and appeals provisions for final OJC orders in the CJA or the CYFSA, it would have expressly done so. This analysis leads to the conclusion that an appeal from a final OCJ order continues to lie to the SCJ, including in UFC sites.

[21] But the resolution of the jurisdictional issue does not end there. The question remains whether the newly amalgamated Family Court, where this motion regarding an appeal was brought, and which has no appellate jurisdiction in relation to final OCJ orders, can reconstitute itself as the Superior Court of Justice, to assume jurisdiction to dispose of this motion.

[22] In Christodoulou Justice MacPherson considered whether appeals from the Family Court Branch of the SCJ in cases under the Hague Convention [^5] properly lie to the Divisional Court or the Court of Appeal. The appellant submitted that the Family Court judge must have been acting as a Superior Court judge when she made the order and thus the appeal was properly before the Ontario Court of Appeal. This submission related to an order made in proceedings arising from different statutory schemes than the CYFSA at play here, namely the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Children’s Law Reform Act, R.S.O. 1990, chapter C.12. This argument was rejected by McPherson, J.A. who “conclude[d] that the decision of the Family Court Judge should be viewed as decision of a Family Court Judge…” [^6]

[23] The circumstance in which this court now finds itself is distinguishable. In Christodoulou, the appellant’s submission may be viewed as an attempt to avoid having to start afresh in Divisional Court, relying upon an ex post facto construction of how the judge was exercising jurisdiction. Here I am being asked, while still seized, to exercise my broad powers as an SCJ judge to render a prompt ruling.

[24] Further, I do not take the court’s conclusion in Christodoulou that the decision of the Family Court Judge should be viewed as a decision of a Family Court Judge to mean that any decision of all Family Court Judges will always be construed as decisions of the Family Court Branch or UFC, given their broader powers as SCJ judges generally. This conclusion must be read in the fuller context of the specific facts of that case and the legislative schemes from which the order under discussion emanated.

[25] The composition of the Family Court is found in section 21.2 (1) of the CJA. The Family Court consists of, in part, the judges of the Superior Court of Justice appointed to be members of the Family Court, the number of whom is fixed by regulation under clause 53 (1) (a.1) and the judges of the Superior Court of Justice assigned to the Family Court by the Chief Justice from time to time. 1994, c. 12, s. 8; 1996, c. 25, s. 9 (14, 17); 1998, c. 20, Sched. A, s. 4 (1).

[26] Section 21.2(3) of the CJA provides that every judge of the Superior Court of Justice is also a judge of the Family Court. 1994, c. 12, s. 8; 1996, c. 25, s. 9 (17). Under section 21.2(4) “the Chief Justice of the Superior Court may, from time to time, temporarily assign a judge referred to in 21.2(1)(d) or (e) to hear matters outside the jurisdiction of the Family Court 1998 c.20, Schedule A s.22(4). Subsection (d) and (e) both refer to judges of the Family Court.

[27] Specialist judges with a family law patent who are appointed to the UFC are expected to perform the bulk of their duties resolving family law disputes at first instance. But they are also members of the Ontario Superior Court of Justice and have all the same jurisdiction, powers and authority as judges appointed to the SCJ. They are members of the Divisional Court and are members, ex-officio, of the Court of Appeal for Ontario. This power promotes the administration of justice by allowing judges to function in more than one singular role when appropriate and when assigned to do so.

[28] One of the articulated aims of the establishment and expansion of a Family Court was to provide the public with a more streamlined, accessible process. In my view, any approach to a jurisdictional question in the family law context must be guided by the primary objective found in Rule 2 of the Family Law Rules, O. Reg. 439/07, s. 1. which is reproduced, in part, below:

Primary objective

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

Dealing with cases justly

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

Duty to promote primary objective

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

[29] It would be an unjust outcome if I were to read Christodoulou to preclude me from rendering any decision other than as a UFC judge. This would require me to transfer this motion for a complete reconsideration on the merits to one of my colleagues in the SCJ who occupy Chambers along the same corridor as mine. This would be contrary to my duty to promote the primary objective of the Family Law Rules. That primary objective is to deal with cases justly. This includes the duty to ensure that the process is fair and to deal with cases in a way that is appropriate to their importance and complexity. The duty also requires me to attempt to save time and expense and, notably, to allocate court resources appropriately having regard to the nature of the cases before me.

