COURT FILE NO.: FS-22-0096-00
DATE: 2022-10-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Children’s Aid Society of the District of Thunder Bay
Applicant
M.C. Chambers, for the Applicant
- and -
P.V.
Defendant/Respondent
M. Cupello, for the Respondent
HEARD: September 22, 2022, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This 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.-(7) Order excluding media representatives or prohibiting publication. – 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.
(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 persons 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.
- – (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.
Reasons On Motion
Overview
[1] There are two motions before me. The Society brought a motion, returnable May 18, 2022, to dismiss the respondent’s appeal for delay. The appeal, dated April 7, 2022, was from the order of Belda J. of the Ontario Court of Justice finding the child in need of protection, placing the child in extended society care and denying access to the respondent mother.
[2] By motion returnable August 3, 2022, the respondent sought to extend the time to perfect the appeal.
[3] Both motions were heard together on September 22, 2022.
[4] For the reasons outlined below, the respondent’s motion to extend the time to perfect the appeal is dismissed and the Society’s motion to dismiss the respondent’s appeal for delay is granted.
The Facts
[5] The child was apprehended immediately after birth and initially placed with foster parents. However, at the request of the respondent, the child was placed with her half-sister and her partner at four months. The child has remained in the care of her half-sister and partner since then. The child is now three years and four months old.
[6] The decision under appeal was a summary judgment motion. The motion was heard on March 7, 2022. The respondent mother did not attend despite a request from the court that she do so. She was given notice of the hearing at least by November 9, 2021.
[7] The motion judge carefully considered whether it was in the best interests of the child to proceed in the absence of the respondent mother and decided that it was appropriate to proceed.
[8] The notice of appeal was filed within 30 days of the summary judgment decision. The notice of appeal seeks to set aside the order denying the respondent mother access to her child only.
[9] Three affidavits were filed from the Society on the motion. While an affidavit was filed by counsel for the respondent mother, there is no evidence from the mother before me.
The Positions of the Parties
[10] The parties agree on the test to be applied in determining whether an extension should be granted to perfect the appeal:
whether the appellant formed an intention to appeal within the relevant period;
the length of the delay and explanation for the delay;
any prejudice to the respondent;
the merits of the appeal; and
whether the “justice of the case” requires it[^1].
[11] The respondent mother argues that she is ready to perfect her appeal and should be given an opportunity to contest the decision denying her access.
[12] The Society argues that the best interests of the child favour certainty and stability in her young life. The Society notes that no explanation has been offered for the mother’s failure to attend the motion and that there is nothing to indicate that the evidentiary record would have been any different had the mother attended.
Analysis and Disposition
[13] As found by the motion judge, the respondent mother is “homeless, transient and uncooperative with the Society.” Her access to her child has been irregular. The last “in person” visit was in July 2021. “Sporadic participation” in the legal process has been “common”. There is no evidence of steps taken to participate in the process since the respondent was advised of the motion date in November 2021.
[14] The trial judge carefully considered whether an adjournment should be granted even though there was no request for an adjournment before her and concluded that a reasonable exercise of her discretion would have been to proceed with this motion even if a request for an adjournment was made.
[15] In her comprehensive reasons the motion judge set out the reasons for her conclusion that the child was in need of protection, that the child should be placed in extended society care, and why there should be no access by the respondent mother.
[16] In her reasons denying access the motion judge referred to the evidence before the court as “extensive” and noted that there is “detailed information with respect to the challenges in both the mother attending for access, as well as how poorly the access that has proceeded has gone.” She noted that the mother had forgone access for approximately eight months as at the date of the motion.
[17] The motion judge stated:
Unfortunately, there is no evidence to support that a consistent, productive and positive relationship could be formed. All we know now is that the child is disrupted by access visits and that in person visits might threaten the child’s feelings of safety and security, and even her health.
[18] The evidentiary record from the respondent mother for these motions is nonexistent. There is no explanation for the delay though the delay is, on its face, not significant. I accept the argument of the Society that there is prejudice to the child in further delay. As to the merits of the appeal, the evidentiary record before the motion judge supports her conclusions and there is no evidence before me that the evidentiary record would have been any different had the mother participated. As to the “justice of the case”, in this case, I agree with the Society that the best interests of the child with respect to certainty and stability favour not granting leave to extend the time to perfect the appeal.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: October 5, 2022
COURT FILE NO.: FS-22-0096-00
DATE: 2022-10-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Children’s Aid Society of the District of Thunder Bay
Applicant
- and -
P.V.
Respondent
REASONS ON MOTION
Newton J.
Released: October 5, 2022
[^1]: See for example Kenora-Rainy River Districts Child and Family Services v. S. (D.), 2018 ONSC 4358 at para. 5.