[30] It would be contrary to the Family Court’s commitment to more accessible and cost-efficient processes if I were to deny the request of both the Office of the Children’s Lawyer and the Society to reconstitute the Family Court in which this motion was bought as a Superior Court of Justice.

[31] In the context of these unusual circumstances, pursuant to section 21.2(4) of the CJA, I sought permission from the Chief Justice of the Ontario Superior Court of Justice to be assigned in this fashion. Chief Justice Morawetz granted the requested assignment. This result ensures a timely disposition of the motion by a court of competent jurisdiction. This result allows the parties to avert the cost and delay arising from a transfer to the SCJ. This result is an appropriate and efficient re-allocation of judicial resources as it avoids the need for another SCJ judge to conduct an entirely new hearing, independently reassess the evidence on the motion and then conclude the matter with the delivery of reasons. Notably, the appellant herself initially requested this remedy.

[32] Although Christodoulou also concerned a child this fact was not integral to the analysis regarding the disposition of the jurisdictional question. This case concerns a 12 year old child for whom a significant portion of her short life has been spent in child protection proceedings. It is contrary to her best interests that this matter be delayed by its transfer to a different SCJ judge. In sum, the only just resolution of this jurisdictional conundrum that comports with this court’s duties under the Family Law Rules, is for me to adjudicate the motion in my capacity as an SCJ judge so that this matter can be concluded on its merits.

MOTION TO EXTEND TIME FOR APPEAL

The Test for Leave to Extend Time to Commence an Appeal

[33] In determining whether to extend the time to file and serve a notice of appeal the court shall consider the following factors:

a. whether the appellant formed a firm intention to appeal within the relevant period;

b. the length of the delay and the explanation for the delay;

c. any prejudice to the responding parties or, where the matter involves a child, prejudice to the child;

d. the merits of the appeal; and

e. whether the justice of the case requires it.[^7]

The weight to be given each factor will vary according to the facts. The final consideration, namely whether justice requires an extension of time, confirms the court’s broad discretion to decide the issue on a case-by-case basis.

Intention to Appeal

[34] At paragraph 4 of her affidavit sworn June 25, 2019 K.Y. deposes: “At all material times I intended to appeal the said order, but I did not have the resources to do so.” Apart from this bald assertion, there is no evidence to support the contention that the respondent expressed her intention to appeal to any of the parties or persons who would have been entitled to notice within 14 days or, no later than February 3, 2019.

[35] The affidavit of child protection worker Winnifred Alexander dated July 4, 2019, filed on behalf of the Highland Shores Children’s Aid Society confirms this at paragraphs 17 to 22 insofar as their awareness of intent is concerned. Counsel for the Office of the Children’s Lawyer also confirmed they were not made aware of such an intention. The respondent father, J.C., was only just served with the motion materials on the eve of the motion. He did not have an opportunity to file any responding materials but indicated his desire to have the matter proceed that day, as well as his willingness to rely on the submissions of the Society, with which he concurred. I am not satisfied on the evidence that the appellant formed an intention to appeal within 14 days of the final order being made.

Reasons for and Length of Delay

[36] K.Y.’s explanation for her delay relates to the need to apply to the Ontario Legal Aid Plan. Access to justice through adequate representation is an important aspect of all family law proceedings, particularly child protection matters. Securing state funded representation can take time. The Society notes in their submissions, K.Y. has been engaged with Legal Aid Ontario’s duty counsel system for some years now. She was also represented by senior child protection counsel on the Summary Judgment Motion. Her affidavit in support of this motion is notably silent on the timing of her efforts to seek legal aid funding. Likewise, no dates are provided in relation to K.Y.’s efforts to secure fresh counsel or the timing of the contact between her appellate counsel and K.Y.’s previous counsel regarding the alleged problems in securing the entire file contents.

[37] In reply, counsel for the mother submitted that he did not provide more detail about the timing of K.Y.’s efforts to secure legal aid and appellate counsel in her affidavit because to do so would constitute a waiver of her solicitor-client privilege. I reject that argument on these facts.

[38] In Laurent v. Laurent, 2019 CarswellOnt 9114, Akbarali J. summarizes the law on waiver where the court was asked if the wife had waived privilege when she referred to correspondence between herself and her counsel. At issue was the date of separation. It is well established law that solicitor-client privilege is not absolute; it can be waived expressly or impliedly by the client; and the question of whether deemed waiver has occurred must be determined on a case-by-case basis.

[39] Justice Akbarali cites Benson v. Kitt 2018 ONSC 7552 at paragraph 38 of her decision wherein Monahan J. rules that “a deemed waiver and obligation to disclose privileged communication requires two elements: (i) the presence or absence of legal advice must be relevant and material to a claim or defence; and (ii) the party who received the legal advice must make the receipt of it an issue in the claim or defence”.On this analysis, limited information about the timing of mother’s legal aid application and the timing of her first contact with appellate counsel would not amount to a waiver of her privilege pertaining to the content of such communications about the merits of her leave motion or her appeal.

[40] Given the limited evidence before me, it is impossible for me to conclude whether the delay is systemic, whether it results from the mother’s own lack of timeliness, or both.

Prejudice to the Parties and the Child

[41] K.Y. bears the onus of demonstrating that an extension of time will not cause prejudice. At paragraph 19 of her affidavit she states there is no prejudice to the respondent father J. C. because he knew of her intention to appeal. She fails to elaborate by what means she communicated this intention to him or precisely when. Her vagueness in this regard is troubling. She also argues there is no prejudice to the respondent father as his parenting circumstances remain unchanged since June 2017.

[42] What has changed is that as of January 24, 2019 these proceedings came to a conclusion, providing the child, now aged 12, who is at the heart of this matter, with the security and stability of a permanent plan for her parenting arrangement, in the care of her father.[^8] The OCL submits that the child is prejudiced as she will become aware that her parenting arrangement is not stable because it is back before the court. The Society, like the OCL, argues that granting the relief is prejudicial to the child who has already been the subject of proceedings which were protracted by the litigation conduct of the mother and that the child is entitled “not to spend many more months of her life in child protection court”. I agree and find that further delay is prejudicial to the child. Mother’s counsel failed to address the issue of prejudice to the child in his submissions.

[43] Pointing to the history of the respondent mother’s approach to the prior proceedings, the Society raised a concern that if leave were granted she would not pursue the appeal in a timely fashion. The Society noted her current counsel, who characterizes his retainer as limited in scope, might not be around to stay the course. There is merit to this concern having regard to the absence of any evidence in support of this motion about who might be available to provide the expert medical evidence the mother believes to be so critical or when. Indeed, I would have expected to receive a proposed litigation plan with timelines in support of the requested extension. Further delay increases the prejudice to the child. Based on the foregoing, I find that the K.Y. has failed to discharge her onus regarding this factor.

Merits of the Appeal

[44] The draft notice of appeal asserts the reversible error arises from the judge’s failure to consider properly the nature of the mother’s medical condition of missing genetic information[^9]. The draft notice states that the judge required expert evidence from a geneticist to enable Her Honour to assess the respondent mother’s and the child’s medical needs. As this evidence was not available on the summary judgment motion, the mother argues that the final order on the summary judgment motion should be set aside and that there ought to be a trial, at which such evidence would be tendered. The motions judge rendered reasons orally. The transcript of those reasons was not provided to me by counsel for the mother as part of her motion materials.

[45] To assess the merits of the appeal, I have reviewed the Continuing Records in both the Child Protection Application and the Status Review Application including the Summary Judgment Motion which gave rise to the order the mother seeks to appeal. Mother’s claims regarding her medical condition and that of her child were core companion issues throughout these proceedings. The original protection concerns as pleaded in April 2017 included that “the child was at risk of serious physical harm as a result of being over medicated and being subjected to intrusive and unnecessary medical procedures and treatments.” The history that follows was gleaned, in part, from the affidavit of child protection worker Liz Martin, sworn

March 26, 2017, as well as the extensive medical documentation and literature tendered by mother on the summary judgment motion.

[46] Since the essence of mother’s appeal is that the judge was not informed about the potential symptoms and medical conditions arising from her and her child’s shared missing genetic information condition, known as 1q21.1 microdeletions, I list below the evidence that was available at the hearing as follows:

1. a letter from Dr. Christine Armour, clinical genetist at the Kingston General Hospital and Queens University Medical Genetics Unit to Dr. Dawa Samdup dated January 29, 2009;

2. a letter from Dr. Christine Armour to Dr. Karen Brockway dated July 9, 2009;

3. a jointly authored letter from Dr. Christine Armour and Rebecca Kerr, genetic counsellor, to the parents dated September 23, 2009;

4. a letter from Dr. Christine Armour to the parents dated May 14, 2014;

5. a letter from Dr. Christine Armour to Dr. Vanier, pediatrician, dated May 14, 2014;

6. a jointly authored letter from Dr. Jennifer MacKenzie, clinical geneticist and pediatrician, and Courtney Kiss, genetic counsellor, to Dr. Flavin, pediatrician, dated April 21, 2016;

7. a jointly authored letter from by Dr. Andrea Guerin, medical geneticist, and Courtney Kiss, genetic counsellor, to Dr. Michael Flavian, dated October 4, 2016;

8. a jointly authored letter from Dr. Andrea Guerin and Dana Shaevitch, genetic counsellor, to “family member” (being the mother), dated January 11, 2018;

9. a jointly authored letter from Dr. Lauren Badalato, geneticist, and Dana Shaevitch, genetic counsellor, to mother dated February 12, 2018;

10. a letter from Dr. Maram Altuwariqi, clinical fellow, to Dr. Jagdeep Walia, dated December 4, 2018;

11. a Joint Hypermobility/Hypermobile Ehlers Danlos Syndrome Factsheet, from the Division of Medical Genetics, KGH, dated February 2018; and

12. several undated articles regarding 1q21.1 microdeletion including one from the Italian Journal of Pediatrics, originating from the Medical Genetics Unit of KGH.

[48] In the July 9, 2009 letter from Dr. Armour to Dr. Brockway, Dr. Armour confirms that genetic testing was undertaken on H.Y-C, the results of which were conveyed to her parents on June 29, 2009. At the time, the child was two years old and appeared to be exhibiting signs of developmental delay, autism and balance issues. That letter states:

We explained to the parents that it is very difficult to attribute which of her syndromes may be attributed to one or the other deletion. At present there is insufficient information in the literature to be more specific. Given the extreme range of findings that can be seen with the larger deletion, including cardiac anomalies (major and minor), I think it would be reasonable to refer [H] for a pediatric cardiac assessments.

The report goes on to say that the child will be seen again in six months’ time.

[49] The letter dated September 23, 2009 indicates that mother was also tested with those results revealing she also has a “small piece missing (deleted) on one of [her] chromosomes.”

[50] The child’s full medical history is not in evidence but according to the affidavit of Liz Martin, sworn March 26, 2017, sometime in 2012, the child’s reported diagnosis of Autism Spectrum Disorder (“ASD”) was reviewed by a psychologist, Ms. Clifford who concluded she did not meet the criteria for ASD. This occurred around the time of the Society’s earlier involvement with the family. The parents rejected the clinical conclusions of Ms. Clifford about ASD and stated they would obtain a second opinion. The affidavit notes that Ms. Clifford expressed her working hypothesis that mother might be suffering from Munchausen Syndrome by Proxy. At this juncture, the Society did not initiate an investigation but, according to Ms. Martin’s evidence, did follow up with the parents to ensure proper supports were in place.

[51] In September 2015, the Society received a referral from Dr. Storr, a pediatrician at Kingston General Hospital (“KGH”). He reported that the child was referred by Dr. Vanier, her paediatrician, for poor growth concerns. He reported that mother brought the daughter in stating she was not growing and choked at school; she was concerned the child might die if she choked and claimed that she would not eat or drink anything on her own unless prompted. She claimed the child was developmentally delayed and informed Dr. Storr she had demanded the school place her in a life skills class. Mother reported the child was anxious before going to school and the parents had trouble getting her out of the house. As a result, the child had been withheld from school.

[52] Dr. Storr reported to the Society that he contacted the child’s school directly and spoke with the vice- principal who informed him that an assessment of the child had been completed the previous year which demonstrated she was bright. The vice-principal described her as being the brightest child in her class. Dr. Storr had the child read to him and she read a book beyond her grade level. She was reported as being able to eat independently, was socially capable and exhibited no behavioural problems or conduct disorder that would warrant the parents’ demand for an Educational Assistant to be assigned exclusively to her. Dr. Storr also reported that mother had also asked the school to provide sensory breaks for the child while at school but neither he nor the school staff observed any sensory issues.

[53] The child had been admitted to the KGH for a week of observation at the time these concerns were reported. Dr. Storr described H.Y-K. as a healthy child with a minor nose malformation on the inside described as a palette problem, a variation in structure where mucus goes back up her nose and affects her speech. In his opinion no surgery was required. He reported she had followed a normal growth pattern in height and weight. While in hospital, she was observed eating independently and not needing any prompting to do so.

[54] Dr. Storr did not refer to what he was observing as Munchhausen Syndrome by Proxy. According to Ms. Martin’s evidence, he referred to it as “vulnerable child syndrome”, which entails children being perceived by their parents to be at risk for behavioural, developmental or medical problems. It was his view that the child’s attendance at school should be mandated.

[55] This referral led to an investigation, with the Society attempting to assist the family on a voluntary basis. Mother stated that she wanted the child to return to school and that the family had good community supports. The Society file was closed.

[56] The child was re-admitted to the KGH on March 16, 2017 for another comprehensive medical work up and was discharged on March 24, 2017. The purpose of the admission was to explore mother’s claims about H.Y-C’s various medical conditions The progress notes from that hospital admission and the affidavit sworn by Ms. Martin, who attended at the hospital and met with staff, including a paediatrician, a respirologist, a social worker and a pediatric dietitian, reveal that, once again, many of the physical symptoms and ailments and behavioural issues reported by the mother were not self-reported by the child and in some cases denied by the child. Many of the symptoms and behaviours were not observed by the members of the healthcare team. Lastly, the medical test results did not warrant the continued use of medications and treatments being administered by the parents.

[57] Justice Malcolm’s ruling on June 26, 2017 at the temporary care and custody hearing includes findings that mother’s claims regarding the child’s special needs, such as difficulty eating and the risk of food aspiration, an inability to regulate her internal temperature, and a need for the child to be cued to ensure she goes to the bathroom, were not borne out by the objective medical evidence. Malcolm J. noted that Dr. Vanier reported in a note dated June 15, 2017 that the child was healthy. Dr. Vanier did not corroborate any of mother’s claimed medical problems in that note. The mother did not appeal that order.

[58] On July 18, 2017 Malcolm J. recommended the matter proceed by way of summary judgment motion and noted in her endorsement that the respondent mother requested the earliest available date which was September 28, 2017. About 6 weeks prior to that motion, mother’s lawyer was removed as counsel of record, so she was unrepresented at the hearing.

[59] On September 28, 2017, Justice Deluzio made a final order in which she made a finding that the child was in need of protection and placed her in the care and custody of her father, subject to Society supervision for nine months. Access with her mother was to occur at the discretion of the Society, in accordance with the child’s wishes, and to be supervised by the Society or a third party approved by them. This order was not appealed.

[60] In the context of the Status Review Application, Justice Malcolm’s endorsement of October 2, 2018 notes that the child is doing well, that according to Dr. Vanier she has no serious medical issues, although “the mother continues to believe that she does.” On December 18, 2018 after mother had sought and received several adjournments of the set date to secure counsel and prepare her case, a summary judgment motion was scheduled for January 24, 2019. It was noted that the mother was seeking a psychiatric consultation and she was granted leave to bring a motion to file it late, if she procured one for use on the summary judgment motion.

[61] The Society attempted to assist mother in procuring a psychiatric assessment for her use on the summary judgment hearing. More particularly, the Society sourced and suggested a referral to Dr. Chimdi Uhoegba, a psychiatrist at the Peterborough Regional Health Centre. They conveyed that Dr. Altrow, who knew K.Y., would assist in the referral process. The Peterborough Regional Health Center declined the referral on the basis that they do not conduct assessments for “legal, child custody or insurance claims.”

[62] The summary judgment motion proceeded on January 24, 2019, with mother in attendance. She was represented by experienced child protection counsel. Justice Deluzio placed the child in the care and custody of her father, with Society supervision for nine months and provided for supervised access with the mother in the Society’s discretion.

[63] At the time the summary judgment motion was heard, the child had been subjected to at least two extensive and intrusive medical work-ups at the Kingston General Hospital, spanning several days. Mother’s medical concerns about the child were not corroborated. Therefore, those medical assessments confirmed the Society’s protection concerns that the mother persistently pathologized the child and was intent on providing “treatment” that was not only unnecessary but potentially emotionally and physically harmful to the child. Notably, mother refused to exercise her access to her child on the basis that on such visits she would be prohibited by the Society from administering treatments (such as repeated nasal suction) and she did not wish to be put in the position of causing her daughter harm due to this ‘hands off’ supervision stipulation by the Society.

[64] Dr. Altrow’s Psychological Assessment Report of K.Y. dated March 4, 2018 and his Addendum dated March 19, 2018, form part of the Continuing Record. The main report was prepared in relation to K.Y.’s entitlement to ODSP and contains a disclaimer that it is not intended to be a parenting capacity assessment or to be used for the purpose of decisions pertaining to child custody and access. Nonetheless it was appended to the Society worker’s affidavit in support of their Summary Judgment motion on the Status Review Application. It does not appear anyone objected to its inclusion on the motion.

[65] In addition to his own clinical assessment, which included clinical interviews and psychometric evaluation, Dr. Altrow reported that he had the benefit of “an extensive body of reports from Quinte Healthcare”. Dr. Altrow opined that K.Y. has “a substantial mental impairment”. He diagnosed her with major depressive disorder. In his Addendum Report, apparently authored after receipt of the medical reports, he added a diagnosis of borderline personality disorder. He recommended, among other things, that K.Y. participate in long-term counselling.

[66] His report references a long list of self-reported medical conditions by K.Y. He identifies K.Y. as having a “lq2l.1 microdeletion.” Dr. Altrow’s report does not elaborate on what the medical significance of that is. In his report, “[a] mutation on the BRCA2 gene” is also noted. This mutation is associated with a greater risk of breast or ovarian cancer.

[67] Mother argues that this genetic condition is of such a complexity that the matter should not have proceeded by way of summary judgment without expert evidence from a geneticist to explain it to the court. At paragraph 17(d) of her Affidavit sworn June 26, 2019, she claims that the “condition of missing genetic information, could produce medical conditions including autism spectrum disorders, delayed development, and onset mood and anxiety disorders and motor skills impairment, including commencing in adulthood.” At paragraph 6 of her draft notice of appeal the list of possible symptoms also includes hyperactivity and sleep disorders. The crux of K.Y.’s argument as to why the child should be in her care is that since both she and the child suffer from the same genetic abnormality, her experience of the disease makes her the best parent to guide the child through any future onset symptoms arising from the medical condition.

[68] Contrary to the claims in the draft notice of appeal that the court lacked important medical evidence from a geneticist necessary to make a proper determination of the issues, the medical evidence and literature submitted by mother regarding her and the child’s genetic abnormalities is both comprehensive and accessible. It included several letters or reports by treating genetic specialists and counsellors. Their evidence can properly be characterized as the opinion evidence of participant medical experts.

[69] Additionally, the mother’s documents brief included medical literature regarding this genetic abnormality and all of the potential late onset problems that might develop.[^10] The letters and reports were deliberately drafted in language that is accessible to the lay patient or parent. In my review of this evidence, I was able to arrive at a clear understanding of the genetic deletion and its possible sequlae, without the need for clarification or elaboration through additional medical expert opinion evidence from a different geneticist. The mother’s grounds of appeal as they relate to a material gap in the medical evidence is not borne out by the record.

[70] Regrettably, the mother steadfastly refuses to accept that although her child has a genetic abnormality, and does have a small facial deformity, she is otherwise a healthy child. Rather she is convinced that the child exhibits many of the possible symptoms described in the reports and literature she was provided to educate her about the condition. She continued in that belief even after being provided with medical assessments that unequivocally ruled out her reported symptomology of the child.

[71] Dr. Altrow’s diagnoses of the mother included major depressive disorder and borderline personality disorder. Although those diagnoses were formulated for a different context, namely her ODSP application, they do provide the court with important information regarding mother’s mental heath status. There was no evidence that she engaged in any treatment or counselling as recommended.

[72] Mother refused to exercise supervised access. This withdrawal from the mother-child relationship demonstrates she is unable to put her child’s interests before her own. Based on all of the foregoing, I conclude that the mother’s appeal lacks merit.

Justice of the Case

[73] As elaborated by Gilmore J. in Catholic Children’s Aid Society of Toronto v. A.T, a child’s best interests are central to the consideration of whether the justice of the case warrants an extension of time.[^11] In my view, any extension would be contrary to the best interests of this child who has endured numerous unnecessary medical examinations and treatments at the urging of her mother. She deserves the security of this court’s confirmation of her current parenting arrangement, which, on the evidence, is meeting all of her needs.

CONCLUSION

[74] In the result, I conclude that an appeal from a final order of the Ontario Court of Justice lies to the Superior Court of Justice not the Divisional Court, as submitted by the mother. I also conclude that in my capacity as a Superior Court Judge, I have the authority to dispose of the motion. After considering all of the factors as they apply to the facts here, the motion for an extension of time to launch an appeal is dismissed.

Released: September 6, 2019 Nicole Tellier, J.

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF K.Y. and J.C.

BETWEEN:

Highland Shores Children’s Aid Society

-and-

K.Y. and J.C.

RULING ON MOTION

Tellier, J.

Released: September 6, 2019

[^1]: This court is still commonly called the “UFC”. The UFC amalgamated and continued in the Superior Court of Justice (“SCJ”) in 1994. [^2]: See section 21.8 (3) Courts of Justice Act, RSO 1990, c C.43. [^3]: Ruth Sullivan, Sullivan on the Construction of Statutes (Toronto : LexisNexis, 6th ed. 2014), citing Elmer A. Driedger, The Construction of Statutes (Toronto: Butterworths, 1974) at p.7. [^4]: Ruth Sullivan, Sullivan on the Construction of Statutes (Toronto: LexisNexis, 6th ed. 2014). [^5]: Convention of the Civil Aspects of International Child Abduction, Schedule to the Children’s Law Reform Act, RSO 1990, c C.12; 22(2) – 46(2) – 46(5). [^6]: Christodoulou at para. 29. [^7]: Catholic Children’s Aid Society of Toronto v. A.T. et al, 2019 ONSC 3191; Bruno Appliances and Furniture v. Cassels Brock & Blackwell LLP, 2011 ONCA 67. [^8]: Parenting orders are technically never final as they are subject to review or variation. [^9]: The entire draft Notice of Appeal is appended to these reasons as Schedule “A”. [^10]: The medical articles ought not to have been admitted, unless through an expert. There is no notation in the file removing them on the basis of any objection. They were not necessary to describe the condition as this was amply described by the genetic health care providers in their communications with mother, which were before the motions judge. [^11]: See also Denomme v. McArthur, 2013 ONCA 694.